Schramm and Schmieg Co.

In the Matter of SCHRAM11I AND SCHMIEG COMPANY and UPHOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1860, A. F. OF L. Case No. 18-C-1170.-Decided April 30,1946 DECISION AND ORDER On February 8, 1946, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair practices and rec- ommending that the respondent cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed, The Board has considered the Intermediate Report, the re- spondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modification : We agree with the Trial Examiner and find that the nine employees referred to in the Intermediate Report who signed union authorization cards on September 20, 1945, and later instructed employee Mrs. Howard, to whom they had entrusted them for delivery to the Union, to delay delivery thereof until the next union meeting, effectively authorized the Union to represent them inasmuch as the cards were delivered to the Union without protest or any other action on the part of the nine employees. However, in making our determination that the Union represented a majority of the respondent's employees in the appropriate unit at all times material herein, we find it unnecessary to, and do not, rely upon the Trial Examiner's alternative conclusion that the respondent's unfair labor practices prevented the Union from at- taining majority status. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 67 N. L R B, No 120 980 SCHRAMM AND SCHMIEG COMPANY 981 Board hereby orders that the respondent, Schramm and Schmieg Company, Burlington, Iowa, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Upholsterers Interna- tional Union of North America, Local 1860, A. F. of L., as the exclusive representative of all its glove-plant employees, excluding office, cleri- cal, and supervisory employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Upholsterers International Union of North America, Local 1860, A. F. of L., or any other labor organiza- tion, 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 Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Upholsterers Interna- tional Union of North America, Local 1860, A. F. of L., as the exclu- sive representative of all its glove-plant employees, excluding office, clerical, and supervisory employees, with respect to rates of pay, wages, hours, and other terms and conditions of employment; (b) Post at its glove and overall plants at Burlington, Iowa, copies of the notice attached to the Intermediate Report marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the re- spondent's representative, be posted in both plants by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material; (c) Notify the Regional Director for the Eighteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Stephen M. Reynolds, for the Board. Mr. J. L. Thomas, of Burlington, Iowa, for the respondent. Messrs. Martin Baner and Kenneth F. Johnson, both of Burlington, Iowa, for the Union. I This notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "The Recommendations of a Trial Examiner" and substitut- ing in lieu thereof the words, "A Decision and Order." 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE Upon a second amended charge duly filed on December 11, 1945, by Uphol- sterers International Union of North America, Local 1860, A. F. of L, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint dated December 19, 1945, against Schramm and Schmieg Company, herein called the respondent, alleging that the respondent at its plant in Burlington, Iowa, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing thereon, were duly served upon respondent and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged in substance that respondent: (1) from on or about September 19, 1945, and at various times thereafter to the date of the complaint, (a) in- terrogated its employees concerning their union membership and activities, (b) warned and discouraged its employees against union membership and activities, (c) warned and threatened its employees that benefits enjoyed by employees might be withdrawn if union organization should be successful, (d) suggested to its employees that an inside union might be acceptable to respondent, (e) en- gaged in surveillance of the union activities of its employees, and (f) promised and put into effect on September 25, 1945, a wage increase for certain employees on the condition that the employees abandon their union affiliations and activi- ties ; (2) on or about September 27, 1945, and at all times thereafter, refused and continues to refuse to bargain collectively with the Union as the exclusive representative of the employees in an appropriate unit; and (3) by such conduct engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) of the Act. Respondent's answer filed on December 29, 1945, admitted the allegations of the complaint with respect to the nature of its business, stated that respondent was without knowledge of the appropriateness of the alleged appropriate unit, and denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on January 8 and 9, 1946, at Burlington, Iowa, before the undersigned Trial Examiner, Martin S. Bennett, duly desig- nated by the Chief Trial Examiner. The Board and respondent were repre- sented by counsel and the Union by its representatives. Full opportunity was afforded all parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. During the hearing, a motion by counsel for the Board to conform the pleadings to the proof as to formal matters was granted. Counsel for the Board and for respondent argued orally before the undersigned at the end of the hearing and were afforded an oppor- tunity to file briefs. A brief has been submitted by respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Schramm and Schmieg Company, an Iowa corporation whose principal office and place of business is at Burlington, Iowa, is engaged in the manufacture, sale, and distribution of gloves and overalls.' During the year 1944, it purchased 1 Respondent operates a glove factory and an overall factory In one building. They are on different floors, have separate supervision and there is no Interchange of personnel between them . The instant proceeding is concerned only with the glove factory. SCHRAMM AND SCHMIEG COMPANY 983 raw materials, consisting of cloth, leather, cotton flannel, buttons, and acces- sories, valued at approximately $52,000, substantially all of which was shipped to its plant from points outside the State of Iowa. During the same period, the