Highland Park Manufacturing Co.

In the Matter Of HIGHLAND PARK MANUFACTURING COMPANY- and TEXTILE WORKERS UNION OF AMERICA, CIO Case No. 10-C-2066.-Decided June 29, 1949 DECISION AND ORDER On March 31, 1949, Trial Examiner Herman Marx issued his Inter-- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and' take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondent filed ex- ceptions to the Intermediate Report. The Respondent also requested oral argument. This request is hereby denied because the record and exceptions, in our opinion, adequately present the issues and the- positions of the parties. The Board 1 has reviewed the Trial Examiner's rulings made at the- hearing and finds that no prejudicial error was committed .2 The rul- ings are hereby affirmed.3 The Board has considered the Intermediate- 1 Pursuant to the provisions of Section 3 (b) of the Act , as amended , the Board has dele- gated its powers in connection with this proceeding to a three -member panel , Chairman- Herzog and Members Houston and Murdock]. 2 At the hearing, the General Counsel presented testimony through employees Hope, Robinson , Pruitt, Dawkins, and Burris to the effect that certain supervisors remarked that the Respondent would not sign a union contract or that it would take a long time doing so. These remarks were alleged to have been made to the employees while the supervisors were attempting to persuade them to return to work in the course of a strike- at the Respondent's plant The supervisors denied that they had made any statements relative to the Respondent's position on union contract matters . Tire Trial Examiner did not resolve the conflicting testimony but, in his Intermediate Report, struck the testimony of the General Counsel's witnesses relating to the remarks of the supervisors as to the Respondent's contract policy, on the ground that the statements "appear to• be no more than opinions by the respective supervisors " In view of our finding herein, without reference to the alleged statements of the supervisors , that the Respondent violated Section 8 ( a) (5) of the Act, we find it unnecessary to pass upon the question presented by the Trial Examiner's ruling, r. e., whether the supervisor 's statements, if- made, were, in their context , attributable to the Respondent. i On motion of the Respondent , the Trial Examiner dismissed paragraph IX of the complaint, alleging independent violations of Section 8 (a) (1) of the Act on the ground that no charge with respect to the aforesaid allegations of the complaint had been filet and served upon the Respondent in accoidance with Section 1(1 (b) of the amended Act.. No exceptions having been hied thereto , we hereby affirm the Trial Examiner 's ruling. 84 N. L. R. B., No. 86. 744 HIGHLAND PARK MANUFACTURING COMPANY 745 Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations, of the Trial Examiner except as they are inconsistent herewith. 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing on June 28, 1946, and on various occasions thereafter, to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit." The Respondent excepts to this finding on the ground that the Regional Director's determination, under the con- sent election agreement, that the Union is the exclusive representa- tive of the Respondent's employees in the appropriate unit "was a purely arbitrary declaration." Specifically, the Respondent contends that the Board's field examiner, in the course of conducting an in- vestigation of the challenged ballots, misled the Respondent into be- lieving that it would later be given an opportunity to present evidence to the Board or to a Trial Examiner of the Board as to the employ- ment status of the seven employees whose voting eligibility was chal- lenged by the Union. Contrary to the contention of the Respondent, we find for the reasons stated in the Intermediate Report, that the Respondent was actually afforded an adequate opportunity to present its position and evidence as to the employment status of the seven employees involved herein, that it did, in fact, avail itself of this opportunity with full knowledge of the purpose of the investigation, and that it was not misled as to its rights in a consent election pro- ceeding of this character. As we recently had occasion to note in connection with post-election proceedings under the terms of an identical consent election agree- ment : the objective of providing for the procedure of a consent election of the type which does not require a Board certification is to enable the parties, if they so choose, with the approval of the Regional Director, to ascertain the uninhibited desires for repre- sentation of the employees in an appropriate unit without re- course to the Board at any stage of the proceeding . . . In keep- ing with this view, we have held that we will disturb the Regional Footnote 3-Continued We reject the. Respondent 's exception to the Trial Examiner's ruling denying its motion to dismiss the complaint made on the ground that the Congress of Industrial Organizations, with which the Union is affiliated, has not complied with the filing requirements of Section 9 ( f), (g), and ( h) of the amended Act. See Matter of Northern Vtirginus L'h oadcasters. Inc.. 75 N. L R. B 11. 4 In substantial agreement with the Trial Examiner , we find that all production and maintenance employees at the Rock Hill, North Carolina, plant of the Respondent, exclud- ing clerical employees , superintendents , overseers , second hands , and all supervisors as defined in the amended Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, as amended 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director's determination only when pertinent to the issues pre- sented in an unfair labor practice proceeding, and then on the sole ground that the Regional Director's rulings were arbitrary or capricious.' Upon consideration of the entire record, we find, therefore, like the Trial Examiner, that the Regional Director, in upholding the Union's challenges to the voting eligibility of the seven employees in question on the basis of the evidence produced in the course of the field ex- aminer's investigation, and in determining that the Union is the exclusive representative of the Respondent's employees in the appro- priate unit, was not acting in an arbitrary or capricious manner. 2. The Respondent further excepts to the Trial Examiner' s finding that it unlawfully refused to bargain with the Union on the grounds that (a) the Board is chargeable with lathes in that, although the charge in the instant proceeding was filed on September 13, 1946, the complaint was not issued by the General Counsel until January 10. 1949; and (b) even assuming that the Union was at one time the majority representative, approximately 2 years have already elapsed since such showing of majority status. We do not agree. It is well established that the doctrine of lathes will not lie against the Board.6 Moreover, as between an offending party and the victims of his unfair labor practices, the consequences of administrative delay should be borne by the former.' As to the Respondent's contention that it should not now be required to bargain with the Union , assuming, arguendo, that a loss of majority has occurred since the Regional Director's determination that the Union is the lawful bargaining agent, we attribute such loss to the Respondent's unlawful refusal to bargain with the Union. To refuse to require the Respondent to bargain collectively because the Union lost its majority, "would not only leave the Respondent's unlawful conduct unremedied, but would also obviously discourage collective bargaining ... in the hope and expectation that a union's majority will be dissipated by delay and litigation." 8 For the foregoing reasons, we find no merit in the Re- spondent's exceptions. 3. Like the Trial Examiner, we find that, apart from its designation in the consent election as bargaining representative, the Union demon- strated its majority position thereafter by cards and by a petition, 5 Matter of McMullen Leavens Company, 83 N. L R B , 948, and cases cited therein. IN. L. R B. v. Wilson Line, Inc, 122 F ( 2d) 809 (C A 3) , Matter of Quarles Manu- facturing Company, 83 N. L. R. B. 697 IN. L R. B. v. Electric Vacuum Cleaner Co , 315 U S 685 , 697-698 ; Matter of Agar Packing & Provision Corporation, 82 N L R B 1262 8 Matter of Lancaster Foundry Corporation, 82 N L R B 1255 , and cases cited therein HIGHLAND PARK MANUFACTURING COMPANY 747 but the Respondent still refused to bargain. We attach no significance on this score to the Respondent's contention that it had no means of knowing but had reason to doubt whether the signatures on the union cards and petition were authentic and representative of the uncoerced choice of a majority of its employees. Rather do we find, in the union cards 9 and petition, as did the Trial Examiner, additional evidence of the Union's continued representative status as the bargaining agent of the Respondent's. employees involved herein. Moreover, it is clear, and we find, in agreement with the Trial Examiner, that the Re- spondent was seeking to avoid bargaining by questioning the authen- ticity of the cards and petition. Accordingly, because it is admitted that the Respondent refused to bargain with the Union and because the defenses and reasons offered by the Respondent for such refusal are, under all the circumstances and upon a consideration of the entire record, lacking in merit, we find that the Respondent has violated the Act. More particularly, we find that on'June 28, 1946, and at all times thereafter,.the Respondent re- fused to bargain collectively with the Union as the exclusive repre- sentative of its employees in the unit hereiiiabove found to be appropri- ate, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in viola- tion of Section 8 (a) (5) and (1) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Highland Park Manufacturing Company, Rock Hill, North Carolina, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all production and maintenance employees, at the Respondent's Rock Hill, North Caro- lina, plant, excluding clerical employees, superintendents, overseers, second hands, and all supervisors as defined in the amended Act; O U The Respondent excepts to the failure of the Trial Examiner to find that James E. Kelly "did not sign a Union card in the presence of a witness in whose presence the card purports to show he did sign " While the record shows that Kelly denied having signed the card in the presence of the witness Morgan, Kelly testified further that he did in fact sign the union card, although in the presence of another witness In the absence of any evidence in the record that Kelly's signature was obtained through fraud or coercion, we believe the mistake in the identity of the witness to Kelly's signature, if made, to have no effect on the validity of Kelly's union card In any event, the authorization of the Union as the bargaining agent herein was amply demonstrated without the inclusion of Kelly's card. