George C. Knight Co.

1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD GEORGE C. KNIGHT COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 163 (UAW-CIO) lj`EORGE C. KNIGHT COMPANY and MARGARET RUSHFORD. Cases Nos. 7- CA-601 and 7-CA-601. February 10, 1953 Decision and Order On June 18, 1952, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 exceptions and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the Supplementary Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby accepts the find- ings, conclusions, and recommendations of the Trial Examiner. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that George C. Knight Company, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with the Union. (b) Discouraging membership in the Union, or in any other labor organization of its employees, by discriminatorily discharging or refus- ing to reinstate any of its employees, by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8 (a) (3) of the Act. (c) Interrogating its employees concerning their union membership, meetings, and activities; warning its employees that their conditions of employment would be less favorable if the Union succeeded in organizing them; encouraging and assisting employees to form and to 102 NLRB No. 117. GEORGE C. KNIGHT COMPANY 1199 engage in activities on behalf of the employees' committee; seeking employee assistance to cause employees to withdraw their support from, and to vote against, the Union in the election ; encouraging and assisting the circulation of the employee petition to dispose of outside representation, and promising to change and changing the working conditions of employees because of signing said petition ; prohibiting discussions by employees on behalf of the Union and prohibiting the wearing of union insignia; forcibly removing union insignia from its employees; threatening to discharge employees because of the wearing of union insignia, because of their discussions and other activities on behalf of the Union, and because of their distribution of union mem- bership cards. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 163 (UAW-CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) 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 the Union as the exclu- sive representative of its employees in the appropriate unit. (b) Offer to Margaret Rushford immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered by payment to her of a sum of money equal to the amount that she normally would have earned as wages from the date of such discrimination to the date of the offer of reinstatement, less her net earnings during said period (Crossett Lum- ber Company, 8 NLRB 440, 497-98), said back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (c) Post at its plant at Detroit, Michigan, copies of the notice attached to the Intermediate Report and marked "Appendix A." 1 1 This notice, however, shall be, and it hereby is, amended by striking from line 2 thereof the words "The recommendations of Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being 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 any other material. (d) Notify the Regional Director for the Seventh Region in writing within ten (10) days from the date of this Order what steps Respondent has taken to comply herewith. Intermediate Report and Recommended Order STATEMENT OF THE CASE These proceedings, brought under Section 10 (b) of the National Labor Rela- tions Act, as amended (61 Stat. 136), and consolidated by order of the Regional Director for the Seventh Region, were heard in Detroit, Michigan, on March 31 and April 1-4, 1952, pursuant to due notice to all parties. The consolidated complaint, issued on March 7, 1952, by the General Counsel of the National Labor Relations Board,' and based on charges duly filed and served, alleged in substance that Respondent had engaged in unfair labor practices proscribed by Section 8 (a) (1), (3), and (5) of the Act by (a) discharging discriminatorily Margaret Rushford on February 21, 1951, and thereafter refusing to reinstate her; (b) tefusing at all tines since February 26, 1951, to bargain with the Union, which represented a majority of the employees in an appropriate unit, and which on May 15, 1951, was certified by the Regional Director as the exclusive representa- tive of Respondent's employees in said unit; and (c) engaging, on and after February 14, 1951, in other specified acts of interference, restraint, and coercion. By its answer filed March 18, 1952, Respondent denied the commission of unfair labor practices as alleged. It admitted the discharge of Rushford but pleaded that the discharge was because of inefficiency, inattention to duties, and other misconduct. It admitted its refusal to bargain with the Union, based on its belief that the Union did not represent a majority of the employees, because, among other things, Respondent on April 19, 1951, had been served with a petition, signed by an overwhelming majority of its employees, which in effect repudiated the Union. All parties were represented at the hearing by counsel or by representatives and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions. An oral argument was made by the General Counsel. Respondent filed a brief. Various motions were made and disposed of during the hearing. Ruling was reserved on Respondent's motion to strike all testimony of conversations between employees, not in the presence of any of Respondent's supervisors, which related to the circulation and signing of the empolyee petition referred to in Respondent' s answer. That motion is hereby denied. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: 1 The General Counsel and his representative at the hearing are referred to herein as the General Counsel , and the National Labor Relations Board as the Board . The above-named Company is referred to as Respondent , and the charging union , above named , as the Union. GEORGE C . KNIGHT COMPANY 1201 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Michigan corporation with its principal office and plant at Detroit where it is engaged in the manufacture of automobile accessories. Dur- ing the year 1951 Respondent purchased raw materials valued in excess of $200,000, more than half of which were from outside the State of Michigan. During the same period, Respondent's sales exceeded $250,000, of which more than $50,000 were to extrastate points. Respondent also sold more than $150,000 of its products to Michigan manufacturers of automobiles who incorporated said products into other products. Each of said manufacturers in turn shipped annually to points outside the State products valued in excess of $25,000. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization which admits to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The evidence 2 1. Introduction ; synopsis of main events and issues Respondent normally employed approximately 60 employees. Its managerial and supervisory staff consisted of George 0. Knight, president ; M. L. Marx, vice-president ; Harry A. Solomon, secretary-treasurer ; Carlton J. Koonter, plant manager ; and Arthur E. McClelland, Donald Carmichael, and Frank Tabor, foremen! There was no prior history of collective bargaining and no evidence of organi- zational activities prior to February 1951.' As a result of calls or visits from one or more employees, Leo D. Shaffer, president of Local 163, made a leaflet dis- tribution at Respondent's plant on February 14. The following day Koonter made a speech to all employees which the General Counsel contended was coercive. Evidence was also offered that Koonter, Knight, McClelland, Tabor, and Carmichael thereafter made various statements claimed to be coercive. On February 21 Respondent discharged Margaret Rushford. Shaffer sought her reinstatement during a conference with Marx the same day, and when his re- quest was refused, Shaffer distributed a second leaflet outside the plant. On February 24 the union members voted to strike unless the Union were granted recognition and unless Rushford were reinstated. On February 26, Thomas Canter, international representative of the Union, called Marx, claimed a majority representation, and requested a meeting. When Marx refused, the Union called a strike which began the next morning. Un- successful negotiations were held on the 27th and 28th, looking to the signing of an interim agreement and the settlement of the strike. Respondent shut down the plant at the end of the day shift on the 28th. The strike continued until March 16 when it was terminated as a result of a temporary injunction issued in a State court action brought by Respondent. Respondent thereafter recalled all its employees to work. 2 In making the findings herein , the Examiner has considered and weighed the entire evidence . It would needlessly burden this report to discuss all the evidence on disputed points Such testimony or other evidence as is in conflict with these findings and is not specifically discussed is not credited. 8 Near the end of the hearing Respondent abandoned its contention that Tabor was not a supervisor during all pertinent periods. Evidence adduced up to that point had conclu- sively established his status as a supervisor. 4 All events herein occurred in 1951 unless otherwise stated. 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The injunction was conditioned in part on Respondent filing a representation petition with the Board . Respondent complied on March 21 and the election was held by consent on March 28. The result , by virtue of three challenged bal- lots, was inconclusive. Respondent also filed , on April 4 , objections to the con- duct of the election . On May 15 the Regional Director issued his report, dis- posing of the objections and challenges , and concluded with the formal certifica- tion of the Union. In the meantime , sometime prior to April 19, an employee petition was circu- lated in the plant. and was signed by 47 employees ( including Tabor ). On May 23 the Union made a formal request to bargain , based on the certification to which Respondent replied on May 28, that it had submitted to its attorney legal questions raised by certain events ( i. P., the petition ) which had occurred after the election. Also on May 23 Respondent filed with the Regional Director a second representation petition , which was dismissed on June 4 on the ground that the certification was a bar . On June 12 Respondent sought review of the Regional Director's ruling, but the Board , on June 28, sustained the Regional Director. In May the Union began procuring signatures to new membership and authorization cards from many of the employees . On October 17 and on February 28, 1952, the Union renewed in writing its demand for recognition and bargain- ing, but Respondent refused to accede. During the hearing on April 4, Canter made a final oral demand on Respondent for recognition of the Union as the bargaining agent of Respondent 's employees, based on the new membership cards, but Respondent did not respond. The main issues raised by the pleadings and litigated at the hearing were whether the discharge of Rushford was discriminatory , whether the employee petition excused Respondent's refusal to bargain, and whether and to what extent Koonter 's speech and other statements attributed to him, Tabor , McCel- land, Carmichael , and Knight were coercive. 