value of gloves manufactured and sold by respondent, was approximately $70,000, of which approximately 60 per cent was shipped to points outside the State of Iowa. Respondent stipulated that its purchases and sales in later- state commerce during 1945 were in approximately the same volume and pro- portion as in 1944. If. THE OBOANIZATION INVOLVED Upholsterers International Union of North America, Local 1860, affiliated with the American Federation of Labor, is a labor organization admitting to mem- bership employees of respondent. III. THE UNFAIR LABOR PRACTICES A Interference, restraint, and coercion 1. Background Respondent's employees formerly had an independent union whose formation was suggested by Factory Superintendent Berges ; it was in existence for five or six years and became quiescent approximately one year prior to the hearing in the subject case.' In August 1945, organizational activity by the International Glove Workers Union of America, A F. of L., commenced in respondent's plant and a majority of the employees in its glove factory signed A. F. of L. designation cards during that month. On or about September 12, Vice-President White pf the Glove Workers Union requested Business Agent Martin Baner of the Union to take over the organization of respondent's employees, stating that he, White, was leaving Burlington. On September 18, Baner acceded to White's request. 2. Organization by the Union; respondent's counter-measures On September 19, the Union held its first organizational meeting for respond- ent's employees at the Burlingtoh Labor Temple. Approximately sixteen glove factory employees attended and fourteen signed new designation cards for the Union after Baner announced that White had sent him the A. F. of L. designation cards signed in August. The meeting adjourned and the next meeting was scheduled for September 21. Foreman James Gray of the glove factory testified that on the evening of September 19, he drove his automobile to the Elks Club, which is located next door to the Labor Temple, and after parking in front of the Elks Club, sat in his automobile for about five minutes prior to entering. He further testified that he saw three of his employees, Dorothy Bonser, Anna Hanson, and Clara Stiefel, enter the Labor Temple during this period He admitted that there had been "unrest" among the employees in the glove factory concerning wage rates and stated that by "going to the Elks Club I think I found out what it was all about." His presence outside the Labor Temple was noted by some of the employees at the meeting and was commented upon. At noon, on September 20, designation cards for the Union were distributed at the glove factory among the employees. Nine were signed and turned over to employee Edythe Howard who was to deliver them to Business Agent Baner. 2 The complaint does not allege and the undersigned does not find that respondent en- gaged in conduct violative of Section 8 (2) of the Act. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later, about 2:30 in the afternoon, Foreman Gray spoke to Dorothy Bonser, because he had seen her enter the Labor Temple the prior evening, and told her that he knew of the interest in the Union. He stated that he did not wish any- thing to happen in the absence of Factory Superintendent Oscar Berges' and desired that the employees postpone their next union meeting (scheduled for September 21) until after Borges' return. He asked Bonser if she could have the meeting postponed ; she declined, explaining that she did not have this authority. He then asked Bonser to summon the employees to the back room Bonser walked through the aisles of the factory and announced that the employees were wanted in the back room; about fourteen went to the back room and were addressed by Gray.' Gray testified, and the undersigned finds, that he told the assembled group he wanted nothing to happen in the absence of Superintendent Oscar Berges that might interfere with production; that he, Gray, was taking the responsibility on his own shoulders of announcing a 10-percent wage increase for piece workers;` and that he wished the group to postpone the next meeting of the Union until after Berges' return. The undersigned further finds that Gray said he knew of the attendance of some of the employees at the union meeting the prior evening; that he had noted people going to the Labor Temple that evening who had not been known to go there before; that he had heard the employees were going to join the Union and that lie was angry over the matter ; and also erroneously named Eva Giese as having attended the meeting' Gray was promptly informed by his audience of his mistake with respect to Giese According to the credible testimony of Howard and Laughlin, Gray commented to the group on the employees not being taken into the Glove Workers Union, stated that White had left town, and suggested that the employees delay their union activities until another Glove Workers Union organizer appeared. Howard, Laughlin and Mark all testified that Gray said the advent of the Union would cause economic hardship for some workers in the plant. The undersigned so finds. Gray concluded his remarks by telling the group to take thirty minutes to talk over his request that the next meeting of the Union be postponed. His suggestion for a discussion was readily adopted, and Gray designated Ralph Neal to preside s The group promptly held a conference for approximately thirty minutes with Neal presiding, and it was the consensus that the union meeting scheduled 3 Berges , who was also a director of respondent , was in New York at the time, and returned to Burlington on September 21. 4 The foregoing findings in this paragraph are based upon the substantially concurring testimony of Gray and Bonser. 6 Employee Hanson, who was called by respondent , and employees Mark and Howard, who were called by counsel for the Board, each testified that only those employees who had attended the union meeting on the prior evening were summoned The consensus of testi- mony concerning the number present at Gray's speech was approximately 14, and this tallies with the number who signed union designation cards on September 19 6 Of the 39 employees then in the glove factory, 29 were piece workers and 10 were hourly rated The wage increase was put into effect that day, retroactively for that work week. 7 This finding is based upon a reconciliation of the testimony of employees Anna Hanson, Esther Mark, Ina Laughlin , and Edythe Howard. 