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Interfering in any other manner with the efforts of Textile Workers Union of America, CIO, to bargain collectively on behalf of employees in the aforesaid bargaining unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Union of America, CIO, as the exclusive bargaining representative of all production and maintenance employees at the Respondent's Rock Hill, North Carolina, plant, excluding clerical employees, superintendents, overseers, second hands, and all supervisors as defined in the amended Act, with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; (b) Post at its plant in Rock Hill, North Carolina, copies of the notice attached hereto, marked "Appendix A." 10 Copies of such notice,'to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent or its representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of at least sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region in writing, 'within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL BARGAIN collectively upon request with TExTILE WORK- ERS UNION OF AMERICA, CIO, as the exclusive representative of all employees in the bargaining unit described herein, with respect to wages, rates of pay, hours of employment, or other terms or con- ditions of employment, and if an understanding is reached, em- body such understanding in a sib ied agreement. The bargaining unit is: 10 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING " HIGHLAND PARK MANUFACTURING. COMPANY, - 749 All production and maintenance employees at the Rock Hill, 'North Carolina, plant, exclusive of clerical employees, superin- tendents, overseers, second hands, and all supervisors as defined in the amended Act. WE WILL NOT in any manner interfere with the efforts of TEXTILE WORKERS UNION OF AMERICA, CIO, to bargain collectively with us as the'exclusive representative of the employees in the appropriate unit described above. HIGHLAND PARK MANUFACTURING COMPANY, - _ • , . - , Employer. By --------------------------------------------- (Representative ) (Title) Dated ------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Messrs. William J. Raines and James W. Mackle, for the General Counsel. Mr. Whiteford S. Blakeney, of Charlotte, N. C., for the Respondent. STATEMENT OF THE CASE On September 13, 1946, Textile Workers Union of America, CIO,' filed a, charge with the Regional Director for the Tenth Region of the National Labor Rela- tions Board.' On January 10, 1949, the General Counsel' of the Board issued a complaint alleging , in substance, that the Respondent , Highland Park Manu- facturing Company, had engaged, and was engaging, in unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1), 8 ( a) (5), 2 (6) and 2 (7) of the National Labor Relations Act (49 Stat. 449-457, as amended by 61 Stat. 136-163), herein referred to as the Act. In its significant aspects, the complaint4 alleges that, in accordance with the results of a consent election held on May 1, 1946, the Regional Director certified the Union on May 29, 1946, as the representative of the employees in an appropriate unit at the Respondent's plant in Rock Hill, South Carolina; that on June 25, 1946, "and at all times thereafter," the Union requested the Respondent to bargain collectively with it concerning the wages and other con- ditions of employment of the said employees ; that on June 28, 1946, "and at all times thereafter," the Respondent refused to bargain collectively with the Union in violation of Sections 8 (a) (1) and (5) of the Act; and that "from on or about March 13, 1946, and continuously thereafter," the Respondent committed 1 Textile Workers Union of America , CIO, will be referred to herein as the Union. 2 The National Labor Relations Board will be referred to herein as the Board 3 References to the General Counsel herein include the attorneys who appeared for him at the hearing. 4 The complaint also contains the customary allegations of jurisdiction which is not in issue here 853396-50-vol 84-51 750 DECISIONS OF NATIONAL LABOR "RELATIONS BOARD certain specified acts of interference with, and restraint and coercion of, the rights guaranteed to its said employees by Section 7 of the Act, thus violating Section 8 (a) (1). Copies of the charge and complaint were duly served upon the Respondent. The Respondent filed an answer on February 1, 1949, in which it admits the jurisdictional averments of the complaint, the holding of the election, the cer- tification of the Union, and the request by it on June 25, 1946, for collective bargaining, but denies the other allegations bearing on the alleged unfair labor practices, and that it has committed such practices Pursuant to notice duly served upon the Respondent and the Union, a hearing was held at Rock Hill, South Carolina, on February 15, 16, and 17, 1949, before the undersigned, Herman Marx, duly designated as Trial Examiner by the Chief Trial Examiner. At the hearing, the Respondent moved to dismiss Paragraph IX of the com- plaint on the ground that it is not supported by the charge and that the unlawful conduct alleged in the paragraph occurred more than 6 months prior to the filing and service of any charge with respect thereto, as required by Section 10 (b) of the Act. Paragraph IX alleges certain specified acts of the Respondent constituting interference with, and restraint and coercion of, the employees in the exercise of their statutory guarantees, in violation of Section 8 (a) (1). The charge, in essence, alleges that the Respondent engaged in unfair labor practices "within the meaning of Section 8, subsections (1) and (5) of said Act, in that" the Respondent refused to bargain after the election and certification (emphasis supplied). It will be observed that the violation of Section 8 (a) (1) alleged derives solely from a refusal to bargain and contains no reference to any other conduct as a violation of Section 8 (a) (1). In response to an inquiry from the Examiner, the General Counsel agreed that Paragraph IX was designed to allege "independent violations of Section 8 (a) (1)s6 and that such violations "arer not''intehd'ed to support the allegation charging the Respondent with re- fusal 'to bargain," except that they might be relevant to a consideration of "the color e of the alleged violation" of Section 8 (a) (5). The Examiner granted the motion 7 to dismiss Paragraph IX upon the theory that no charge, with respect to the allegations of Paragraph IX, had been filed and that it had not been filed 5 Although Paragraph IX avers that the Respondent committed the acts therein specified "from on or' about March 13, 1946, and continuously thereafter," it was assumed sub sclentso from the context of the argument that the alleged conduct occurred In 1946 or, in any event, that if the charge filed was insufficient to sustain Paragraph IX any new or amended charge covering the acts set forth in the paragraph could not be filed and served within six months after the commission of the specific acts. For that reason, the Trial Examiner for the purposes of the motion, attaches no significance to the phrase "and con- tinuously thereafter." 6 The Respondent does not deny its refusal to bargain , basing its defense upon the im- propriety of the certification and the absence of proof of representation. If the contention is incorrect and the refusal to bargain, therefore, offends Section 8 (a) (5), the background and "color" of'the refusal are not particularly germane. 