2. The Koonter speech On February 15 (the day following the first leaflet distribution ) Koonter assembled all of the employees and made a speech which the General Counsel contends constituted in its entirety interference and restraint of the employees in engaging in concerted activities . Twelve witnesses were called by the General Counsel on the content of the speech and three ( including Koonter) by Respondent. The testimony of the General Counsel's witnesses was mutually corroborative in the main , and the following summary represents a synthesis of their testimony 6 Koonter began by referring to the presence of "visitors " the preceding day; stated he did not know whether they came of their own accord or were invited ; referred to the earlier harmonious relationship existing in the plant and to his surprise that there was any dissatisfaction ; and continued that if the em- ployees want a union e there was nothing Respondent could do about it: "We can get along with it or without it." He urged them to weigh the matter carefully before taking any outside influence. Rushford gave by far the fullest account of the speech, though her memory may under- standably have been refreshed by having heard the testimony of the General Counsel's prior witnesses a One main i ariation In the versions was whether Koonter referred to "union" or only to "outside representation " The preponderance of evidence clearly supports the findirg that he expressly referred to "union " The point is largely immaterial, since in the setting and context , it was clear that if Koonter specified "outside representation ," as lie claimed, he was referring to the Union and that his reference was so understood. GEORGE C. KNIGHT COMPANY 1203 Koonter then referred to certain privileges enjoyed by the employees, such as coffeemaking, and Respondent's lenience as to tardiness and rest periods, but stated that if the Union came in, such privileges would be ended, because Respondent intended in that case to follow the "Bible." Koonter also referred to Respondent's existing practice of shifting employees to other work when jobs ran out and stated that the advent of the Union would mean job classifications, which would mean, in turn, that employees would be sent home when their jobs ran out. He also referred to the fact that Respondent was getting in machinery for defense work ; that Respondent had intended to train the girls to run the precision machines ; but that if the Union came in, the Respondent would not do so, but would hire experienced operators rather than to spend the time and money (at union wages) to train girls presently employed. Koonter again stated that he was una\N are of "grievances" or "dissatisfaction," and suggested that if there were any, the employees should get together and appoint a committee to come to him, since his door was always open ; that there would be no dues for such a committee, and that he would work with such a committee in ironing out any grievances. Koonter also referred to his efforts to get a pay raise for the employees. Testifying as a witness, Koonter admitted that he referred to outside repre- sentation and admitted that he had referred to existing privileges. He denied that he had threatened to take any such privileges away, but admitted that he said, "If we had outside representation, we will write a Bible and we will abide by it to the last word." He testified that he was questioned whether a union would mean job classifications and that he expressed opposition to job classihca- tions on the ground that if a job ran out, Respondent would be unable to retain the employees in that job classification. He testified that he informed the em- ployees he saw no reason they could not be trained for the precision machines and denied that he stated that such training would depend upon the presence of outside representation. Koonter also admitted that he invited the employees to bring their grievances to him. He did not recall using the word "committee," but testified that he stated that if all the employees did not feel like coming to see him they should select some 4 or 5 representatives to come to him and submit their troubles. Koonter also testified that in response to a question concerning a wage increase, he informed the employees (as he had done on previous occasions) that Respond- ent was contemplating a petition to the Wage Stabilization Board for an increase and that he also informed them that Respondent was making arrangements for vacation pay. Respondent called, in corroboration of Koonter's testimony, Winifred Abel and Irene Champion. Neither was able to recall independently any portion of the speech. Abel's subsequent testimony on direct and cross-examination was con- flicting and contradictory on the question whether Koonter had made any ref- erence to outside representation, to existing privileges, and to vacation pay. Champion, similarly, testified on refreshment by leading questions, first denying and then admitting that Koonter had referred to outside representation. She testified also that Koonter then (as well as in earlier talks to the employees) referred to his efforts to get increased wages and vacation pay. The foregoing testimony afforded no substantial corroboration for Koonter. Indeed, Koonter's version is more easily reconcilable with that of the General Counsel's witnesses than it is with the testimony of Abel and Champion. The mutually corroborative testimony of the General Counsel' s witnesses is credited, and it is found that Koonter in fact made the statements substantially as sum- marized above. 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The employee committee ; the negotiations with it Georgia Johnson testified that a few minutes after the conclusion of Koonter's speech, she passed Koonter and Lillian Price and overheard Koonter say to Price, "You get the committee together." Mary Zimmerman and Joan Kurtycz testified that a few minutes after the speech they saw Koonter and Price talking together for a period estimated by Zimmerman at about 5 minutes and by Kurtycz as from 10 to 15. Koonter denied the incident; Price was not called as a witness. Koonter's denial is not credited in view of the mutually corroborative nature of the testimony of the General Counsel's witnesses. Rushford testified, without denial (and was corroborated by Alma Sigman), that the next day there was widespread discussion among the employees, pro and con, concerning the Union and the company-sponsored committee. Rushford testified further that in a gathering of some 25 girls in the washroom, Price took a position in favor of the committee suggested by the Company on the ground that the Company had promised to give the employees everything the Union would ; that Price later that day appointed as a committee herself and four other employees (Beatrice Stevens, Edna Huddleston, Helen Wilkins, and Cora Burks) ; and that Rushford later saw the committee go into McClelland's office. Price subsequently came out and had another employee type up a paper, but refused to let Rushford see it at the time. At the afternoon rest period, Price called the employees into McClelland's office and read to them a list of 4 demands which the committee proposed to make, 1 of which was for paid holidays, 1 for paid vacations, and 1 relating to wages. Price did not allow the employees to vote on the proposals. Shortly after that meeting, Koonter spoke to Price, in Rushford's presence, asking whether the girls had gotten their committee together. Price responded affirmatively. Koonter continued to talk with Price for some 45 minutes. Koonter's denial is not credited, since Rushford's testimony as to the length of the conversation was corroborated by Zimmerman, who had also timed it. Rushford testified further that on Monday, February 19, the committee went to the Company's offices upstairs at 2: 30 p. m., and remained until 4: 25; that when they came down they posted on the Company's bulletin board an agree- ment which was signed by four members of the committee but not by anyone for the Company. Among other things, the agreement provided for six paid holi- days, for vacations with pay, and foi certain wage increases.' The next day Rushford expressed her disapproval of the agreement to a num- ber of the girls and later attempted to give her opinion of it to a group of some 20 to 25 of them assembled in the washroom. She was prevented from doing so by laughter and jeering by some of the girls, including some of the members of the committee, 3 of whom were present. Vera Stanley testified, without denial, that on February 20 she and Price, acting as a committee for the employees, accompanied Knight and Solomon to the local offices of the Wage Stabilization Board, where approval was sought for a pay raise. They were informed that approval would have to be sought in Washington inasmuch as Respondent had increased wages 10 percent since January 1950. Knight stated that he would like to get approval as soon as possible. On the way back to the plant, Stanley stated to Price that she would inform the girls on the afternoon shift what had occurred. Knight told Stanley 4 Koonter admitted that be was aware that a purported employee committee had posted on the bulletin board a bulletin respecting vacation and holiday pay, that such a bulletin could not have been posted without permission and without some understanding with the Company, and that, in fact, the employees were thereafter to get vacation and holiday pay. GEORGE C. KNIGHT COMPANY 1205 to request the employees to give him until Tuesday, as he was going to send a representative to Washington. The following day Koonter told the employees he was going to Washington as a representative of the Company concerning the wage increase. Koonter testified that he flew to Washington a few days after the Union's first circularization of the employees for the purpose of submitting to the Wage Stabilization Board an emergency request for an increase. 