6 Ralph Neal testified that he suggested the group hold this conference. In view of Gray's testimony that he thought he designated Neal and Dorothy Bonser to preside over the conference , the unequivocal testimony of Howard and Laughlin that it was Gray who suggested the girls talk it over with Neal presiding, and the testimony of Anna Hanson, called by respondent , that it was Gray who suggested the girls talk it over, the under- signed rejects Neal's testimony that it was he who suggested holding this conference. Gray 's testimony is also rejected insofar as Gray testified that he also designated Dorothy Bonser to preside. SCHRAMM AND SCHMIEG COMPANY 985 for September 21 be postponed. Accordingly, a committee consisting of Lillian Long, Charlotte Wagler, and Clara Stiefel was appointed by Neal s to go with Edythe Howard to the Labor Temple after work and inform Business Agent Baner of the decision.1° At the conclusion of the discussion, the power, which had been turned off, was turned back on again and work was resumed for the balance of the afternoon " When the shift was over at five o'clock, Howard and the Committee went to the Labor Temple and informed Baner of the desire to postpone the union meeting scheduled for September 21. Howard then turned over to Baner the nine union designation cards signed that noon. The meeting of September 21 was, however, convened as scheduled, but since only six or seven employees were present, it was adjourned until September 26. At approximately 9 a. m. on Monday, September 24, Foreman Gray turned off the power in the plant and Superintendent Berges, accompanied by a stenog- rapher, entered and addressed the employees. The stenographer recorded his speech, and it follows: We have known for some time that there has been an undercurrent up here and some dissatisfaction. That is not news to us. There have been certain things that we would have liked to have done that we could not do because we were forced to live up to the rules and regulations that were laid down for us by the War Labor Board. We are told that you folks are seriously considering joining a Union, and that there are about thirty some odd girls that have signed for this. Now, girls, that's your privilege and we certainly would not say anything to you, asking you not to take an action of this kind because you have a right to do that. No doubt the Union has pictured your future to you but we felt that it was only fair that we should come up here and kind of reminisce about what has happened and what we have done. We have in years gone by paid you for each and every holiday you did not work. We paid you for V-E day, we paid you for the two V-J days ; and we have no intention of discontinuing that. We have given you a Christmas gift, we have given you a Christmas party when we could give you stuff to eat, we have given you picnics and we have stood our share of that expense. Those are things that we have done. Two weeks ago when we left for New York we talked this over-the Pres- ident of this firm, the Board of Directors, and myself and before we left we had definitely made up our minds to come home and tell you we were going to give you a ten per cent increase in your piece-work rates That is going into effect now and that's the picture we can give you today. To those of you who are not piece-work operators, we will adjust it so that you will be on an even basis with everybody else. We have about twenty-two people in this factory who do not earn their wage but we pay them what we are sup- posed to pay them and will continue to do so We feel sorry for the girls who have the talent to speed up this work and we could do nothing for. If there is a way to adjust this, we certainly will do it. You people are at the crossroads today-we don't know whether you want to join the Union one- hundred per cent or whether you want to go along the way Schramm & 9 Other instructions purportedly given the Committee by Neal are hereinafter discussed In the section dealing with, "The refusal to bargain collectively " 10 An undisclosed number of employees, in addition to those present at Gray's speech, attended this discussion ; this number included Eva Giese and Viola Giese who both testified that they were informed at that time as to what Gray had said 11 It does not appear that the employees were not paid for this time. 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schmieg's have been going. You have that choice to make and I do not want to influence you. If you join the Union, you know what we have done for you. If the Union can give you inviting things that look better to you, that is your privilege and I hope you think it over and decide what's best for you to do. We do want you to know that we all appreciate how loyal you have been to us. We are all jittery nowadays and I am free to confess to you that the last time your committee came down, maybe I was cross and I didn't mean to be that way. Recently, I've had to make out two reports for this glove factory that went back to 1942, 1943, 1944, and 1945-how many yards we have used, bow many gloves were made, every thing. That is what I had to do so, as I say, the world is jittery today and it is unfortunate If the Union is a salvation, girls, let's have a Union. If the other way is a salvation, let's have that. Our boys have a right to come home to a decent world to live in and that is what we are trying to give them. You can join any Union you want, you can have a Union of your own, you can call it a Schramm & Schmieg Union. So while you are at the crossroads, girls and boys, do think it over and I want you to do what you think is best. Now, a lot of factories are giving vacations. We did not give a vacation this year because the country was in a critical condition for Gloves and still is. We took this way out by paying you for every holiday rather than give a vacation. If you would sooner have us do that than give you a week's vacation, we will continue that. We want you to tell us what to do.36 Conclusions The above-described course of conduct discloses a deliberate effort by respondent to frustrate self-organization among its employees as well as to neutralize the efforts of the Union to serve as their bargaining representative. Foreman Gray in explaining his presence at the Labor Temple on the evening of the union meeting on September 19, testified that lie went to the Elks Club located next door to the Labor Temple in order to purchase some tickets for a picnic. He admitted that when