7 Prior to the hearing the Respondent filed a motion to dismiss the entire complaint upon several grounds, including the one directed to Paragraph IX at the hearing. The motion was duly referred to the undersigned, who entered an order dated February 8, 1949, denying the motion. The Examiner could not tell at that time whether Paragraph IX was designed to allege conduct which might "be relevant to the charge" of refusal to bargain. Moreover, as the motion was directed to the complaint as a whole, the Examiner concluded that the motion should be denied because the complaint contained other allegations such as the refusal to bargain, which stated a cause of action and therefore , required a denial of the motion. HIGHLAND PARK MANUFACTURING COMPANY 751 and served in conformity with Section 10 (b) of the Act .8 The Respondent also moved to dismiss the complaint upon the ground that the Congress of Industrial Organizations ( not the Union ), of which the Union is an affiliate, had not com- plied with the filing requirements of Section 9 (f), (g), and ( h) of the Act. That motion was denied. The General Counsel, relying upon Section 203.20 of the Board's Rules and Regulations, moved that the Respondent be required to set forth in its answer, in addition to the several denials, "a short and simple statement of the facts which constitute its defense." The motion was denied . A motion by the Gen- eral Counsel to conform the pleadings to the proof with respect to such minor matter as names , spelling and dates was granted. . The General Counsel and the Respondent were represented by counsel a at the hearing, participated therein, and were afforded a full opportunity to be heard, examine and cross-examine witnesses , adduce evidence bearing on the issues, submit oral argument and file briefs . The General Counsel and Respondent waived oral argument. Neither party has filed a brief. Upon the entire record and from his observation of the witnesses , the Trial Examiner makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Highland Park Manufacturing Company is a North Carolina corporation, with its principal office at Charlotte, North Carolina. It operates a plant at Rock Hill, South Carolina, where it is engaged in the manufacture and sale of broad- cloth, skirtings and knitted yarn. During the year 1946," the Respondent pur- chased raw materials valued in excess of $100,000, approximately 90 percent of which was purchased outside the State of South Carolina and shipped in interstate commerce to the said plant at Rock Hill. During the same period, the Respondent manufactured and sold textile products at a valuation in excess of $100,000, approximately 90 percent of which was shipped in interstate commerce from the Respondent's Rock Hill plant to points in other States. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, CIO, is a labor organization which admits to its membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background of undisputed facts On April 10, 1946, the Respondent and the Union signed an agreement for an election by the Respondent's employees at the Rock Hill plant in order to determine 8 The phrasing of the charge is somewhat unusual because of its peculiarly restricted nature. The Examiner regards such cases as Consumers Power Co. v . N. L. R. B., 113 F. (2d) 38 ( C. .A 6) and Matter of Vanette Hosiery Mills, 23 L. R. R. M. 1198 as inapplicable. The Consumers Power case charged the claimed unlawful conduct in "the general language of the statute ," and in Vanette, the allegation was that the interference , restraint, and coercion consisted of a refusal to bargain and "other acts and conduct" ( emphasis sup- plied ). Cf Matter of Electric Auto Lite Co., 80 N. L It. B . 1601, 23 L . R. R M 1268, where the Trial Examiner who heard that case reached a conclusion similar to that of the under- signed, but the Board found it unnecessary to pass on the question. Counsel for the Union also appeared during a portion of the hearing , but he was excused, at his request, because he had another engagement. "The Respondent' s answer, which admits the jurisdictional averments of the complaint, also admits that, with respect to such allegations , the year 1946 is "representative of all times material herein " 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether the employees wished to designate the.Union as their exclusive bargaining representative. The agreed unit consisted of all production and maintenance employees, but excluded clerical and supervisory personnel . The agreement, among other things, , provides : "Said election shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations , and the customary procedures and policies of the Board ; provided that the determination of the Regional Director shall be final and binding upon any question , including questions as to the eligibility of voters , raised by any party hereto relating in any manner to, the election." The agreement also provides that "the eligible voters shall be those employees included within the unit who appear on the payroll" on April 12, 1946 . Among other things, Article 7 of the instrument states that "if challenges are determinative of the results of the election, the Regional Director shall .investigate the challenges and issue a report thereon." The election was held on May 1, 1946. A total of 402 ballots were cast. Of these, 197 voted in favor of the Union , and 194 against its designation Eleven ballots were challenged . Among these were seven female employees who had previously been employed as "draw-in " hands at the Respondent's Charlotte plant. They were challenged by the Union on the ' asserted ground that they were "on loan" from the Charlotte plant and were, therefore , "not regular employees of" the Rock Hill mill. On or about May 2, 1946, the Regional Director , through Arthur Joy, a Field Examiner on his staff , commenced an investigation of the question of the eligibility of the challenged ballots. On May 8, 1946, the Respondent's attorney wrote, on its behalf, to the Regional Director, requesting "that a formal hearing be held before a Trial Examiner" for the submission of evidence with respect to the seven "draw-in" hands, in the event that the Regional Director should reach the conclusion that the challenge to their eligibility should be sustained. On May 29, 1946, the Regional Director issued his "Consolidated Report On Challenged Ballots and Objections and Consent Determination of Representa- tives." The Report reviews the determinations made by the Field Examiner who conducted the election , analyzes factual data revealed by the investigation, and considers contentions advanced both by the Respondent and the Union. It con- cludes that one challenged voter was eligible ( contrary to the Field Examiner's determination ) ; that two ballots were void; and that eight other voters, includ- ing the "draw-in" hands, were ineligible. With respect to the "draw-in" em- ployees, after reviewing evidence pertaining to their employment status at the Rock Hill plant, the Report states that "although the length of the present period of employment ( at Rock Hill ) is problematical , all factors indicate that it is of temporary nature only" and that "because of this and other factors" discussed in the Report , the seven hands were not eligible to vote. The Report also points out that the mere fact that the seven employees were on the April 12 pay roll was not decisive, since the agreement also provides for an election "in accordance with the Board's customary practices and procedures ," and it has "frequently held" that temporary employees are not eligible to vote ( citing Matter of Sierra- Paci/lo Power Co., 56 N. L. R. B. 458 and Matter of Rock Island Produce Co., 48 N. L. R. B. 930). - As the one ballot found to be eligible for the tally would be insufficient to affect the results of the election,, the Regional Director held that he would not direct that the ballot be opened. Similarly, the other challenged ballots have not been opened, in view of the Regional Director 's determination that two of them were void and the rest ineligible for the tally. HIGHLAND PARK MANUFACTURING ". COMPANY' - 753 In the Report, the Regional Director refers to the Respondent's request "that a hearing be 'held before a Trial Examiner" in the event of a conclusion the employees involved were not eligible . The Report construes the request as one, "in effect," to "set aside" the provision in the agreement that the determination of the Regional Diiector "be final and binding " The Report denies the request, asserting that "no valid, reason appears to have been presented" to warrant concurrence in it. The Report concludes that a majority of the valid votes were cast for the Union, and certifies the Union as the exclusive bargaining representative of the employees in the Union On or about June 5, 1946, the Respondent filed with the Board a document entitled "Exceptions to Consolidated Report of Regional Director ." Among other things , the Exceptions challenge the findings in the Report as "ex parte " and "not a bona fide exercise of discretion ." The Exceptions admit that the "Board's Field Examiner did ask certain questions of the Company which representatives of the Company answered," but assert that the Respondent "did not understand that it then had an opportunity . . . to present the facts and circum- stances ..." and that it did not have such an "opportunity ." The Exceptions request the Board to reverse the Regional Director's rulings with respect to the two void ballots and-the eligibility of the seven "draw-in" employees, or, in the alternative , that an opportunity- be given to.the Respondent to present evidence "at a formal hearing" on the questions involved. On June 28 , 1946, the Board, through -a member of its staff , wrote to the Re- spondent 's counsel , acknowledging receipt of the Exceptions , pointing out the finality of the Regional Director's determination under the agreement and the Rules and Regulations , and denying the request for a reversal of the Regional Director's rulings and "for an opportunity to present your argument at a formal hearing " On June 25 , 1946, the Union mailed to the Respondent a proposed "collective bargaining contract to cover the rates of pay , wages, hours of employment, and working conditions of the employees," and, in the accompanying letter, requested that a date for a bargaining meeting be set The Respondent answered in a letter dated June 28, 1946 , that "in view of the Exceptions" it was the concern's "understanding that the matter is not now at a point where it is necessary for us either to accede or refuse to accede " to the request for collective bargaining. On July 3, 1946, the Union wrote to the Respondent again, pointing to the Board's action on the Exceptions , and requesting a bargaining conference. The Company responded by letter on July 5, stating that its counsel had written to the Board and that what it was "trying to do" was to secure "a hearing" and an "opportunity to present evidence and facts " bearing upon the matters "ruled on" by the Regional Director. Thereafter , on various occasions , both orally" and by correspondence," the Union requested the Company to bargain , but the