4. Rushford's discharge Margaret Rushford was employed on August 30, 1950. She was injured on the job on September 8 and was off for 5 or 6 weeks. She took an active in- terest in the organizational campaign from its inception and was particularly outspoken in opposition to the activities of the employee committee which was formed immediately after Koonter's speech. Shortly after the washroom incident on February 20, in which Rushford had attempted to speak in opposition to the agreement proposed by the employee committee, Carmichael assigned Rushford to work on a machine which was lo- cated away from other employees. She notified Carmichael when she finished that assignment and stated, "You know I am being taken out of circulation. Do I go back in circulation now or do I say in isolation?" Carmichael replied that lie would find out. He returned shortly and set up a machine at the same location for another job. Rushford completed that assignment near her quitting time. The next morning she waited for Carmichael and inquired whether she was to work in isolation again. He replied, "No, you go back." Being then without an assignment, Rushford went to the table at which enve- lopes were being filled, inquired what was being filled, and procured from the storeroom a box of 500 envelopes and a supply of screws and brackets with which to fill them.' Newell corroborated Rushford's testimony that Rushford pro- cured from the storeroom only a single box of 500 envelopes. Rushford testified that she "settled down to work" around 9 o'clock. Shortly after the 10 o'clock rest period Cora Burks, who was sealing the envelopes filled by Rushford, discovered that Rushford was not placing the proper contents in the envelopes. The specifications called for a bracket, 1 long set screw, and 2 short ones, but Rushford had put in a bracket and 2 long set screws and had omitted the short screws. Rushford verified her error and first reported it to Newell in the storeroom, who told Rushford to bring them in and she would straighten them out. Rushford then reported her error to McClelland and volunteered to correct it after her quitting time. McClelland stated that he would come out in a few minutes. Rushford and Sigman testified that when lie did so he inquired what was wrong, and Rushford then again explained her error. McClelland stated that if there had not been so much union talk, the error would not have happened. They also testified that McClelland swore on the occasion. A few minutes later, McClelland returned and directed Rushford to come into his office. Rushford testified that McClelland there rejected her offer to correct her mistake (which she repeated) and that he discharged her. When Rushford protested her discharge on the ground that it was for her first mis- 9 Rushford testified that it was customary for employees who were temporarily left without a definite assignment to fill envelopes or to find other work to do. The storeroom from which Rushford obtained the envelopes and other supplies was supervised by Inez Newell, commonly referred to in the record as "Susie." From time to time, stocks of filled envelopes were placed in the storeroom and later withdrawn as needed to fill orders, while at other times the envelopes passed immediately to the produc- tion line and were placed in cartons for immediate shipment. 250983-vol 102-53 77 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take, McClelland replied, "That has nothing to do with it. This damn union talk burns me up. I am going to get rid of it if I have to fire every women here and hire all new girls." Shortly after her discharge, Rushford appealed to Koonter, claiming that she had been discharged on account of her union activities. Koonter denied her charge and refused to revoke McClelland's action. Rushford immediately reported her discharge to Shaffer, who conferred with Marx the same afternoon concerning it. Shaffer contended Rusliford had been discharged because of her union activities. Marx denied it, and assigned as the cause Rushford's "costly mistake." Newell and Sigman corroborated Rushford's testimony that she had worked only about an hour in filling the envelopes on the morning in question, and Newell also corroborated Rushford's testimony as to the number misfilled, i. e., not more than 400. Newell also testified that Rushford brought the misfilled envelopes into the storeroom ; that they remained there until she (Newell) cor- rected them the next day; and that none of Respondent's supervisors looked at them or gave her any instructions concerning them. Though Respondent emphasized the simplicity of the operation, it was clear from the evidence that it would have been equally as simple to check the op- eration. There is not a syllable in the record to justify the wild assertion made by Solomon that Rushford was committing sabotage. The record is replete with evidence that there were many other instances of errors similar to Rush- ford's both before and after her discharge, but that Respondent made no in- vestigation of them, no attempt to fix responsibility therefor, and sought to impose no disciplinary action. McClelland and Koonter testified that Rushford, from the beginning of her employment, habitually left her work station, wandered around the plant, and engaged in conversations with other employees. McClelland testified that on such occasions he simply directed her to return to her job and that she com- plied. McClelland and Koonter also testified that when Rushford was a new employee, Koonter had warned her of the danger of turning and talking to other employees while operating certain presses, and that Rushford's disregard of that warning had resulted directly in her injury. Their testimony, though disputed by Rushford, is accepted as establishing that Respondent, from the beginning of Rushford's employment, considered her to be both inefficient and talkative. Koonter testified that when he entered the plant between 8: 30 and 9 a. in. on the 21st, he saw Rushford in a conversation with 3 or 4 other girls and that he directed McClelland to put a stop to her roaming around the plant and carrying on conversations during worktime. McClelland testified, however, that he did nothing about it and let the incident pass. McClelland testified that he could not recall whether it was Rushford or some other employee who first reported the error to him, that he found out the nature of the error at the table, and that he stated there was no excuse for it and that "if there hadn't been so much talk and wandering around, it wouldn't have hap- pened." He denied that he referred to union talk or that he swore. Burks also denied that McClelland swore, and testified that he only directed Rushford to come to his office. Burks obviously confused that incident with McClelland's later visit to the table when he ordered Rushford to his office. McClelland testified further that he accepted Rushford's admission of her mistake, without checking on its extent at the time, that he then and there decided to discharge her, and that he directed her to come to his office. There, he testified, he repeated the statement he had made at the table, and continued that he would have to discharge her because "You put me in an embarrassing GEORGE C. KNIGHT COMPANY 1207 position. These jobs, part of them are shipped out and we don't know where we are at." He denied Rushford's testimony that he referred to union talk and to discharging employees on account of it. Though McClelland had assigned to Rushford the serious consequences of her error, i. e., the actual shipment of some of the envelopes, he testified on cross- examination that he started his investigation of the extent of her error imme- diately after her discharge, and that it was then he determined that some of the misfilled envelopes had been shipped out. His testimony on that score was con- fused and inconsistent, was rebutted by Newell's testimony as to her own cor- rection of Rushford's error, and was impeached by McClelland's affidavit made during the General Counsel's investigation. McClelland had then averred that "the whole day went by before I found out the mistake she had made." And though averring that he had discharged Rushford "because of her having made a mistake that was very costly," the affidavit continued that McClelland had been told by Marx that the Company lost a customer as a result of her mistake. McClelland's testimony is, therefore, not credited as to his conversations with Rushford surrounding her discharge nor as to his alleged investigation. Marx testified that for several months Respondent had been receiving com- plaints from customers as to errors in the filling of envelopes ; that the Spiegel Corporation had made such complaints for a period of 2 months ; and that Respondent lost their business the latter part of February because of such errors. Marx, testified that he attributed the loss of Spiegel's business to Rushford's error, because at that time Respondent had made a substantial shipment to Spiegel in which all the envelopes had been misfilled. Marx admitted, however, that Spiegel had not canceled out on or before the 21st; that he was unable to specify whether the alleged shipment had been made before or after the 21st; that he had no knowledge that any of the envelopes misfilled by Rushford on the 21st were shipped to Spiegel ; and that conceivably the loss of Spiegel's business was attributable to other errors not made by Rushford. Indeed, the testimony of Newell, Rushford, and Burks established that Sigman and Krueger were engaged in filling the same type of envelope as Rushford on the morning in question. In brief, Respondent offered no credible evidence that any of Rushford's mis- filled envelopes had been shipped out, that her error had caused the loss of a customer, or that it had injurious consequences of any sort. 5. Miscellaneous incidents , interrogation, etc., prior to strike Georgia Johnson ( Rushford's daughter ) testified that on February 26, the day before the strike, she was discussing the Union while working with the girl who sat next to her and that Tabor came over and ordered her not "to talk union" during working hours. ' During the rest period , Tabor observed Johnson passing out union cards and reprimanded her for it. When she pointed out that she was doing so on her own time, Tabor replied, "Well , when the men in the front office find out union cards are being passed out, I am going to have to tell him who passed them out." Still later the same day, having heard her mother 's name mentioned in a conversation between Tabor, Eleanor Gibson , and Matt Pelto, Johnson joined the group. Tabor made a statement to the effect that several persons were t' be fired. Johnson inquired whether her name was at the head of the list, and Tabor affirmed that it was. When she inquired the reason , Tabor replied that 9 Johnson testified that there was a verbal rule against discussion of the Union during working hours , though not against discussion of other subjects. 