he parked his car in front of the Elks Club he did not immediately leave the car, but sat there for about 5 minutes because he observed several of his employees entering the Labor Temple. He did not explain whether he saw these employees enter the Temple singly or together. Gray admitted that seeing these employees enter the Temple made clear to him that his employees were organizing. It is evident therefrom, and the undersigned finds, that Gray remained in his car for the purpose of observing which of several of his employees entered the Labor Temple, when normally and absent his curiosity, he would have immediately left his car and gone about his business. Under these circumstances the undersigned is persuaded and finds that Gray engaged in surveillance of his employees in violation of Section 8 (1) of the Act" After Foreman Gray engaged in surveillance of the Union's place of assembly and learned that the glove plant employees were interested in the Union, he 32 Employees Howard and Mark both testified that Berges also said the employees would forfeit holiday pay and Christmas parties, If the Union came into the plant ; according to Howard, this was said after the stenographer stopped taking notes. Berges denied saying anything in his speech beyond what is hereinabove quoted, but admitted that after this speech he conversed with some employee4 on subjects other than the contents of the speech or the Union. It is unnecessary to resolve this conflict, as will hereinafter appear. ' See Matter of Standard Gage Company, Inc., 54 N. L it. B. 160, and Matter of Ridge Tool Company, 58 N. L. it. B. 1095. SCHRAMM AND SCHMIEG COMPANY 987 immediately, as he testified, became concerned that a union committee might "approach" him, and that the employees might utilize their economic strength in a concerted manner Accordingly, on the following day, after a majority of the employees had signed designation cards for the Union, he spoke to Dorothy Bonser, indicated that he knew of the union organizational campaign, and sug- gested postponement of the next union meeting. He then summoned a group of his employees, which consisted largely of those who had attended the meeting of the Union on the prior evening. He stated his displeasure over their attendance at the union meeting the prior evening and proceeded to disclose the name of an employee who, he asserted, had been there, thereby revealing his surveillance; he indicated that the employees should affiliate with another union and pointed out that the advent of the Union would cause economic hardship to some workers He further announced. for the first time, that a 10-percent wage increase would go into effect that day, as in fact was done, although the day was Thursday and the middle of a pay period ; he asked the assemblage to postpone their next meeting of the Union until after the return of Superintendent Berges from New York, and concluded by instructing them to take the next 30 minutes of working time to talk over this suggestion. Respondent contends that it had been unable to grant a wage increase to its employees prior to August 18, 1945, on or about which date War Labor Board re- strictions were lifted in part Its position is that it was desirous of increasing wage rates at that time, but refrained from taking any immediate action subse- quent to August 18 because of its uncertainty as to the legality thereof ; that Berges intended to at that time, and subsequently did, obtain advice while in New York that respondent might properly proceed with wage increases' Berges testi- fied that before his departure for New York, which was approximately two weeks prior to his speech on September 24, he discussed the question of a wage increase with Gray and authorized him to proceed with it in his absence "if anything happens," unless he heard from Berges to the contrary. Berges, knowing of the employees' desire for a wage increase, as a result of his prior meetings with their committee, and as is shown from his statement to Gray, foresaw the possibility of concerted action by the employees in furtherance of their desire. Consequently, he selected a wage increase as an inducement to dispel any concerted activity and authorized Gray to grant a wage increase in his absence "it anything happens." Gray, within 24 hours after learning of the concerted activity among re- spondent's employees on September 19 and 20, followed Berges' instructions and announced a wage increase. Not only did he rely upon the wage increase, but he also engaged in other conduct to deter interest in the Union, as pointed out above Almost immediately upon his return from New York, Berges addressed the employees and approved of Gray's conduct in announcing the wage increase four days earlier ; furthermore, in the same speech, he revealed that he had been informed "there are about thirty some odd girls (a substantial majority) that have signed for" the Union, and despite such information suggested the possible formation of a "Schramm & Schmieg Union." In view of the fact that a wage increase could have been granted by respondent as far back as one month prior to Gray's announcement of it, the lack of merit in the contention that respondent was awaiting advice in New York, and Berges' 14 The undersigned rejects this contention, because, as appears below, before leaving for New York and prior to receipt of the advice, Berges authorized Gray to grant the wage increase without further word from Berges in the event of a certain contingency. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instruction to Gray to use the wage increase as a countermeasure to concerted activity, the undersigned finds that respondent granted a wage increase for the purpose of interfering with the self-organization of its employees" The speech by Berges on September 24, following closely Gray's surveillance, and other anti-union activities, under the circumstances disclosed above, consti- tutes a part of respondent's general effort to discourage and defeat employee organization. As found above, the announcement of a 10-percent wage increase 4 days earlier by Foreman Gray was confirmed by Berges. Berges also took this opportunity to remind the group that he knew they were seriously consider- ing affiliation with a union and that lie was informed a majority of the girls had signed union designation cards, despite which he suggested that the group could form a "&hramm & Schmieg Union." Upon the basis of the entire record, the undersigned finds that