Respondent , in effect, refused to do so , assigning as its reason , in substance, the contention that it was "entitled to a hearing " ri See testimony of J. H Fullerton, a representative of the Union is Additional letters requesting bargaining negotiations were sent to the Respondent on July 16 , August 28 , and September 23, 1946. The Company responded to the letters of July 16 and August 28, iespectively , with its letters of July 22 and September 3, 1946 There was no response to the letter of September 23 - 754 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD It'is undisputed, and the Examiner so finds, that the Respondent has refused to bargain with the Union 13 The issue is whether it was legally justified in its refusal. B. The conclusive effect to be given to the Regional Director's determination At the hearing, the Examiner sustained an objection to proof offered by the Respondent with respect to the voting eligibility of the seven "draw-in" em- ployees. The Respondent was permitted to make a detailed offer of what it pro- posed to prove." , The basis for the exclusion of the offered testimony was that, by the terms of the agreement and the Board's Rules and Regulations,1 the Regional Director's determination was "final and binding upon any question, including questions as to the eligibility of any voters ." [Emphasis supplied.] It was the Trial Examiner 's conclusion that the proffered evidence was simply an effort to go behind the finality of the Regional Director 's ruling and to litigate a question which both the Union and the Respondent had expressly committed to the Regional Director's determination. It is well settled that , in the absence of proof that a Regional Director's determination of voting eligibility in a consent election is arbitrary or capricious, his decision on the matter is conclusive and may not be collaterally attacked 1' The rule and its underlying reason were summarized in N. L. R. B. v. Capitol Greyhound Lines, 140 F. (2d) 754 ( C. A. 6) as follows : 13 Testimony was presented by the General Counsel through Witnesses Hope, Robinson, Pruitt, Dawkins and Burris that during the course of a strike at the plant (commencing on September 16, 1946) certain supervisory employees variously made remarks to the general effect that the Company would not sign a union contract or that it would take a long time doing so. The statements made to Hope, Robinson and Pruitt were asserted to have been made while the respective supervisors were attempting to persuade them to return to work The remark to Burris was allegedly made while a supervisor was seeking to induce Burris' children to return and consisted of a statement that the Company's president had told the supervisor that "he would never sign a contract " The Examiner entertained considerable reservation about the competency of the testimony, but admitted it provisionally until he could determine whether the General Counsel would, before the close of the hearing, lay a sufficient foundation for its admission by proof of the functions and authority of the supervisors. Evidence to that end was presented, but in the judg- ment of the undersigned was insufficient. The Examiner intimated that he would probably strike the testimony in his Intermediate Report. The supervisors' alleged statements, with respect to the Company's contract policy, as quoted by Hope, Robinson, Pruitt and Dawkins, appear to be no more than opinions by the respective supervisors . Burris' testi- mony is inadmissible hearsay. Accordingly, the Trial Examiner strikes that portion of the testimony of the named witnesses relating to statements made by supervisors concern- ing the Respondent's contract policy. The rest of the witnesses' testimony may stand. 14 In view of the Trial Examiner's ruling that the proffered testimony was an inad- missible effort to go behind the finality of the Regional Director's determination, it was agreed at the hearing that the Respondent would not call each of the witnesses it had available with respect to the eligibility of the seven employees, but that, to conserve time, an objection would be made by the General Counsel to the proffered line of testimony, and a ruling made thereon by the Trial Examiner, and that the Respondent would be per- mitted to make an offer of proof of what such witnessess would have testified to if permitted to do so. The sole purpose of the offer was to frame the issue for the applicable ruling of the Trial Examiner. As it was unnecessary to the statement of the issue and the ruling involved, the Trial Examiner's exclusion of the evidence does not take into account other possible objections to portions of the offer of proof 15 See Article III, Section 12, Rules and Regulations, Series 3, in effect at the time of the election. 13 N.' L R. B. v. Capitol Greyhound Lines, 140 F. (2d) 754 (C. A. 6), certiorari denied, 322 U. S. 763, Semi-Steel Casting Co. v. N L. R. B , 160 F. (2d) 388 (C. A. 8) ; Matter of Poster Cotton Mills, Inc, 80 N L R B 1187, 23 L R R. M. 1197; Matter of Miehle Printing Press and Manufacturing Co., 58 N. L. R. B. 1134. HIGHLAND PARK MANUFACTURING COMPANY 755 ... we find that the Regional Director's ruling was neither arbitrary nor capricious. In the absence of such, conduct, we feel ourselves bound by the terms of the agreement providing for the finality and binding affect of the Regional Director's determination to the, same extent as a court is bound by an agreement to abide by an arbitrator's award. To hold otherwise would permit an employer deliberately to ignore binding commitments embodied in a consent agreement ; would open the door to subterfuges for hampering and delaying a final determination of a bargaining representative ; and would tend to defeat, rather than effectuate, the policies of the Act. As in a challenge to an arbitrator's awardu (or, for that matter, as in any case where a party has the affirmative of an issue), the burden of showing that the Regional Director acted arbitrarily or capriciously is upon the Respondent. Proof of erroneous judgment or misinterpretation of the facts is not enough 3° The foundation for an escape from the finality of the decision must, in fact, establish arbitrariness or caprice. The Respondent failed to establish that the Regional Director acted arbitrarily or capriciously. The record shows that he caused an investigation to be made of the facts relating to the challenged ballots and issued a report thereon. This was done in conformity with Article 7 of the agreement. In the course of the investigation, Arthur Joy, the Field Examiner who made it, met at the plant with representatives of the Respondent and the Union on the day following the election. The meeting was arranged by the Field Examiner. The Respondent was represented by the concern's general superintendent (from its Charlotte office), the general manager of the Rock Hill plant, T. W. Church, and its attorney. The Respondent understood that "the purpose of the meeting was for him (Joy) to get some information in regard to (the) challenged ballots" (Church's testi- mony). Church affirmed under cross-examination that the Field Examiner "asked a great many questions." He also testified that Joy "asked to see the pay rolls, and where (the) girls lived, and questions of a similar nature. Under cross-examination, Church manifested considerable vagueness as to the informa- tion he gave Joy, stating in several instances that he "probably" furnished cer- tain data or that there was a "possibility" that he did, and in others claiming a faulty recollection. From his demeanor and answers, the Trial Examiner has concluded that Church manifested an absence of frankness with respect to his account of the information furnished to Joy. However, it is plain that even on the,basis of Church's testimony, the Respondent made a statement of its position on the question involved ; that Joy examined the relevant pay-roll records ; that he inquired into the history of the employment of the seven girls in both the Charlotte and Rock Hill plants and of their record of transfers between the two mills ; and that he secured other relevant information from the Company; Church also agreed that there was a "possibility" that he discussed with Joy the "applicability of group insurance" prevailing at the Rock Hill plant to the' girls on the occasion of previous transfers and that he "probably" displayed the Social Security records to Joy and discussed with him the difference in wage rates be- tween both plants and how they were applied to the seven hands. Church asserted that he "think(s)" he discussed with Joy differences, with respect to the manner and time of payment and pay-roll periods, between the seven girls 113 Amer Juris 991 (Arbitration and Award). 18An arbitration award (cf. the Capitol Greyhound case) will not be set aside unless it is clearly made to appear that the arbitrators "misconceived their duties, acted upon some fundamental or apparent mistake, or have been moved by fraud or bias " 3 Amer. Juris. 