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was "for what you did tonight" [i. e., passing out union cards], and added, "Well, you know your mother has said a few things the Company doesn't like and you are your mother's daughter. Don't make a mistake or you will be fired." Eleanor Gibson and Elaine Barnes corroborated Johnson 's testimony as to Tabor's warning about the passing out of union cards, testifying that Tabor stated he could fire her for passing them out on company time. Gibson also corroborated Johnson's testimony with reference to Tabor's statements made in the presence of herself and Matt Pelto. Gibson also testified that on one occa- sion Tabor had told her that "Margaret Rushford had gotten fired because she was doing too much Union talking and that Georgia [Johnson] could do it and get fired too if she kept it up." Gibson also testified that on another occasion before the strike Tabor interrogated Johnson concerning whether she had signed a union card. Gibson and Barnes testified to another occasion on which Tabor had told Gibson that if she was not such a good press operator he could fire her because she was doing too much union talk. Barnes fixed the incident as having occurred before the strike, whereas Gibson fixed it as sometime in March but before the election . Barnes also testified that shortly after Koonter 's speech and after she signed a union card , Tabor interrogated her as to whether she was for the union. Vera Stanley testified that on some occasion before the strike and at a time she was wearing a CIO button, Tabor said to her , "You think that pin means something to you. You think that pin means that you can go down to the first aid room and lie down about an hour or two." The same day, about 3 minutes prior to lunchtime, Stanley left her place of work to wash up, as she customarily did. Tabor, observing her, stated that if she left then she could walk out of the door and go home. She stayed at her post until the lunch hour began. Stanley testified that she then went out to a restaurant to lunch and that Tabor came over and joined her and began talking about the Union. He stated that Georgia Johnson was trying to get the girls to join the Union because of what the Company had done to her mother , and that she would not be there for long after her mother . Stanley reminded Tabor that when she returned from the Wage Stabilization Board meeting she had talked to the girls about giving the Company until Tuesday so that they could send a representative to Washington , and that Tabor had gone around the plant and told the girls that if they were to get a union in there, they had better do so by Friday. Tabor also referred to the fact that Stanley was all alone (she was an immi- grant from Ireland ), that he knew how she needed her job, and that it was silly of her to get herself mixed up with the Union. Stanley testified that after she returned to the plant and joined the other employees , Tabor walked up and said, "You want me to show you what I think of that pin," and that he pulled the pin off her blouse and threw it on the floor. Stanley testified that she felt that Tabor was more or less joking about the matter at the time. Tabor testified in denial or in attempted explanation of most of the foregoing incidents . He admitted, for example, having called down some of the girls for talking union and for passing out union cards during worktime. He admitted making a remark to Pelto concerning discharging Johnson for talking , but denied lie made any reference to the Union. He testified that other references to the Union were made or volunteered by other employees . He contended that other statements and the incidents involving union pins were not in a serious context. Thus, he admitted pulling the pin from Stanley 's blouse but claimed that he was engaging in horseplay. Tabor's testimony , which Respondent did not support by other witnesses, is plainly insufficient to overcome the testimony of the several witnesses for the GEORGE C. KNIGHT COMPANY 1209 General Counsel, which, because of the number and similarity of the incidents involved, may be regarded as mutually corroborative. It is, therefore, con- cluded and found that the incidents occurred substantially as testified to by the General Counsel's witnesses. The number and character of the incidents also refutes Respondent's contention that Tabor's acts and statements were with- out coercive effect because in some instances he was joking and in others was engaged in friendly conversations with the employees involved. That Tabor's general disposition was not one of friendliness or levity was conclusively estab- lished by the frequency of his threats to discharge or discipline the employees under his supervision. 6. The strike ; negotiations for settlement The Union called a meeting for Saturday, February 24, as a result of calls from various employees expressing concern over Rushford's discharge, the activi- ties of the antiunion committee, and alleged intimidation of employees. Those matters were the subject of a general discussion at the meeting, which resulted in a vote to call a strike unless Respondent agreed to recognize the Union and to reinstate Rushford. On Monday Canter called Marx and informed him that the Union had a majority of the employees signed up and requested a conference to discuss a consent ellection.Y° Marx stated that he would be unable to meet before Friday because of the absence of other officials of the Company. Canter informed Marx of the union meeting, of the unrest among the employees, and stated that the Union would not be responsible for any action taken by the employees prior to a conference. The Union, through Shaffer and a committee of employees (Sigman, Krueger, Stanley, and Pelto), thereupon called a strike for the next day. From 30 to 40 employees joined the picket line during the day shift and from 15 to 20 employ- ees went through it to work. The night shift, when it reported, joined the picket line. In the afternoon, Solomon sought out Shaffer on the picket line and requested him to come in and discuss the "problem." Solomon inquired what the Union wanted and Shaffer replied that it wanted recognition and Rushford's reinstate- ment. Solomon inquired what kind of contract the Union wanted. Shaffer replied at first it wanted a letter recognizing the Union as the bargaining agent of the employees, and he explained generally what would be contained in an interim agreement. Solomon then stated that if Shaffer would draw up such an interim agreement and bring it to the plant he would sign it. Shaffer called Canter on the telephone, in Solomon's presence, and informed him that the Com- pany was ready to sign an interim agreement. On Canter's statement that it would take some time to prepare the agreement and get it to the plant, Solomon agreed to remain until it was brought out there. Around 7 p. in. Canter arrived with a proposed agreement which provided, among other things, for recognition of the Union as the representative of the employees, for entry upon negotiations for a collective agreement, for interim agreement upon certain terms and conditions of employment, and for with- drawal of the picket line upon the signing of the agreement. Canter and Shaffer testified that after Solomon looked over the agreement he stated he saw no ob- jection to it and no reason why it should not be signed, but that he could not i° Marx testified to two meetings with Shaffer, but to no telephone conversation with Canter. However, he confused the chronology and the events of the two alleged meetings with Shaffer with the details of the telephone conversation which Canter testified to. The testimony of Shaffer and Canter is credited as to their respective conversations with Marx. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign it alone but would have to talk with some of Respondent's other officers. In their presence, Solomon called Marx at his home and informed him the Union had presented an interim agreement with a recognition clause, that he could not sign it alone, and that he wanted Marx to come on over and "we will get this thing signed and we will get this thing settled." When Marx did not agree to come to the plant, Solomon left the conference and went to Marx's home, but returned around 10 p. in. and resumed his conference with the Union's representatives. Solomon again stated that he saw nothing wrong with the agreement, but requested a meeting the next day with other officers of the Company. Solomon's account of the foregoing conferences differed from Canter's and Shaffer's mainly in his contention that he raised the question of a possible vio- lation of the Taft-Hartley Act and of the Union's majority, and that he did not agree to sign the agreement but only to submit it. He admitted, however, that he informed Marx on the telephone that he saw no particular objection to the contract; that his only concern was to get the "mess" settled; and that Marx suggested the possibility of the Taft-Hartley violation. Solomon testified that his own suggestion of a Taft-Hartley violation was related to the question whether the Union represented a majority of the employees and whether Re- spondent could properly sign a recognition agreement "without having assur- ance or an election" to determine the question. Solomon testified, however, that on the majority question the union representatives felt very sure of their position and that : They had a bunch of cards. I didn't question whether or not the cards were right or were not right. I just questioned the fact whether or not we were placing the company in a position of submitting ourselves to liability under the Act. . . . He had a bundle of [cards]. I didn't count them and we didn't discuss it at all. Canter, Shaffer, and the employee committee met the next morning with Solo- man, Marx, and Knight. Canter and Shaffer testified that Respondent's repre- sentatives expressed no objection to the agreement as such, and that their only concern was that the signing of it would not violate the Taft-Hartley Act. Canter suggested that they check with the local office of the Board or with the Union's attorney, Cranefield, but they stated their desire to take the question up with their own attorney. Marx's testimony is not in substantial conflict with the foregoing, but he based Respondent's suggestion of a possible Taft-Hartley violation on the fact that acceptance of the contract might injure the rights of certain employees who had reported that they were not interested in any union. Solomon car- ried Respondent's rationalization further, though he confused the happenings at the morning and afternoon sessions on that day. He testified that reports had come to Respondent that many employees who had signed union cards had not done so voluntarily, and Respondent felt that for it to sign a contract with- out a free election would be to deprive the employees of their rights under the Act 11 Canter testified that at the conclusion of the morning meeting, Solomon agreed to meet again at 4 p. in., by which time Respondent would have had its attorney examine the agreement; that around 3: 30 Solomon spoke with him on the picket line, informing him that Respondent had had the agreement "Respondent offered no direct testimony or other evidence that any employee who had signed a union card had not done so voluntarily. GEORGE C. KNIGHT COMPANY 1211 checked, that there was nothing wrong with it, and that he saw no reason why they could not get it signed that afternoon . Solomon did not deny that testimony. When the employee committee entered Knight's offices at 4 p . in., Knight at first ordered them out , denying knowledge of the meeting . Canter referred to the arrangements previously made with Solomon , and upon Solomon's con- firmation a short meeting was held . Also present at that meeting was Bard Young, regional representative of the International Union . Canter and Shaffer testified that there was no discussion of the contract, but that Respondent's representatives simply refused to sign it ; that Young referred to the fact that there were people working in the plant and that he did not want any trouble on the picket line ; and that Solomon stated he would close the plant down until the matter was settled. Solomon testified that his order to close the plant down was a result of the belligerent attitude and threats expressed by Young upon his entry into the plant ; that because of them he requested Young to assure Respondent that the employees would be given safe passage out of the plant ; that Young agreed that no one would be harmed going out, but added that "if anybody attempts to come back in here, somebody is going to get hurt." There were no further negotiations and the plant remained closed until after the entry of the injunction. 