respondent, by its entire course of conduct, as outlined above, including surveillance by Gray and speeches by Gray and Berges, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain collectively 1. The appropriate unit The complaint alleges, and respondent stipulated at the hearing, that all em- ployees of respondent employed in the glove plant, excluding office, clerical and supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining. The undersigned finds that the above-described unit at all times material herein constituted and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Representation by the Union of a'^majority in the appropriate unit The complaint, as amended, alleges that on or about September 27, 1845, and at all times thereafter, the Union requested respondent to bargain collectively with it as the exclusive representative of the above-described employees in the appropriate unit, and respondent refused. In support of the contention that the Union represented a majority in the appropriate unit, counsel for the Board introduced in evidence 23 signed union designation cards dated September 19, 1945. As appears hereinafter, 14 of the cards were signed on September 19, and 9 of the cards, although dated September 19, were, in fact, signed at noon on September 20. There were 39 employees in the appropriate unit for the pay-roll period ending September 28, 1945 With respect to the 14 designation cards signed on September 19, employee Howard credibly testified and the undersigned finds that the 14 employees whose names appear thereon, including herself, were included in the approximately 16 present at the union meeting held on that date ; that she saw some write on their respective cards and saw the signers place them on the table ; and that she then inspected the signatures on each of the cards, which were 14 in number, includ- ing her own. Eight of the employees whose names appear on the 14 cards, in- cluding Howard, were called as witnesses, 3 by counsel for the Board and 5 by counsel for respondent, and 7 testified that they were at the union meeting on September 19 and signed cards The eighth employee, Lillian Long, testified id See N. L. R. B. v. Crown Can Company, 138 F. (2d) 263 (C. C. A. 8), cert. den. 821 U. S. 769, and Matter of A . J. Showalter Company, 64 N. L. R. B. 573. SCHRAMM AND SCHMIEG COMPANY 989 that she was at the union meeting on September 19, but was not asked whether she signed a card. With respect to the nine cards signed on September 20, employee Howard testi- fled credibly and the undersigned finds that she distributed designation cards at noon on September 20 to three of the employees whose names appear on the cards and that they were signed in her presence and returned to her; that employee Dorothy Bonser distributed several cards and returned them, signed, to Howard. Bonser testified that she distributed some cards at noon, collected them, and turned them in, signed, to Howard Of the nine employees whose names appear on the cards, two, Eva Giese and Viola Giese, who were not included in the group) of three employees Howard identified as signing in her presence, were called as- witnesses and testified that they each signed cards at noon on September 20. The 23 cards, referred to above, were offered and received in evidence at the, hearing. The respondent having the opportunity to inspect and compare the, signatures thereon against its own records made no attack upon the authenticity, of the signatures as such. In view of this and the testimony disclosing the circum- stances under which the cards were signed and obtained, the undersigned finds that the 23 above-described cards on their face constitute valid designations of the Union.1e Respondent contends, however, that subsequent to the meeting addressed by Foreman Gray on September 20, the employees decided to delay turning in the nine cards, signed that day but 3 hours earlier, and that this, in effect, renders them invalid as they were delivered to the Union contrary to the will of the employees. The record is conflicting as to whether or not the employees at the conference- presided over by Neal decided that the designation cards signed that noon and turned over to Edythe Howard not be turned in to the Union that evening. Sev- eral employees testified that the majority of those present decided not to turn the cards in that evening, and Neal, who was called by respondent, testified that he so instructed the committee which was to call upon Baner that evening to request postponement of the union meeting; however, he admitted, on cross- examination, that there was no vote on this point and that he took it upon him- self to so instruct Howard Howard also testified that her instructions came from Neal alone, after Gray's speech, that none of the signers of the nine cards instructed her not to deliver them, and that she and the committee delivered thu cards to Baner. The record establishes, and the undersigned finds, that when these cards were signed the 23 respective signers clearly and unqualifiedly intended to designate the Union as their collective bargaining representative, with no reservations of any sort.17 As to the nine cards, they were unconditionally turned over to 11 See N L R. B v. Service Wood Heel Company, 124 F. (2d) 470 (C. C. A 1), N L. R. B. V. National Motor Bearing Company, 105 F. (2d) 652 (C C. A. 9, and Matter of Metal Textile Corporation, 47 N. L. R. B 743. 17 Employee Hanson, whose card is included in the 14 cards signed at the union meeting on September 19, was called as a witness by respondent She testified that she signed the card bearing her name and signature, read it before she signed it, and understood that she was thereby applying for membership in the Union She further testified, however, that by signing the card she did not intend to designate the Union as her bargaining representative. The card states on its face, in clear and unambiguous terms, that the signer is applying for membership in the Union, and also designates the Union to act as the signer's bargain- ing representative. The witness was an adult, spoke good English, and readily compre- hended the subject matter concerning which she was testifying. There is no evidence whatsoever of fraud or duress in the circumstances surrounding the signing of the card by Hanson . It must also be borne in mind that the witness testified for the respondent, by 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edythe Howard, who was to deliver them to the union