961 (Arbitration and Awaid) 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other employees at the Rock 'Hill plant. Significantly , leaving aside the inferences drawn from it, much of the information secured by Joy from the Respondent is reflected in the Regional Director 's Report and in the offer of proof made by the Respondent 's counsel"B Church gave some testimony on direct examination that the firm 's representa- tives "left ( the meeting ) with the understanding that we would be allowed to present evidence and facts to the Labor Board in regard to ( the seven "draw-in" girls ) and that when it-was decided that the votes would be opened , that they would be opened in Atlanta in front of a representative of the CIO and a repre- sentative of the Company." He also affirmed that he requested of Joy "an oppor- tunity to present the facts and evidence." However, it does not clearly appear from his testimony at this point what "opportunity " the witness had in mind, whether on that occasion or some other . The next question put to him by counsel whether he understood he "was then and there being given such oppor- tunity" brought the vague response, "Well, I understood we would be given opportunity." At that point, the undersigned indicated to counsel that Church 's "understand- ing" might "very well be a conclusion ." Thereupon , Church was asked to state "what was said in regard to your request to have opportunity to present the facts and evidence in regard to the eligibility of the seven people," and the witness gave the following testimony : A. Well, I can't remember the exact words, but I asked that we be given the opportunity to present the complete facts and the complete picture to either the Board or whoever was necessary . I can't remember Mr. Joy's words, but I think he said the we would be given that opportunity. Q. (By Mr. Blakeney.) Now, irrespective of what you think, will you state what was the substance of what he communicated to you, you would or wouldn't have an opportunity. A. Well, he said we would have, or words to that effect. Church then denied that the "Company ever has been given an opportunity to give facts and evidence " with respect to the employment status of the seven girls. The implication of the denial and the quoted testimony is that the Respondent was misled into not giving the facts in "detail ." However, the testimony is manifestly vague and conclusionary. The Trial Examiner observed from both the witness' demeanor and the context of his evidence that he was hesitant and uncertain , even in response to repeated questions of a leading nature. The best construction which can be placed upon Church 's testimony is that he "think ( s)" Joy said a future opportunity would be furnished to the Respondent to submit "facts and evidence." His denial that "the Company ever has been given ( such) an opportunity" is manifestly contrary to the facts , for he admitted that Joy "asked a great many questions " ; that "we gave him everything he asked for" ; that he understood that "the purpose of the meeting was for (Joy) to get some information in regard to these challenged ballots"; and that the Respondent made a statement of its claim with respect to the eligibility of the seven hands. It is also evident that Company furnished considerable pertinent data to Joy. Between the meeting on May 2 and the certification on May 29, the Respondent failed to send or submit any facts to the Regional Director ( see Church's testi- 3° The Regional Director in his Report discusses in some detail the employment records of the employees involved , the employment practices of the Respondent , and its contentions, and it is a reasonable inference that his discussion and findings are based , at least in part , on the information secured by Joy from the Respondent. HIGHLAND PARK MANUFACTURING COMPANY 757 mony ), and there is no evidence that it has ever taken the initiative to submit any facts bearing on the eligibility of the challenged employees , except to insist on "a formal hearing" before a Trial Examiner which would, in effect, be a review of the Regional Director's determination . Significantly, its attorney attended the meeting with Joy, and the Respondent was armed with whatever implementation it needed ( including its books ) to make whatever disclosure of information it desired. On the basis of the evidence, the Trial Examiner finds that the Respondent knew the purpose of the investigation, had an opportunity to explain its position and place any facts in its possession at the disposal of the Regional Director, and did, in fact, in response to Joy's "many questions" give him considerable information bearing on the eligibility of the challenged voters, although Church manifested a faulty recollection and was somewhat vague concerning the data Joy secured. There is no credible evidence that the Respondent was in any way misled and the Trial Examiner finds that it was not misled. . The Respondent's conclusionary implication that it was "misled" also over- looks an important feature of its agreement. Article 7 of the instrument re- quires the regional Director to make an investigation of challenged ballots. There is nothing in the agreement which requires him to interview one person rather than another or to secure his information from any specified source. The scope and conduct of the investigation are committed to the discretion of the Regional Director by the plain terms of the Respondent's own agreement 2° Quite aside from the fact that Joy did interview officials of both the Respondent and the Union and received information from the Company in response to "a great many questions," the Respondent's emphasis on its claim to "present facts and evidence" contains the fallacy that its agreement gives it any right to do so or to place any measure on the nature and scope of the Regional Director's investigation The agreement and the Board's Rules and Regulations vest in the Regional Director a broad discretion over the scope and conduct of his investigation. An intelligent exercise of such discretion must leave it free to adjust itself to the varying needs of diverse situations. To read into agree- ments for consent elections any preconditions for the scope and conduct of the Regional Director's inquiry would have a debilitating effect on the force of com- mitments voluntarily made and would hamper the speedy solution of represen- tation questions which such agreements are designed to achieve (cf. N. L. R. B. v. A. J. Tower Co., 329 U S. 324). Certainly, in the absence of a plain showing of administrative abuse, neither party to such an agreement should be permit- ted to atttach a posteriori conditions either to its obligation or to the inquiry it has freely placed in the hands of another. The record is barren of such a showing. Measured against the conclusionary "impression" to which Church testified, is the undisputed evidence of an investi- gation which included the receipt of factual data from the Respondent's top management personnel, given in the presence of its attorney, as well as a state- ment of its position with respect to the challenged ballots. Moreover, the Regional Director's Report shows on its face that his investigation covered, and that he gave consideration to, many, if not all, of the purported facts the Respondent contends that it could establish through its proffered evidence. There is no proof that the investigation did not include all the basic and relevant 20 Conceivably, there may be many situations where a proper and objective investigation would require that a Regional Director give primary emphasis to information secured from sources other than that of a union or an employer, for the plain reason that they are interested parties 758 DECISIONS OF. NATIONAL LABOR 'RELATIONS BOARD facts (no obligation -is imposed upon the Regional Director to spell out all the evidence, minute or otherwise, in his Report), or that other persons, including the seven "draw-in", girls, were.not interviewed. At most, the Respondent's offer of proof raises a conjecture that the investigation did not reach some of the purported facts (consisting, in part, of evidentiary minutiae) included in the offer or that the Regional Director erred in his construction of such alleged facts. All this falls far short of the burden which the law places upon the Respondent of establishing that the Regional Director arbitrarily or capriciously refused to give effect to any knowledge he had of the controlling facts in the case 21 or that he otherwise acted arbitrarily or with caprice. In the light of the foregoing, as well as upon the authority of well settled princlple,22 the Respondent's request for a "formal hearing," whether before a Trial Examiner or any one else, with respect to the eligibility of the challenged ballots, amounts to no more than a requirement that an appellate review be made of the Regional Director's findings The Respondent's agreement and the Board's Rules and Regulations, to which the undertaking was expressly made subject, preclude such a procedure. C. Evidence, in addition to the election, that the Union represented the unit. The General Counsel produced evidence that the right of tlie,Union to repre- sent the unit does not rest alone on the certification. James Fullerton, a representative of the Union, spoke to Church in the summer of 1946, after the Respondent had advised the Union of its position on the certification, "again requesting recognition" and offering "to submit to a card check on our applications-cross-check with the payroll." According to Fuller- ton, Church refused the offer,22 and the Union thereupon undertook to "get the workers to sign up again" in order "to convince the Company" that "the workers . . . wanted a union " The signatures were secured, principally in the months of July and August. The employees signed a card 24 bearing a dif- ferent color from the ones previously used, "so there couldn't be any confusion" (Fullerton's testimony). The cards purport to state the membership of the sig- natory in the Union, the date upon which lie signed, and that he designates the Union as his bargaining agent. The record contains a list of 256 26 employees who signed the cards and the respective dates on which they signed. The bargaining unit during the period covered by the dates appearing in the list consisted of 430 persons, and there is no dispute that the 256 employees were members of the unit. On or about September 10, 1946, according to Fullerton, he spoke to Church, again suggesting a cross-check and offering to have it made "by an impartial person," such as "some Conciliation person or an arbitrator" or a certified public 21 N. L R B. v. A . J. Tower Go , 329 U S 324 22 Matter of Aetna Fire Brick Company , 56 N. L. R. B 849 , 14 L. R R. M. 159 ; Matter of Sidran Sportswear, 23 L R R M . 