7. The injunction ; preelection incidents On March 16 the circuit court of Oakland County issued an injunction against the Union which broadly enjoined all picketing, as well as various forms of interference with Respondent 's business and with Respondent's employees in the performance of their work. However, the injunction order was subject to the following conditions : This injunction shall issue and remain in force on the express condition that on or before the 22nd day of March, 1951, the plaintiff shall execute and file with the National Labor Relations Board a petition in manner and form prescribed by said Board for investigation of the question of repre- sentation of plaintiff's employees and for the certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act. Upon the failure of plaintiff so to do, such failure may be brought to the attention of this Court on the 24th day of March, 1951 at the opening of Court. In the meantime, and pending action by said Board, upon a determina- tion of said petition the corporate plaintiff, including its officers, executives and supervisory employees and the defendant and its officers and business agents are commanded to refrain and desist from violation of any of the provisions of the National Labor Relations Act. This said injunction, in its entirety, is issued upon the further condition, and counsel for both parties have agreed thereto in open court, that both parties file with the National Labor Relations Board their consent to the conduct of an election among plaintiff's employees by the National Labor Relations Board in which election those hourly rated employees , and only those hourly rated employees, shall be eligible to vote who were on the payroll of the company on the 20th day of February, 1951. Pursuant to the foregoing conditions, Respondent filed , on March 21, its petition in Case No . 7-RM-69, and contemporaneously Respondent and the Union executed an agreement for a consent election to be held on March 28. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following the entry of the injunction Respondent, by telegram and letter, notified all of its employees who were on the payroll on February 26, to return to work, and operations were resumed on March 17. Respondent discharged none of the strikers and replaced none of them during the strike. When the employees on the afternoon shift reported after the strike, Elaine Barnes testifed that Koonter spoke to a group of them after they had punched in, stating, "This isn't Russia, no organization is going to come in and run our Company." Eleanor Gibson testified that on an occasion before the election, Tabor in a "jolly mood" inquired if she was for the Union. When she replied she was not, Tabor suggested, "Eleanor, why don't you go around and get the girls and talk to them and tell them not to vote for the union." When Gibson refused, Tabor continued, "Well you can sell them the idea." Gibson also testified that on another occasion before the election, Tabor spoke to a group of girls including herself, Stanley, Krueger, and Barnes who were wearing union badges, and stated that he would advise them not to wear those pins during working hours. Gibson also testified to a further conversation with Tabor before the election in which Tabor told her, "Eleanor, you know if you weren't such a good press operator, I would fire you because you are doing too much union talk." Elaine Barnes, who was present, corroborated Gibson's testi- mony as to the content of Tabor's statement, but fixed the incident as having occurred before the strike. Mary Wylychenko testified that before the election and at a time when she was wearing a union button, Tabor asked her if she was a union girl. She replied that he should know better than that, and Tabor continued, "A union never did anybody any good," and that the employees "would be better off stick- ing with the company." Ida Lundstrom testified that on the day of the election Knight addressed the employees on the day shift, a number of whom were wearing union insignia, and that he stated that the employees should be for the Company, not for the Union; that they should all stick together (with the Company) as they used to, as a happy family, and that if the Union got in it would not be the same, i. e., "Like we have got it now, we have got it good, and everybody gets along." 8. The election and its results ; the employee petition The election was held as scheduled on March 28. The tally of ballots showed that for 60 eligible voters, 55 ballots were cast, 27 for the union and 25 against, and that 3 ballots were challenged. On April 4 Respondent filed objections to the conduct of the election. Pursuant to the terms of the consent-election agreement, the Regional Director made an investigation of the objections and challenged ballots, and on May 15 issued his formal report in which he over- ruled the Respondent's objections to the conduct of the election, sustained the challenges to 2 ballots, and overruled the challenge on the third one. Finding, therefore, that the last ballot could not affect the results of the election, the report concluded with the formal certification of the Union as the exclusive bargaining representative of the employees. In the meantime, Marx testified that on or about April 19 he found on his desk a petition, signed by 47 employees (including Frank Tabor), which read as follows : To All The Girls d Borg/'s of Geo. C. Knight 4-19-51 We The Undersigned Are Taking Up This Petition, To Dispose Of Outside Representation. Since We Have Had No Results Up To Now-Let Us All Band Together In Common Interest. GEORGE C. KNIGHT COMPANY 1213 Marx testified that he made no inquiry as to the origin of the petition or as to the authenticity of the signatures, that he was very happy to get it, and that : I was gratified to think that they wanted some action, they wanted to do it themselves and they wanted the company to- TRIAL EXAMINER DOWNING : What did you think they wanted the Com- pany to do? THE WITNESS : To get them more money. TRIAL EXAMINER DOWNING : This says dispose of outside representation. THE WITNESS: I had nothing to do with that. TRIAL EXAMINER DOWNING: How would leaving this on your desk dispose of the outside representation? THE WITNESS : I don't believe it did. Marx testified that he called his attorney, reported receipt of the petition, and forwarded it to his attorney. He testified that he later discussed the peti- tion with McClelland and Koonter, who stated they had no knowledge of the circulation.12 Although Marx noted Tabor's signature on the petition, he made no inquiry of Tabor concerning it. In fact, Respondent offered no evidence as to the origin, the originators, or as to the circulation of the petition. However, those matters were fully ex- plored by the General Counsel on rebuttal by several witnesses whose testimony was in the main undisputed. It is unnecessary to summarize that testimony in detail. In brief, it establishes the following facts : The petition was circulated openly in the plant during working time and over a period of from 1 to 2 weeks. Most of the witnesses identified Irene Champion as the circulator, but others were solicited by Flo Pullin, Helen Wilkins, Millie Cavanaugh, and Ruby Simo. Substantial periods of worktime were spent by the circulators in soliciting signatures. Some employees were solicited several times (up to a dozen), and in some cases individual solicitations consumed from 1 to 2 hours of worktime. Furthermore, Champion's absence from her own machine on several occasions prevented 7 or 8 other employees on her line from performing their own assignments, and they sat around and talked. None of Respondent's supervisors issued any reprimand or raised any question con- cerning the circulation of the petition or the absence from work or the periods of idleness resulting from the circulation. Inez Newell and Ida Lundstrom testified to an occasion when Koonter watched Champion circulating the petition and soliciting signatures thereon 13 Further knowledge by Respondent of the existence and circulation of the petition was established by Tabor's signing of it, and by the testimony of Elaine Barnes that Carmichael answered her complaint about an arduous assignment by suggesting that if she would sign the petition she would be taken off that job. Barnes signed the petition a few minutes later, and shortly afterwards Carmichael put her on a different job. The circulators usually represented the petition would result in the employees getting a pay raise and paid vacations, and in some instances they purported to quote Koonter or Marx or "the bosses" to that effect. Representations were also made that signing the petition would entitle the employee to go up to Marx's office when the rest of the signers did. n Koonter testified to the contrary that he had informed Marx that he had heard rumors concerning the petition but did not know its contents. 11 Koonter's denials are not credited . It is inconceivable, in view of the small size of the plant and the open and lengthy circulation of the petition, that Koonter could have escaped observing its circulation , particularly in view of its disruption of productive work. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kurtycz testified that one employee informed Champion in her presence that she planned to sign the petition and requested Champion to bring it to her. Champion went upstairs into the Company 's offices and returned after a few minutes with the petition. Kurtycz testified at that time there were 13 or 14 signatures on it, and that Champion thereafter took the petition back upstairs. Barnes' and Gibson testified that in soliciting their signatures Cavanaugh represented that Koonter had gone to Washington to get a raise for the em- ployees ; that when they expressed doubt and demanded proof, Cavanuagh stated that she could procure proof from the office upstairs . Cavanaugh there- upon went upstairs and returned in a few minutes with a receipted hotel bill of a Washington Hotel, a plane ticket stub, and-according to Barnes-a letter to Koonter to the effect that no raise could be given because wages were frozen as of January 19, 1950. Upon submission of this "proof," Barnes and Gibson signed the petition. 