business agent. As far as the respective signers were concerned, they had completed their designation of the Union and Howard could have left work immediately without any protest on their part and turned in the cards. This, Howard did not do, and subsequent to Gray's speech, heretofore found to be violative of the Act, a number of the girls decided that delivery of the cards be delayed temporarily ; they were, how- ever, delivered later that day by Howard There was no request or attempt upon the part of any of the respective signers to regain possession of the cards, nor were protests or attempts to revoke them made by any employees subsequent to the turning in of the cards by Howard to Baner. The undersigned finds, in view of the foreging, that the nine cards were not rendered ineffective. Alternatively, as is hereinafter set forth, the Union was designated by a majority of the employees in the appropriate unit as seven of the nine cards signed at noon on September 20 are unquestioned by specific testimony. Only two of the signers of these nine cards were called as witnesses, Eva Giese and Viola Giese. They each testified that they intended to designate the Union when they signed the cards at noon on September 20, but, at the meeting of employees fol- lowing Gray's speech, decided that they did not want their cards turned in just then. They both admitted that they were then informed, in substance, of the contents of Gray's speech. The signers of the other seven cards were not called as witnesses. Likewise, there is no testimony or evidence in the record as to the specific wish of each and all of them other than as expressed by their respective designation cards. The record does indicate that those present at the 30-minute conference held upon Gray's suggestion included not only the approximately 14 at Gray's speech, but also other employees in the factory, although their number is not given. It is obvious that any decision that may have been reached concerning not turning in the designation cards was participated in by others than the signers of the seven cards and, in fact, there is no evidential basis for even assuming that these seven were present and participated in the discussion and decision. Assuming, without finding, that the two cards signed by Viola Giese and Eva Giese, do not constitute valid designations of the Union, there is, however, no evidence of any subsequent change of attitude on the part of the respective signers of the seven other cards with respect to turning them in to the Union. The undersigned concludes and finds alternatively that these seven designation cards stand as a valid designation of the Union and coupled with the 14 cards signed the previous evening constitute a union majority of 21 out of a total of 39 in the unit. As another alternative, assuming as respondent contends, that the nine cards signed on September 20 are rendered invalid by the subsequent decision of the employees to delay turning them in, the record is clear, as will be shown below, that such decision was induced and caused by Gray's speech and announcement of a wage increase which have been found to be violative of the Act. Gray, whose surveillance of the Union's place of assembly on September 19 was known by the employees, promptly proceeded on the following day to engage in conduct violative of the Act by requesting an employee to postpone a union meeting, by warning a group consisting largely of the employees who had attended the whom she was still employed at the time of the hearing, and that this was subsequent to respondent's anti-union campaign and announcement of a wage increase , heretofore found to be violative of the Act. In view of the above , the undersigned rejects Hanson's testimony that she did not intend to designate the Union as her bargaining representative when she signed a designation card and finds that Hanson's card is a valid designation of the Union. SCHRAMM AND SCHMIEG COMPANY 991 union meeting on September 19 that he was angry over their attendance at the meeting, by announcing a 10-percent wage increase, by requesting that the employees postpone the next meeting of the Union, and by instructing them to take the next 30 minutes of working time to talk over the latter request, as more fully described above. The employees immediately held a meeting in accordance with Gray's suggestion and not only voted to comply with Gray's request that the next meeting of the Union be postponed, but some of those present also were in favor of not turning in to the Union the designation cards signed that noon. In view of these circumstances, and particularly because the instructions by the employees to delay turning in the union designation cards followed immediately upon the heels of the wage increase admittedly granted by Gray to forestall concerted activity upon the part of respondent's employees, the undersigned finds that the request of some employees to delay turning in the designation cards to the Union was a consequence of respondent's illegal conduct and hence did not affect the validity of the designations. It can only be concluded that if the union majority of 23 which existed at noon on September 20 were dissipated at 3 o'clock that same day it resulted from respondent's unfair labor practices. "The unfair labor practices of the respondent cannot operate to change the bargaining representative previously selected by the untrammelled will of the majority." 'a The undersigned finds that on September 27, 1945, and at all times thereafter, the Union was and now is, the duly designated representative of a majority of the employees in the aforesaid appropriate unit, and by virtue of Section 9 (a) of the Act, the Union at all such times was and now is the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, or other cpnditions of employment. 