1324 ; Matter o f Ferriss-Lee Lumber and Mfg. Go, 71 N. L. -R. B 989, 19 L. It . It. M. 1078 ; cf Matter of A. J. Tower Co , 60 N. L. It. Bt 1410, 16 L. R It. M. 67 ( see, also, N. L R. B. v A J Tower Go, 329 U S. 324 , reversing 152 P. (2d) 275 ( C. A 1) in which the Court of Appeals had denied enforcement of the Board's order). 25 Fullerton 's testimony does not specify the date of the conversation , but from the con- text of the testimony it appears to have occurred in June There is no evidence to con- trovert Fullerton 's version of the conversation The Examiner finds that it occurred as related by Fullerton. 24 See G. C. 19 for a sample card. 11 The list contains more than 256 names because some of them are duplicated. HIGHLAND PARK MANUFACTURING' COMPANY " 759 accountant, but Church declined, stating that the Respondent'had "a continuous appeal." Fullerton testified that he asked Church what that meant, but that the latter stated be did not know and that it was the advice of the Company's attor- ney. Then; according to Fullerton, he spoke to the Respondent's counsel "and made the same proposition" to him and received the same response about "a con- tinuous appeal," and that "no matter what happened, it was in a continued appeal ; anything that came up in regard to this case." Fullerton testified that, at the attorney's suggestion,"' he spoke to Church again about the cross-check, but that the plant manager declined to have it made, stating that he was following the attorney's advice.. Fullerton asserted that he informed both the attorney and Church;.in his conversations with them, that the Union was securing new author- ization cards. Church's testimony confirms that of Fullerton with respect to the offer to have the cards checked by "an impartial person" or, as the plant manager put it, "an arbitrator or auditor." 2Y Although Church makes no specific reference to the phrase "a continuous appeal," he does not at any point deny making the state- ments with respect to the "appeal," but, in fact, lends corroboration to Fullerton's version. Church admits that he told Fullerton that the Respondent would refuse to recognize the Union and bargain with it, "on the basis" of a check of the new cards, because the Respondent "would rely on the election." 28 Church's version of the conversation differs from Fullerton's in only one material respect. Church testified that he also told Fullerton, in refusing to agree to the cross-check, that the Respondent "wouldn't know the authenticity of the cards." 29 . The General Counsel presented evidence authenticating the signatures on the cards °0 To counter this evidence and, apparently as corroboration for Church's claim that the Respondent "wouldn't know the authenticity of the cards," the Respondent produced testimony from four of the signatories. One employee, Nell McDonald, testified that she signed a card some time in August because a fellow-employee working near her post in the plant frequently 21 The evidence of the conversation with the attorney was not controverted. The Trial Examiner finds that the conversation, as related by Fullerton, occurred, not only because it was not disputed, but in the light of Church's version of his talk with Fullerton which will be adverted to below 2r Church did not testify to any other conversation with Fullerton about the cross-check. Although Church could not fix the date of his talk with Fullerton, it is clear from the context of both versions that it was the one which Fullerton stated was held about Sep- tember 10, 1946. The Examiner finds that the conversation was held on or about that date. 28 In the light of the testimony given by both Fullerton and Chuich, the Examiner finds that the latter made the statements with respect to "a continuous appeal," as attributed to hunt by Fullerton 23 Respondent's counsel asked Church on direct examination what he stated to Fullerton as his "reason for not agreeing to the card check proposition " Church responded, "well, we wouldn't know the authenticity of the cards . . . They weren't going to bring the cards and show them to us. They proposed we have an arbitrator or auditor, I believe, to check the cards against the payroll " It is somewhat difficult to determine from his testimony whether Church was quoting Fullerton that "they weren't going to bring the cards and show them to us" or whether Church was only giving his interpretation of the situation. However, it makes no real difference in either event, in view of the finds made below. 30 It was stipulated that, If called to testify, 11 persons (named in the record) would have testified "that there is no one of 256 persons named on a list to be marked General Counsel's Exhibit No. 18 whose signature to a 'union card' (meaning G. C. 19) was not witnessed by at least one of the (11) individuals named above, the dates of such witnessing being the dates set opposite the names of the persons on General Counsel's Exhibit No. 18." The effect of the stipulation was to e i blish prima facie, evidence of the authenticity of the cards. 760 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD called her "names" over a period of several months and said he was going to con- tinue until she signed .31 Another employee, Arthur Thomas, stated that he signed after the strike began , and not on August 3, 1946 , the date of his card 87 A third employee , Walter- Sweatt, testified that the union representative who asked " him to sign said that "he was going around getting everybody to sign that didn' t want ( a) strike" ; that the witness responded that he was a watchman and understood that he was not supposed to belong to the Union ; that the repre- sentative said that that circumstance made no difference ; and that he ( Sweatt) then signed "the book." Sweatt asserted that he signed because he thought it was "to keep from striking" and that he did not know that it was to join a union. 3 - The fourth witness, John Shaver, asserted that he worked for 7 weeks after the strike and that he then joined the Union . According to Shaver, after the strike began he frequently found his driveway filled with nails ; that the road for a distance of a quarter of a mile in each direction from his house "was filled full of nails"; that he got many punctures in his tires ; that he then went down to, the Union's office, became a member, and said to Charles Morgan, a union representative , "Let's stop the nails," to which Morgan responded , "All right" and that "there wouldn't be any more " ; and that after he joined the Union, "the nails quit coming." Under cross-examination , Shaver stated that he did not know who put "those nails out there," although he "always watched the driveway" and that when he was interviewed by a Field Examiner employed by the Board he did not tell him anything about the nails "because I thought he was on the opposite side." 3` 81 It is interesting to note that Mrs. McDonald's husband, J. R. McDonald, also signed a card, but there is no suggestion anywhere in the record that he did so for any reason other than of his own free will ax Thomas stated that because he cannot read "enought to get by" he did not attempt to read the card. He testified, also, that he "can't write so well" and that, therefore, the man who witnessed the card signed his name for him, but did so with his permission $8 The Examiner regards Sweatt's testimony that he did not know he was joining the Union as unreliable. His evidence on that point is inconsistent with his testimony that he told the union representative that he did not wish to sign because he was a watchman and understood that he was not "supposed to belong to (a) union. ' The witness did not Impress the Examiner as reliable and lie does not credit his claimed lack of understanding of the reason for his signature 84 Shaver was interrogated about the "nails" at some length. Many apparently extrava- gant and colorful details emerged from his story, some of a manifestly improbable nature. He asserted that both the school bus and mail carrier stopped coming to his house ; that on eight or ten different occasions lie collected enough nails in his driveway to fill both hands, although he "always watched the driveway"; that the nails on the road were "big- headed roofing nails," some of them painted "the same color as the road" and "you couldn't see them" ; and that "these roads was filled full of nails on both sides . they were scattered for about a quarter of a mile each way." At two points, Shaver was asked whether the school bus and mail truck "ever got a punctured tire " Both times, Shaver evaded the questions, stating they did not conic into his driveway. When the matter was pressed, he said that the school bus "got several punctures" and that the mail truck "got punctured tires." Questioned further about the source of his information, lie said that he knew about the bus because lie was told about the punctures and "because he quit coming," and that the mailman told him twice about his truck's punctures Shaver also said he told the "rural police" about the nails and it "got where they would travel through there maybe twice or three times a day. He volunteered that he had "heard they (the police) got nails out there twice." After he testified that they had picked up five punctures one morning on his way to work, he was asked whether he stopped to look for nails on his return, and he made the evasive statement that "they (unidentified) pretty well swept the country that day" and that "they didn't put them out in daylight ... they put them out at night" (although he had never seen anybody "put out" any nails). Upon observation of Shaver's demeanor, it became apparent to the undersigned that Shaver fancied himself as a combatant on one of "opposite" sides and that in his fancied HIGHLAND PARK MANUFACTURING COMPANY 761 ' It is unnecessary to evaluate the testimony of these witnesses (although