9. Subsequent events An adequate statement of the main events which followed the certification of the Union has been made in the synopsis (section 1, supra) and needs no ex- pansion. However, the General Counsel offered evidence of additional alleged incidents of interference (relevant also to the alleged continuing refusal to bar- gain ) which will be summarized. Ida Lundstrom testified that some time after the election , Koonter informed some of the girls during the rest period that if the Union was going to give the employees vacations with pay, the Company would start to do so also, and that the employees would get paid vacations and paid holidays. Although Lund- strom fixed Koonter's statement, indefinitely , as having occurred in the fall, other evidence (including Koonter's testimony ; see footnote 7, supra) establishes that the paid-holiday plan became effective certainly as early as May 30, since that was the first paid holiday which the employees received. Lundstrom also testified that a day or so after she attended a union meeting in September, Koonter questioned her as to her attendance at that meeting, as to discussions there concerning a pay raise , and as to the identity of the girls who may have contacted the Union regarding his offers to get a raise for the employees. On cross-examination , Lundstrom testified that Koonter also stated that Respondent was trying to get a raise for the employees and was try- ing to get the Union's cooperation. Inez Newell testified that sometime in May Koonter called her to his office and reprimanded her for "discriminating" against a colored girl in the shop. Newell requested the presence of a committeewoman , but Koonter refused, stating that the Union was not in and there was no committeewoman , and that "the union wasn't coming into the shop." B. Concluding findings Viewed in its entirety , the evidence summarized above establishes beyond question that upon the inception of organizational activities among its em- ployees Respondent embarked immediately upon a course of conduct which was designed to impede and restrain the organizing campaign and to forestall union representation , if possible, by interposing the employee committee , the creature of its own choice and suggestion. No one of the specific acts or statements here- inafter found to constitute an unfair labor practice may, therefore , be consid- ered as having occurred in isolation or as unrelated to others , since together they make up, and together they reveal unmistakably , Respondent's pattern of con- duct in waging a countercampaign to defeat the organization of its employees. GEORGE C. KNIGHT COMPANY 1215 It is appropriate, nonetheless, to make findings as to the specific incidents which comprise the total congeries of facts ; and such findings will be arranged according to the particular type of unfair labor practice which the various acts and incidents are herein found to constitute. 1. Interference, restraint, and coercion Koonter's speech constituted, of course, the opening gun in Respondent's antiunion campaign. Though portions of it were clearly privileged as free speech (cf. Section 8 (c) ), others were just as clearly coercive. Thus, Koonter threatened that the advent of the Union would entail the loss of existing privileges and that certain conditions of employment would be affected and would be less favorable. Koonter also proposed that the employees appoint a committee to represent them concerning their dissatisfaction and their grievances, and promised to deal with such a committee. Indicating a possible area for such dealings, Koonter referred to his efforts to obtain a pay increase, paid holidays, and paid vacations for the employees. Koonter's speech bore Respondent the desired fruits. Antiunion employees immediately formed the committee which he had proposed, which Respondent encouraged and assisted and with which it immediately began dealing. The committee's demands included pay raises and vacation and holiday pay, and Koonter admitted that those concerning vacation and holiday pay were granted. To complete the forestalling of the Union, Respondent acted precipitately in attempting to procure, jointly with the employee committee, Wage Stabilization approval of the wage increase which had been agreed upon. It is, therefore, concluded and found that by Koonter's threats of loss of privileges and less favorable working conditions, by his encouragement of the formation of the employee committee, and by Respondent's subsequent assistance to and dealings with the committee, including the granting of benefits, Respondent engaged in interference, restraint, and coercion within the meaning of Section 8 (a) (1). Similarly violative of that section were the various instances of interroga- tion of employees concerning their union membership , union meetings, and union activities ; Koonter's statement that the Union would not come into the shop; McClelland's threats to discharge employees for discussing the Union; Tabor's warnings to employees not to talk about the Union and his threats to discharge them for so doing;" his warnings not to wear union insignia during worktime ; his forcible removal of union insignia from Stanley ; his threats to discharge employees for distributing union membership cards ; and his attempt to enlist Barnes' assistance to cause employees to withdraw their sup- port from and to vote against the Union in the election. Similarly coercive were Tabor's statement to Wylychenko that the employees "would be better off sticking with the Company" and Knight's statement on the day of the election that if the Union got in the employees would not have it so good. Those statements, though not so explicit as those in Koonter's speech, had the same purpose, i, e., to inform the employees that their working conditions would be less favorable if the Union succeeded in organizing the employees. Further interference, restraint, and coercion were reflected in Respondent's encouragement and assistance to the circulation of the employee petition in is Since there was no rule which forbade the discussion of other subjects during work- time, the attempted prohibition of prounion talk was obviously a discriminatory interfer- ence with the organizing campaign , particularly in view of Respondent 's encouragement of the employee committee and its failure to forbid similar discussions and activities favor- able to the latter. 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April, including Tabor's signing of it and Carmichael's act of promising to change and in effecting a change of Barnes' working conditions because of her signing the petition. 2. Discrimination No issue was raised by pleadings or evidence as to Respondent's knowledge of Rushford's union membership or activities. Nor could Respondent have escaped such knowledge in view of the small size of the plant and Rushford's activities and outspoken attitude, particularly in opposition to the employee committee." The underlying issue here presented is that common to many unfair labor prac- tice proceedings, i. e., whether Respondent's discharge of Rushford was due to her union membership and activities or was for the causes assigned by it. Since the burden of proving unlawful motivation rests on the General Counsel (Six- teenth Annual Report, National Labor Relations Board, p. 162), the evidence which supports his contentions will be first examined. Rushford's active and outspoken opposition to the employee committee has been adverted to. It is significant at the outset that immediately following Rushford's attempt to speak against the employee committee in the washroom on the 20th, Carmichael gave her an assignment which in effect isolated her from other em- ployees. The following morning, Koonter saw her in conversation with other employees and directed McClelland to put a stop to it Significantly, Koonter directed no action against the other participants to the conversation. McClel- land's first remark at the table was that the mistake would not have occurred if there had not been so much union talk, and later in discharging Rushford in his office, he stated that he intended to put an end to the union talk even if he had to fire all the employees. Those statements go far to establish that McClelland dis- charged Rushford not because of her admitted mistake, but to discourage pro- union talk and activities. That conclusion is confirmed by the findings in the preceding section regarding Respondent's course of antiunion conduct, and par- ticularly by the following facts : Though many similar errors were made before and after Rushford's discharge. no employee had been disciplined or discharged on account thereof. Gibson testi- fied that Tabor stated that Rushford had been discharged for doing too much union talk. Koonter at a later time characterized Rushford to Flood as an "agitator." Johnson testified that Tabor referred to her relationship to Rush- ford and warned her that she too would be discharged if she made a mistake. The foregoing evidence, in its cumulati,,e weight, is more than adequate to make out a prima facie case that Respondent's action in discharging Rushford was rooted in its desire to discourage her prounion activities and her anti- employee committee activities. Attention is accordingly turned to the question whether Respondent's evidence refutes the General Counsel's case and established Respondent's defenses that Rushford was discharged for a combination of causes. Law and on v. N. L. R. B., 192 F. 2d 236 (C. A. 10), citing Montgomery Ward & Co. v. N. L. R. B., 107 F. 2d 555,560 (C. A. 7) ; Sixteenth Annual Report, National Labor Relations Board, p. 162. Respondent pleaded that it discharged Rushford "solely for good cause, includ- ing inefficiency, inattention to duties, interference with work by other employees, and other misconduct justifying such discharge." At the hearing much of Re- spondent's evidence was directed to establishing that Rushford was discharged 15 Since that committee existed for the purpose of dealing with Respondent concerning grievances and certain terms and conditions of employment , it also constituted a "labor organization," see Section 2 (5). Therefore if Rushford's discharge were either to dis- courage membership in the Union or to encourage membership in the employee committee, it would be equally discriminatory. GEORGE C . KNIGHT COMPANY 1217 because her mistake was a costly one in that is caused the loss of a customer. The evidence supporting the more general claims will be first examined. That evidence shows that during the entice course of Rushford's employment, Rushford had engaged in what Respondent considered "unnecessary" talking to employees and wandering about the plant during working hours. However, Respondent had no rule against talking on the job unless it interfered with work or constituted a danger. Though Koonter testified that