3, The refusal to bargain Business Agent Baner telephoned Superintendent Berges during the morning of September 27 and asked to confer with him; a conference was arranged for 11 a. m. that day. Baner was accompanied by Kenneth F. Johnson, Chairman of the Organizing Committee for the Burlington Trades and Labor Assembly and a stenographer who took notes. J L. Thomas, respondent's attorney in this proceeding, was also present' Bauer stated that the Union represented a majority of the glove plant employees and that in his opinion respondent had engaged in unfair labor practices by the acts and speeches of Gray and Berges He stated that it was respondent's duty to recognize the Union as bargaining agent for its glove plant employees and that if this were done, he would refrain from filing charges under the Act, Berges requested that an election be held and Baner refused, explaining that unfair labor practices had been committed by respondent. Berges concluded by saying that he had no authority to recognize the Union or sign a contract without consulting respondent's Board of Directors. He agreed to consult the latter and stated that he would notify Baner before 3 p. in, that day of their decision. Berges promptly consulted with the Board of Directors and they unanimously voted to insist upon an election. At 3 p. in., Berges tele- 19 N. L. R. B v. Bradford Dyeing Association, 310 U. S. 318. See N. L. R. B. v. Burke Machine Tool Company, 133 F. (2d) 618 (C. C. A. 6) ; N. L. R. B. v. Chicago Apparatus Company, 116 F. (2d) 753 (C. C. A. 7) ; Matter of A. J. Showalter Company, 64 N. L, R. B 573. L' The findings as to this conference are based upon the substantially corroborative testi- mony of Baner, Johnson and Berges. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phoned Bauer and stated that the Board of Directors felt that no unfair labor practices had been committed and that the Union could proceed as it saw fit. Baner did not contact respondent again. In October or November, as Thomas testified, a Field Examiner of the Board, Storeley, conferred with Thomas and Baner Thomas testified further that the Field Examiner proposed that a card check be held to determine whether or not the Union had a majority Thomas rejected the suggestion and stated, in effect, that it was respondent's position that an election be held2° That respondent had reason to believe, prior to the request to bargain, that a majority of its glove plant employees had designated the Union as their collective bargaining representative is evidenced by Berges' statement in his speech of September 24 that "We are told that you folks are seriously considering joining a Union, and that there are about thirty some odd girls that have signed for this " Berges testified that he did not know the Union had a majority; that the above- quoted excerpt from his speech of September 24 was based on information given him previously that morning by an employee who was referring to the Glove Workers Union. It has heretofore been found that Foreman Gray was aware of the organizational activity by the Union and referred to it in his speech of September 20. Gray knew, as he mentioned in his speech, that the Glove Workers Union organizational effort had ceased In addition, Gray admitted that he had informed Berges during the morning of September 24 of his granting the 10-percent wage increase, of seeing three employees go to the Libor Temple on September 19, and of his request that the next meeting of the Union be post- poned. It is not a reasonable conclusion that one of the factory employees sud- denly decided on September 24, approximately one month after the Glove Workers Union had ceased its activities, to inform Berges that a majority of the glove plant employees had joined that union, and Borges' testimony is rejected insofar as it referred to his being informed that a majority of the employees had signed cards for the Glove Workers Union. The undersigned finds that on the morning of September 24, 1945, and at all material times thereafter, Berges had reason to believe that the Union represented a majority of respondent's glove plant employees. Respondent, on September 27, refused to recognize the Union as bargaining agent for its glove plant employees and requested that the Union's majority be determined by an election. About one month later, it also rejected a proposal that a card check be held to determine the Union's majority status, and asserted its position that an election be held. It is obvious, and the undersigned finds, that respondent's refusal to recognize the Union on September 27 and its subse- quent refusal to agree to a card check to ascertain the Union's majority status were not made in good faith or on justifiable grounds. In requiring the Union to reestablish its majority by means of an election after the commission of unfair labor practices, respondent imposed upon the Union an undue obstacle to collec- tive bargaining. It is well settled that respondent may not take advantage of its unfair labor practices, as heretofore found, as a basis for its refusal to grant recognition to the Union21 The undersigned finds that on September 27, 1945, and at all times thereafter, respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit with respect to rates of 20 This position is substantially reaffirmed in respondent's answer. 21 See footnote 18, supra See also Matter of The Nubone Company, Ino., 62 N. L, R. B. 322 , Matter of Twin Cety Milk Producers Association, 61 N. L. R. B. 69. SCHRAMM AND SCHMIEG COMPANY 993 pay, wages, hours, and other conditions of employment, and that respondent has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act TV. THE EFFECT OF THE UNFAIR LABOR PRAC':ICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in con- nection 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 obstructing commerce and the free flow of commerce v. THE REMEDY Having found that respondent, by independently violating Section 8 (1) of the Act and also Section 8 (5) thereof, has committed unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. The recommended cease and desist order is predicated upon the following findings. In addition to the fact that respondent's illegal conduct discloses a purpose to defeat self-organization among its employees, its entire course of conduct further presents a prompt and effective means of destroying self-organization among its employees Thus, as found above, immediately upon learning of the union activities of its employees through surveillance, respondent sought to coerce them by summoning them on toinpany property during working hours and revealing to them that it had engaged in surveillance of the Union's place of assembly, by warning that adherence to the Union would result in economic hard- ship, by requesting the postponement of a union meeting, by announcing a wage increase, by urging that the employees not join the Union. and by suggesting the possible formation of an independent union after the employees had already in- dicated their choice of the Union. As a result, respondent was successful in inducing a number of employees to attempt withdrawal from the Union This unlawful conduct was violative of Section 8 (1) of the Act, totally apart from respondent's subsequent refusal to bargain with the Union on September 27, 1945, and thereafter. Because of respondent's unlawful conduct and its underlying purpose, the un- dersigned is convinced that the unfair labor practices heretofore found are per- suasively related to the other unfair labor practices proscribed by the Act and that danger of their commission in the future is to be anticipated from respondent's conduct in the past." Unless the order is co-extensive with the threat, the preventive purpose of the Act will be thwarted. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens •and obstructs commerce and thus effectuate the policies of the Act, the under- signed will recommend that respondent cease and desist from in any manner in- fringing upon the rights guaranteed in Section 7 of the Act. In addition, having found that respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in the afore- said appropriate unit, the undersigned will recommend that respondent, upon request, bargain collectively with the Union. As noted above, respondent operates a glove factory and overall factory in one building which are on adjoining floors under separate immediate supervision Ta N. L. R. B. v. Empress Publishing Company, 312 U. S 426. 632148-46-vol. 67-64 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and with no interchange of personnel. The record does not disclose whether the overall employees are organized. The undersigned, nevertheless, will recommend that the notice appended to this Report be posted in the overall factory as well as the glove factory. This recommendation is predicated, primarily, upon the fact that both the overall and glove workers have a common employer and the same individual, Berges, who has been found to have demonstrated his oppo- sition to self-organization of the employees in violation of the Act, acts as superintendent over both factories, and also upon the fact that the two factories are in close physical proximity to each other. It would be unrealistic to assume, under these circumstances, that the unfair labor practices directed to the glove factory employees did not quickly become well known to the overall factory employees. It is evident therefore that the overall employees could not fail to become aware of respondent's opposition to self-organization, and it is in order to remove the effect of this deterrent that it is necessary that these employees be assured and notified of respondent's compliance with the Act. CONCLDsIoNs OF LAW 1. Upholsterers International Union of North America, Local 1860, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All employees of the respondent at its glove plant, excluding office, clerical, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise' effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Upholsterers International Union of North America, Local 1860, affiliated with the American Federation of Labor, was on September 27, 1945, and at all material times thereafter has been, the exclusive representative of all 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 Septmber 27, 1945, and at all times thereafter, to bargain collectively with Upholsterers International Union of North America, Local 1860, affiliated with the American Federation of Labor, as the exclusive representative of its employees in the aforesaid appropriate unit, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 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 Upon the basis of the above findings of fact and conclusions of law, the undersigned recommends that Schramm and Schmieg Company, Burlington, Iowa, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Upholsterers International Union of North America, Local 1860, SCHRAMM AND SCHMIEG COMPANY 995 affiliated with the American Federation of Labor, 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; (b) Refusing to bargain collectively with Upholsterers International Union of North America, Local 1860, affiliated with the American Federation of Labor, as the exclusive representative of all its glove plant employees, excluding office, clerical and supervisory employees 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Upholsterers International Union of North America, Local 1860, affiliated with the American Federation of Labor, as the exclusive representative of all its glove plant employees, excluding office, clerical, and supervisory employees, with respect to rates of pay, wages, hours, or other conditions of employment and if an understanding is reached, embody such understanding in a signed agreement ; (b) Post at its glove and overall plants at Burlington, Iowa, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by respondent's representative, be posted by respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by respondent to insure that said notices are not altered, defaced, or covered by other material; (c) Notify the Regional Director for the Eighteenth Region in writing, within ten (10) days from the date of receipt of this Intermediate Report, what steps respondent has taken to comply herewith It is further recommended that unless on or before ten (10) days from the date of receipt of this Intermediate Report respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring respondent to take the aforesaid action. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C , an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report 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 four copies of a brief in support thereof. Immediately upon the filing of such statement of ex- ceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefore must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. MARTIN S. BENNETT, Trial Examiner. Dated February 8, 1946. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization to form labor organizations, to join or assist Upholsterers International Union of North America, Local 1860, A. F. of L., 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. All our employees are free to become or remain members of this union, or any other labor organization. We will bargain collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is : All glove plant employees, excluding office, clerical, and supervisory em- ployees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. SCHRAMM AND SCHMIEO COMPANY Dated ----------------------- By ------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.