the Examiner regards Thomas as an honest witness and Sweatt and Shaver as unre- liable)." The fact remains that there is unimpeached evidence that 252 other employees, a majority of the 430 in the bargaining unit, designated the Union as their bargaining agent. This conclusion is fortified by other evidence of the Union's representative status to be discussed below. The testimony does suggest the possibility that Church had some warrant for his refusal to bargain on the basis of the cards because the Respondent "wouldn't know the authenticity of the cards." However, the evidence leads to the con- clusion that the asserted doubt about the authenticity of the cards was not the reason for the refusal to bargain. First, there is the uncontradicted and credited testimony of Fullerton that Church stated before the new signatures were secured that the Company would refuse to have the Union's membership cross-checked and abide by the results because the Respondent had a "continuous appeal" from the Regional Director's findings. , Second, Church admits that he told Fullerton in rejecting his proposal for a check of the new cards and for bargaining on that basis, that the Respondent "would rely on the election." Third, and per- haps most revealing, is Church's testimony that he "believe(s)" that "the Union proposed a new election" after a strike broke out at the plant in September 1946, but that he rejected the proposal, stating "we-still took our stand that we should get the final result of the old election by counting the votes and we agreed if they did count the votes, we would abide by that." Finally, all overtures for a resolu- tion of the controversy came from the Union, but the Respondent rejected all of them and offered none itself, advancing only its adamant insistence that it had a right to go behind its own agreement It would seem that any real-doubts that the Respondent entertained about the authenticity of the cards could readily have been resolved had it been willing to find a basis for removing them. Its failure to offer any proposals and its refusal 'to recede from its position on the'election bespeak its real motive (to which further reference will be made below) for re- jecting the Union's offer to bargain on the basis of a check of the cards. On September 12, 1946, Fullerton called Church on the telephone and told him that the employees "were demanding action" and asked him "what he was going to do about it." Church said "he wasn't going to do anything." r -Fullerton called a meeting of "the Union's members on September 15 and re- ported to them the results of his efforts to.open bargaining negotiations. The membership voted to'go on strike on the following day, "until the Company, agreed to recognize the Union and bargain collectively" with it., The strike began on September 16, 1946, and ended on May 3 or'4, 1947.30 The Examiner finds that the cause of the strike was the Respondent's refusal to bargain with' the' Union and was, -therefore, caused by the Respondent's unfair labor practice. The under- signed also finds that upon the commencement of the strike, the bargaining unit role he was making extravagant use of his imagination.. None of his testimony was cor- roborated by the bus driver, mailman or police (they were not produced as witnesses) The witness' demeanor on the stand, his evasiveness at several points, and his eagerness to inject a description or an event at various places either to justify (unnecessarily) his conduct or place another's under a cloud„ imparted the stamp of unreliability to his ;testimony , 3s The Examiner credits the 'testimony of lfis. McDonald conceimng her'reason for ,joining the Union, although in view of other testimony she gave (to which reference will be made below), lie entertains some doubt about her reliability. The record shows that she voluntarily signed a petition in March 1947, as one of 304 employees. The petition was sent to the Respondent's president and recites the fact that the signers areimembers of the Union and designates it,as their bargaining agent' .. 86A majority of the employees remained`away'froin work during the strike.' 762 DECISIONS OF NATIONAL LABOR : RELATIONS BOARD at the plant was the one described in the agreement for the election and that it numbered 430 persons. Between March 20 and March 24, 1947, the Union circulated a petition among its members and requested them to sign it. The document was addressed to R. H. Johnston, president of the Respondent. Among other things, it recited the membership of the signatories in the Union; that they wanted "the Union to represent us in collective bargaining about wages, hours of work and other conditions of employment" ; and that they were urging "that the Company recog- nize its duty to bargain " The petition was signed by 304 persons who were in the Respondent's employ at the time of the,strike. The signatures were secured, at the instance of the Union, by a notary public, James H. Collins, who was employed in another plant in Rock Hill and was a member of the local of the Union there and ofoits auditing committee. Collins testified that he knew most of the people who signed, that those he did not know were identified for him by others who did, that he gave the petition to all of the signatories to read or read it to them upon request (some could not read), and that they all signed in his presence. Collins stated that about half the employees signed at a commissary operated by the Union, from which strikers secured their food during the strike, and that, except for two or threee individuals whom he met on the street, he visited the homes of the other employees and secured their signatures there. The task consumed several days. The only evidence produced by the Respondent to controvert any portion of Collins' testimony was given by Nell McDonald (who also testified that she signed a card becausq another employee called her names) and her husband, J. R. McDonald, who were both out on strike at the time they signed the petition. They did not dispute the fact that they-signed (Mrs. McDonald signed for her husband at his request because he cannot read or write), but both testified that the document was not signed in Collins' presence. However, Mrs. McDonald stated that she could not remember any of the circumstances surrounding her signing of the petition. "I can't recall a thing about it," is the way she put it. Her husband testified that he was asked at the commissary to sign (he does not state by whom), that he took the petition home because he could neither read nor write, and that his wife signed for them both.• According to McDonald, Collins did not go with-him. There. is no, contention that both McDonalds' did'not sign freely and voluntarily (in fact, McDonald's testimony makes it appear as a cautious and deliberate act). The only matter placed in dispute is whether Collins was present at the time of signing. Significantly, Mrs. McDonald re- members nothing of the incident and her husband 34 does not explain how the petition got back to Collins. However, in view of the voluntary nature of both signatures and the complete absence of any other evidence impugning either the authenticity of any of the 304 signatures or that they were voluntarily affixed to the petition, it is unneces- sary to resolve the question of whether Collins saw the McDonalds sign., It may be assumed that if the Respondent, were in possession of any, other evidence in derogation of that given by Collins, it would have produced it. Its failure to do so supports the conclusion that the signatures are authentic and that the peti- tion is, in fact, what it purports to be. On the basis of the evidence, coupled 37 McDonald suffers visibly from a nervous ailment, manifested by a trembling body, and from a marked speech impairment which rendered his testimony difficult to understand. He was examined only briefly. 38 The authenticity of the petition and its duplication of signatures on the new member. chip cards furnish corroborative evidence of the authenticity of the cards. i HIGHLAND PARK MANUFACTURING COMPANY 763 with the fact that Collins impressed the Examiner as a reliable witness, the undersigned finds that the persons who signed the petition were, on the respec- tive dates on which they signed, members of the Union and that the effect of their signatures was to vest or reaffirm authority in the Union to represent them as their agent for collective bargaining with the Respondent. - The petition was mailed to Johnston on April 12, 1947. Church testified that he spoke to Fullerton about it and that he informed the latter that the Re- spondent "questioned the signatures and questioned whether they were signed with their own free will and accord." However, the only "inquiry or inves- tigation" that Church testified the Respondent made about the matter was "about Mr. Collins." The Respondent "found out that he was a Union fellow" and that "put more doubt in our mind." For all that the record probatively shows, the sole ground for the refusal "to recognize" the petition was the fact that a "Union fellow" acted as a notary in witnessing the signatures. The Respondent's approach to the petition fortifies the view that its real motive for refusing to bargain on the basis of a crosscheck of the cards was not any doubt it entertained about the authenticity of the cards. In the case of the petition, as in that of the cards, all-the Respondent did was to cloak itself with a conclusionary suspicion that it was not representative of the employees' will. On the basis of the whole record, and particularly the Respondent' s rejection of any suggestions made by the Union to reassure it, including even a proposal for a new election, and the Respondent's failure to advance any proposal of its own, except that which would derogate from its agreement, the Examiner finds that the Company did not reject the cards and the petition because of doubts concerning their authenticity, but that it did not wish to bargain with the Union in any event and used its insistence on the claimed invalidity of the Regional Director's determination and its questioning of the authenticity of the cards and the petition as a shield against its obligation to bargain. D. Concluding findings The Examiner makes the following concluding findings : 1. As a result of the election held on May 1, 1946, the Union became on that date, and was at all times thereafter, the exclusive representative of the em- ployees in the unit set forth in the election agreement for collective bargaining with the Respondent. 