Rushford's injury re- sulted from her disregard of his warning not to talk to other employees while operating a press, he admitted that he did not thereafter warn Rushford about talking ; and McClelland testified that he never reprimanded Rushford for talk- ing but limited himself to directing her to return to her job when she wandered around during worktime. Though Respondent may, with some reason, have considered Rushford both talkative and inefficient, it is clear that prior to the organizational campaign it had considered her shortcomings as no more than foibles and of insufficient importance to warrant disciplinary measures or even a warning of such. Fur- thermore, in effecting the discharge, McClelland made no reference to Rusbford's earlier alleged misconduct. Under all the circumstances, it is therefore con- cluded and found that Respondent's evidence does not support its claim that Rushford's talkativeness or past inefficiency constituted any part of the cause of the discharge. The evidence also wholly fails to support Respondent's claim that it discharged Rushford because she made a costly mistake which caused the loss of a customer.18 First, if the customer had already been lost, as seems clearly indicated by Marx's claim to Shaffer on the afternoon of the 21st that Rushford had made a "costly mistake," that loss was clearly not due to Rushford's mistake. If the loss oc- curred later, that fact was unknown to Respondent at the time McClelland made the discharge. Indeed, Marx finally conceded that he was without knowledge that the Rushford envelopes had gone to Spiegel and conceded that the loss of the account may have been attributable to errors of others. Secondly, McClel- land admitted that his decision to discharge Rushford was reached upon her admission of her error. So far as he then knew, her error was without conse- quences,' since such investigation as he made followed later. As found above, McClelland's testimony that he informed Rushford that he had to let her go because some of the envelopes had been shipped out was false. It was plainly an attempt on his part to square the discharge with the information which he had received later from Marx. It is therefore clear from the evidence in its entirety, and it is hereby found, that McClelland's explanations and Respondent's defenses "had been contrived after the controversy had arisen." N. L. R. B. v. Brown Compwt.y, 184 F. 2d 829 (C. A. 2). Such explanations, instead of being an answer to the inferences naturally following from the sequence of events, only serve to confirm them. Ibid. What the evidence as a whole discloses is that Re- spondent was interested in stifling prounion talk and in advancing the eln- ployee committee ; that Rushford, who was outspokenly prounion and anti- committee, was an obvious target for disciplinary action ; and that the in- cident of her admitted mistake constituted an ostensible and readymade ex- cuse which Respondent seized upon to rid itself of an employee who openly 1U Respondent's efforts to establish that Rushford's error was accompanied by serious consequences were obviously because the evidence showed that it had imposed no disci- plinary sanction in the case of other frequent employee errors. "As indeed it was, since Newell herself corrected all of the envelopes which Rushford had misfilled. 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD opposed its campaign to forestall union organization by the interposition of the creature of its own choosing. It is, therefore, concluded and found that Respondent discharged Rushford for the purpose of discouraging membership in the Union and that Respondent thereby engaged in unfair labor practices proscribed by Section 8 (a) (3) and (1). 3. The refusal to bargain a. The appropriate unit All of Respondent 's production and maintenance employees, excluding office and clerical employees, professional employees , guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. b. Majority representation It is concluded and found, from stipulations and from excerpts of Respondent's records, that there were a total of 81 employees (including Rushford) in the aforesaid unit on February 26. Fifty of those employees, on or before that date, designated the Union as their collective -bargaining agency. Nine others made similar designations on February 27 and one more on February 28. It is there- fore found that as early as February 26 the Union enjoyed a majority repre- sentation within the unit. Respondent discharged none of the strikers , replaced none of them during the strike, and recalled all of them to work after the entry of the State court in- junction on March 16. From stipulations and from excerpts of Respondent's records it appeared, and is hereby found, that all except two of the employees who had signed union authorizations were Respondent's employees throughout the months of February and March . It is therefore concluded and found that the Union's majority representation , as established by the signed authorization cards, continued from February 26 to the election on March 28. The Regional Director's formal certification of the Union conclusively estab- lished the Union 's majority status subsequent to the election , unless it can be found, as contended by Respondent , that the employee petition of April 19, not only effected a loss of the Union's majority status but was also effective to nul- lify the certification of the Union . Since the latter question embodies Re- spondent's sole defense to its refusal to bargain at all times subsequent to the election, it will be resolved not as a majority question, but under the ensuing section hereof dealing with the merits of Respondent's defense of its refusal to bargain. c. The requests and the refusals to bargain A preliminary issue concerns the date of the Union's initial request to bargain. Contrary to the General Counsel's contention, the first request to bargain was not made on February 26, since Canter's request then related only to a consent election. However, the negotiations between Shaffer, Canter, and Solomon the following day, particularly relating to the execution of the proposed interim agreement, clearly constituted a request to bargain ; and it is so found. There is no issue on the record as to the dates of the subsequent requests to bargain. Respondent freely concedes that it refused to bargain with the Union. It justifies such refusal subsequent to the election by reliance on the employee petition. It defends its position during the earlier period on the following basis : GEORGE C. KNIGHT COMPANY 1219 Insofar as the period prior to the election is concerned , Respondent was under no legal obligation to recognize the union 's claim of a majority based solely on a display of membership cards, without an election . It (respond- ent) had no means of determining whether the cards represented the free, voluntary and uncoerced choice of the signers. That there was merit to these doubts was subsequently borne out by the fact that although the International representative, Mr. Canter, testified that between 40 and 46 (a figure later increased to 60 people) had signed authorization cards at the time of the strike, the certificate of the Board on the election showed only 27 votes for the union. Respondent wanted and received an order for an election from the state court. To this election counsel for the union con- sented, merging all prior debate on the subject of a majority in the election and thereafter in the employes' petition. Respondent is, of course, wholly wrong in its assumption that it could reject proof of a majority established by signed membership cards and demand an election. Cf. Rockwood Stove Works, 63 NLRB 1297, 1342-5; Stilley Plywood Co. Inc., 94 NLRB 932, 968. An election is only one of the methods by which a labor organization may establish the fact of its majority representation. A display of signed membership or authorization cards is not only an acceptable method but a traditional one.1B It is true that an employer who entertains a good-faith doubt of a union's majority is entitled to put it to proof thereof in a Board-conducted election (Joy Silk Mills Inc., 85 NLRB 1263, enfd. as mod. 185 F. 2d 732 (C. A. D. C.), cert. den. 341 U. S. 914) ; but Respondent's alleged doubts did not so qualify, since they were based solely on Respondent's claim that "it had no means of determining whether the cards represented the free, voluntary and uncoerced choice of the signers." Highland Park Mfg. Co., 84 NLRB 744, 747 (set aside on other grounds, 184 F. 2d 98). Furthermore, though Marx and Solomon had referred to alleged reports from employees that they had not freely signed union cards, Respondent made no attempt to support those claims or its alleged doubts by the testimony of a single employee signatory. Aside from the foregoing, it is settled law that an employer may not assert good-faith doubts of a union's majority to excuse a refusal to bargain while it is engaged upon a course of unfair labor practices designed to destroy such majority. The evidence above summarized and the findings above made estab- lish that Respondent was doing just that. Having proceeded to engage in unfair labor practices aimed at defeating the Union's majority status, Respondent certainly could not justify its refusal to bargain on the ground that it was en- titled to require the Union to establish its majority in an election. Joy Silk Mills, Inc., supra; Inter-City Advertising Co., 89 NLRB 1103, enfd. as mod. 190 F. 2d 420 (C. A. 4), cert. den. 342 U. S. 908; Stedfast Rubber Co., 91 NLRB 300, 327.1° Nor, under the foregoing circumstances, can Respondent justify its refusal to bargain subsequent to the injunction order by reliance on the terms of that order. is Solomon's testimony showed that the membership cards were displayed to him during the conferences on February 27 at a time when the Union was claiming a majority repre- sentation. 11 Respondent's brief urges as significant the fact that the original charge of unfair labor practices was subsequently withdrawn , and that, although "without prejudice," the with- drawal "serves nevertheless to eliminate from consideration any claim by the government that the loss of majority by the union was attended by unfair labor practice charges." Respondent's brief not only cites no support for that novel contention , which is contrary to the rationale of the above cases, but it supplied the obvious reason for such withdrawal, i e, that it was presumably to permit the election to proceed , "in accordance with well- known Board practice." 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the filing of Respondent 's petition was required by the order, it cannot strengthen Respondent's assertion of a good-faith doubt, the absence of which was conclusively established by Respondent's prior course of unfair labor prac- tices. Furthermore, were the contrary assumed, the filing of the petition would not here avail Respondent because of its subsequent course of unfair labor prac- tices. Not only was the order expressly conditioned on Respondent' s abstinence of violations of the Act, but the determination of Respondent's petition was, of necessity, expressly entrusted to the Board (Section 9 (c) ). Under well-estab- lished law, Respondent, having consented to the election, could not assert a con- tinuing good-faith doubt of the Union's majority when it promptly embarked upon a new course of unfair labor practices for the purpose of defeating the Union in the election. Joy Silk Mills, Inc., supra. Respondent's challenge of the Union's majority being in bad faith, no genuine question concerning repre- sentation was raised by the petition. Cf. Rehrig-Pacific Co., 99 NLRB 163, and cases there cited. Respondent's sole excuse for refusing to bargain subsequent to the election was the employee petition, and it relies for support solely on N. L. R. B. v. Vulcan Forging Company, 188 F. 2d 297 (C. A. 6). Indeed, it claims the protec- tion of the petition even as against the demand made during the hearing based on cards obtained subsequent to the petition. In Respondent's words, "Insofar as Respondent is concerned, the petition of the employees was the last word on the subject of the majority." The Vulcan case is clearly distinguishable from the present one both in fact and in principle. First, the language of the present petition did not clearly con- stitute a repudiation of the Union or an invalidation of its authority 20 as held by the court in the Vulcan case. Though the purpose of the petition was ren- dered obscure by its vague and inartificial wording, Marx admittedly made no attempt to ascertain either from the circulators or the signatories what the desires of the signatories were or what the object of the petition was. Certainly the petition was not served on Respondent, as it contended. The mysterious delivery to Marx's desk, without explanation, emphasized the uncertainties of its purpose. Even were the petition regarded as an informal decertification petition, Re- spondent was obviously not the agent through which the object could be accom- plished, nor was it entitled to decide for itself that the Union had lost its bargaining status. That was a question for the Board to determine upon orderly statutory procedure. N. L. R. B. v. Sanson Hosiery/ Mill, 195 F. 2d 350 (C. A. 5), citing N. L. R. B. v. Prudential Insurance Company, 154 F. 2d 385 (C. A. 6). But the employee signatories sought no recourse to the Board, and Respondent was not entitled vicariously to raise the question for them. Cf. ibid. What is of greater significance in distinguishing the case from Vulcan is that, were it conceded arguendo that the language of the petition constituted a repudia- tion of the Union, it was a repudiation which was clearly induced by and was a direct result of the Respondent's long course of unfair labor practices, including those surrounding the petition itself, i. e., Respondent's acts in assisting and encouraging the circulation of the petition and in promising and effecting changes in working conditions to obtain signatures. Such unlawful conduct affords a crucial distinction, since in Vulcan the court emphasized that the repudiation of the union there found was not due to any unfair labor practices, and that there was neither claim nor evidence of unfair labor practices prior thereto. 20 None of the union-member signatories notified the Union of their invalidation of their signed authorizations as provided therein. GEORGE C. KNIGHT COMPANY 1221 Furthermore, where it conceded arguendo that no valid distinction exists, yet the great weight of court decisions is contrary to the Vulcan doctrine.' For that reason the Board has repeatedly declined to follow the Vulcan case. See, for example, Mid-Continent Petroleum Corporation, 99 NLRB 182; Ray Brooks, 98 NLRB 976; L. L. Majure Transport Company, 95 NLRB 311, and the numerous cases cited in those decisions and in the Sanson case, supra. It is unnecessary to spell out anew the rationale of the Board's view and of the court decisions or to review again the legislative history of the Act which sup- ports them ; the Board has done so only recently in Ray Brooks, supra. That case is particularly persuasive in the present setting since there, as here, the alleged repudiatory message was received by the employer after the election but before the certification. It is therefore concluded and found that the employee petition afforded Re- spondent no excuse for its refusal to bargain with the Union on its demands subsequent to the certification. Since no "special circumstances" were shown which have impaired the Union's representative status under the certification (Mid-Continent Petroleum Company, supra, and cases cited), such status con- tinued to exist up to the time of the hearing.' It is therefore concluded and found that Respondent refused to bargain with the Union on February 27, 1951, and thereafter prior to the election, as the majority representative of the employees as established by signed authorization cards ; that Respondent refused to bargain with the Union on and after May 23, 1951, as the exclusive bargaining representative of the employees under the certification of May 15, 1951; and that Respondent thereby engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1). Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The activities of Respondent set forth in section III, above, occurring in connection with the operations of 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 thereof. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. All of Respondent's production and maintenance employees, excluding office and clerical employees, professional employees, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. 4. At all times since February 26, 1951, the Union has been and now is the exclusive representative of all the employees in the aforesaid unit for the pur- poses of collective bargaining within the meaning of Section 9 (a) of the Act. 21 Including, indeed , the rationale of other cases from the same circuit See. for example, N. L. R B. v. Prudential Insurance Company, supra , cited in the Sanson. Hosiery case, supra, and the recent case of N L R. B. v. S H. Kress & Co , 194 F. 2d 444 zd Contrary to the General Counsel's contentions, it is therefore unnecessary to make an independent finding that the Union enjoyed a majority representation at the time of the hearing by virtue of the new membership cards and that Respondent committed independ- ently a refusal to bargain in not responding to the Union 's request based on said new majority showing. Nor can it be found , as the General Counsel urged, that Respondent's refusals to bargain in October and February were related to the Union's alleged newly acquired majority representation , since so far as shown by the record , the Union's requests were based on the certification and not on any claim of majority status based on newly signed cards. 250983-vol. 102-53--78 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By failing and refusing at all times from February 27, 1951, to March 28, 1951, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit, Respondent engaged in unfair labor prac- tices within the meaning of Section 8 (a) (5) and (1) of the Act. 6. By failing and refusing at all times since May 23, 1951, to bargain collec- tively with the Union as the exclusive representative of the employees in the aforesaid unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (5) and (1) of the Act. 7. By discriminating in regard to the hire and tenure of Margaret Rushford, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 8. By interfering with, restraining, and coercing its employees in 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 (a) (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] 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 discourage membership in INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 163 (UAW-CIO), or in any other labor organization of our employees, by discharging or refusing to reinstate any of our employees, or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their union member- ship, meetings, and activities ; warn our employees that their conditions of employment will be less favorable if the union should succeed in organizing them ; encourage and assist employees to form and to engage in activities on behalf of the employee committee ; seek employee assistance to cause employees to withdraw their support from and to vote against the union in the election; encourage or assist the circulation of employee petitions to dispose of outside representation or promise to change and changing work- ing conditions of employees because of signing said petition; prohibit dis- cussions by employees on behalf of the union, and prohibit the wearing of union insignia ; forcibly remove union insignia from our employees ; threaten to discharge employees because of the wearing of union insignia, because of their discussions and other activities on behalf of the union, or because of their distribution of union membership cards. WE WILL NOT in any other 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 INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 163 (UAW-CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for WARNER GEAR DIVISION 1223 the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE wILI offer to Margaret Rushford immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay she may have suffered as a result of the discrimina- tion against her. WE WILL bargain collectively, upon request, with INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OR AMERICA, LocAL 163 (UAW-CIO), as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an agreement is reached, embody such understanding in a signed contract. The bargaining unit is : All our production and maintenance employees, excluding office and clerical employees, professional employees, guards, and supervisors as defined in the Act. All our employees are free to become or refrain from becoming members of the above-named union or any other labor organization , except to the extent that the right to refrain may be affected by a lawful agreement requiring member- ship in a labor organization as a condition of employment. GEORGE C. KNIGHT COMPANY, Employer. By--------------------------==---- Dated-------------------------------- ( 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. WARNER GEAR DIVISION , BORG-WARNER CORPORATION and LOCAL 287, INTERNATIONAL UNION, UNITED AuTOMOnILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO. Case No. 35- CA-3.7. February 10, 1953 Decision and Order On December. 15, 1952, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, a copy of which is attached hereto, finding that the Respondent had not engaged and is not engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (1) and (3) of the Act, as alleged in the complaint, and recommending that the complaint be dismissed in its entirety. There- after, the General Counsel filed exceptions to the Intermediate Report. 102 NLRB No. 110.