2. The employees who signed the cards in July, August, and September 1946, and the petition in March 1947, constituted a majority of the unit described in the election agreement, and the signatories thereby designated the Union, aside from the results of the election, as the representative of the said unit for collective bargaining with the Respondent. 3. A majority of the employees in the unit signed the said cards prior to August 31, 1946,n and the petition prior to April 12, 1947. 4. The Union requested the Respondent on June 25, 1946; July 3, 1946; July 16,1946; August 28, 1946; on or about September 10 and 12, 1946; on April 12, 1947; and sometime thereafter, to bargain with it concerning the wages and hours and other conditions of employment of the employees in the said unit. 39 The Respondent was put on notice by the Union that a majority of the employees in the unit had signed the cards . That is the necessary meaning of Fullerton 's conversation with Church on or about September 10, 1946 . The Union also gave definite notice of the effect of the new cards in its letter to the Respondent dated September 23, 1946. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '5..In response to each of the said requests to bargain , the Respondent has refused to bargain collectively with the Union, and has not bargained collec- tively with it 4° 6. By its refusals to'bargain collectively with the Union , the Respondent has violated Section 8 (a) (5) of the Act, and has interfered with, restrained, and coerced its employees at the Rock Hill plant in the exercise of the rights guaran- teed to them by Section 7 of the Act , thus violating Section 8 ( a) (1) of the said Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above , occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States , and tend to lead to labor disputes burdening and ob- structing coiiiinerce and the free, flow of commerce. 11 v. 'THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8 (a) (1) and (5) of the Act , the Examiner will recom- mend that it cease and desist therefrom and, take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, the Examiner will recommend that the Respondent , upon request , bargain collectively with the Union , as the representative of such employees , with re- spect to their rates of pay , wages, hours of employment , and other conditions of employment , and, if an agreement is reached , to embody it in a signed agreement. Having found that the Respondent refused to bargain collectively with the Union as the representative of the said employees and that such refusal interferes with, restrains, and coerces the employees in the exercise of the rights guaranteed to them by Section 7 of the Act, the Examiner will recommend that the Respond- ent be directed , in any like or similar manner , to cease and desist from inter- fering with , restraining or coercing its employees in the exercise of the right to self-organization , to form, join, or assist labor organizations , to bargain collec- tively through representatives of their own choosing , and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection , to the extent provided by law. Upon the basis of the foregoing findings of fact and of the entire record in this proceeding, the undersigned makes the following: CONCLUSIONS OF LAw 1. Textile Workers Union of America , CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2.' All of the Respondent 's production and maintenance employees at its Rock Hill, South ' Carolina, plant, exclusive of clerical employees, superintendents, overseers , second hands, and all other supervisory employees having authority to hire, promote, discharge, discipline or otherwise effect changes in the status of 90 Considered in the light of the evidence , the Examiner finds that, in addition to its oral rejection of bargaining 'requests , 'the Respondent's letters to the Union, dated Time 28, July 5, and July 22, 1946 , constitute a refusal to meet with the Union for the purpose of collective bargaining. . HIGHLAND PARK MANUFACTURING ' COMPANY 765 employees , or effectively recommend such action, or having the authority set forth in Section 2 (11) of the Act, constitute a unit appropriate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Textile Workers Union of America , CIO, was on May 1, 1946 , and at, all, times thereafter has been, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining , within ,the meaning of Section 9 (a) of the Act. 4., By refusing on June 28, 1946, and on various occasions thereafter , to bargain collectively with the Textile Workers Union of America, CIO , as the exclusive representative of its employees in the appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices , within the meaning of Section 8 ( a) (5) of the Act. 5. By interfering with, restraining , and coercing its said employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged ,in, and is engaging in,. unfair labor practices , within the meaning of Section 8 (a) (1). 6. The aforesaid unfair labor practices are unfair labor practices affecting .commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act. RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the Examiner recommends that Highland Park Manufacturing Company of Rock Hill, South Carolina, its officers, agents, suc'- cessors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all of the Respondent's production and maintenance employees at its Rock Hill, South Carolina , plant, exclusive of clerical employees, superintendents, overseers , second hands, and all other super- visory employees having authority to hire, promote, discharge, discipline or other- wise effect changes in the status of employees, or effectively recommend such action, or having the authority set forth in Section 2 (11) of the Act ; '(b) Engaging in like or similar acts or conduct interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization , to form labor organizations, or to join or assist Textile Workers Union of America, CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective'bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effec- tuate the policies of the Act: (a) Upon request, bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of the employees in the appropriate unit described above, with respect to their rates of pay, wages, hours of 'employment, and other conditions of employment, and, if an agreement is reached , to embody it in a signed agreement ; (b) Post at its plant in Rock Hill , South Carolina, copies of the notice attached to this Intermediate Report marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall , after being signed by the Respondent's representative, be posted by the Respondent , and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including 853396-50-vol 84-52 766 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Tenth Region in writing, within twenty (20) days from the date of the receipt of this Intermediate.Report, what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the & National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) clays from the date. of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C, an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recom- mended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same pe- riod, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall des- ignate by precise citation the ,portions of the record, relied upon_,and, shallrbe legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and ,Regulations; the findings, conclusions, recommendations and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections thereto shall ,be deemed waived for all purposes. Dated at Washington, D. C., this 31st day of March 1949. HERMAN MARX, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor .Relations Board, and in order to effectuate the policies of the National^Labor Relations Act, we hereby notify our employees that : WE WILL BARGAIN collectively, upon request, with the TEXTILE WORKERS UNION OF AMERICA, CIO, as the exclusive representative of all employees in the barganing unit described herein with respect to rates of pay, wages, hours of employment or other conditions of employment, and if an agreement is reached, embody it in a signed agreement. The bargaining unit is: HIGHLAND PARK MANUFACTURING COMPANY 767 All production and maintenance employees of our plant in Rock Hill, South Carolina, exclusive of clerical employees, superintendents, overseers, second hands, and all other supervisory employees having authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees, or effectively recommend such action, or having the authority set forth in Sec- tion 2 (11) of the National Labor Relations Act, as amended WE WILL NOT, by refusing to bargain, or in any like or similar manner, in- terfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist TEXTILE WORKERS UNION OF AMERICA, CIO, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to en- gage in concerted activities for the-purpose of collective bargaining or other mutual aid or protection. HIGHLAND PARS MANUFACTURING COMPANY, Employer. By ----------------------------------------------- (Representative) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not he altered, defaced, or covered by any other material.