Ralco Sewing Industries, Inc.

I)I.('ISI()NS OF NATIONAL I.ABOR RI.AlIONS BOARD Ralco Sewing Industries, Inc. and Weather Vane Out- erwear Corporation, Inc. and International Ladies Garment Workers Union, AFI,-CIO and United Brick & C('lay Workers of America, AFIL-CIO Ralco Sewilg Industries, Inc. and Weather Vane Out- erwear Corporation, Inc. and Deanna Dale Duna- way, Petitioner and United Brick & Clav Workers of America, AFL-CIO. ases 9 C(A 11261 I, 9 C'A 11990. and 9 RD 754 July 13, 1979 DECISION, ORDER, AND [)IRECTION OF SECOND ELECTION BY (ICHAIRMAN FANNIN(; ANI) MIMIlERS PNIF I .I ANI) MIRPI'IY On November 1, 1978, Administrative Law Judge Michael O. Miller issued the attached Decision in this proceeding. Thereafter, Respondents, United Brick & Clay Workers of America, AFL C10, and Deanna Dale Dunaway, the RD Petitioner herein, filed excep- tions and supporting briets, the International Ladies Garment Workers' Union. AFL-CIO, filed an an- swering brief; and the General ('ounsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional .abor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings, and conclusions2 of the Administrative Law Judge,. and to adopt his recommended Order, as modified herein.4 i Respondents have excepted to certain credibility findings made by the Administrative l.aw Judge. It is the Board's established policy not to over- rule an administrative law judge's resolutions with respect to credibility un- less the clear preponderance of all of the relevant evidence con inces us that the resolutions are incorrect. Standard Dry Wall Prducts. ,In. 91 NLRB 544 (1950)., enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings, I We agree with the Administrative .aw Judge that Respondents violated Sec. 8(aH2) and (1) of the Act for the reasons set fiorth in his Decision. However, in doing so, we find it unnecessary to rely upon Midwe.ri Pping and Suppl Co.,. Inc.. 63 NLRB 1060 (1945), and U and 1. Inc. 227 NLRB I (1976). cited by the Administrative Law Judge in support of his result. I On December 11, 1978, the Petitioner in Case 9 RD 754 filed a motion to reopen the record in this proceeding and remand to the Regional Director for the taking of allegedly newly discovered evidence. The United Brick & Clay Workers filed a statement in opposition to the motion, while the Inter- national Ladies Garment Workers' Union filed a statement in support. On January 9. 1979. the General Counsel moved to sever and remand to the Regionl Director case 9 RD 754. The International ladies Garment Work- ers' Union filed a response in opposition to the motion to sever: the RD Petitioner filed a response supporting her motion to reopen with respect to the whole consolidated proceeding but stating she would not oppose severing Case 9 RD 754. Respondents filed a reply opposing an) reopening of the record and also severance of' Case 9 RD 754 fr purposes of remand and ORDER Pursuant to Section 10(c) of' the National Labor Relations Act, as amended, the National abor Rela- tions Board adopts as its Order the recommended Or- der of' the Administrative Law Judge. as modified be- low, and hereby orders that the Respondents, Ralco Sewing Industries, Inc., and Weather Vane Outer- wear ('orporation, Inc., Olive Hill. Kentucky, their otfficers. agents, successors, and assigns. shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph I(e): "(e) Refusing to bargain collectively with the In- ternational Ladies Garment Workers' Union, AFI. ('10, as the exclusive bargaining representative of the employees in the following appropriate unit: "All shipping clerks, including local truck driv- ers, employed by Weather Vane at Olive Hill, Kentucky, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 11 IS FUR IIIIR ORDEREI) that the complaint be dis- missed as to any alleged violations of the Act not found herein. Il IS FURIILER O()i:RII) that the election held on December 9, 1977, in Case 9 RD 754 be, and it hereby is, set aside and that a new election be di- rected therein as set forth below. I[Direction of Second Election and Excelsior foot- note omitted from publication.] further hearing As the Petilioner's motion to reopen was filed more than 2 months after discosery of the new evidence. it was not timelb tiled Accord- ingly, we deny her motion to reopen and the General Counsel's motion to sever and remand Case 9 R) 754. ' The Administrative l.av Judge provided that Respondent Weather Vane be required to bargain with the International adies Garment Workers' Union as the representative of Weather Vane's employees in a unit of all shipping clerks. including local truckdrivers, employed at its Olive Hill, Ken- tucky, facility, as of October 23. 1976, the date on which Respondents com- menced their course of unlawful conduct. However, as the International ladies Garment Workers' Union first demanded recognition for employees in the appropriate unit on December 22. 1976. and as all of the Respondents' unfair labor practices are otherwise individually remedied by our adoption of' the Administrative L.aw Judge's recommended Order, we shall date Re- spondent Weather Vane's bargaining obligation from December 22. 1976. See Trading Port, Inr., 219 NLRB 298. 301 (1975). APPENDIX No'ric( To EMPI.OYIflS POSI'I) BY ORDI)R ()F ItF NAII()ONAI. LABOR RIL.AI()NS BOARD An Agency of the United States Government After a hearing at which all parties were afflrded the opportunity to present evidence, it has been found 243 NLRB No. 51 438 RALCO SWING(; IND)LUSIRILS. INC. that we violated the National l.abor Relations Act in certain respects and we have been ordered to post this notice and to carry out its terms. The National Labor Relations Act, gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a represent- ative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. Accordingly. we give you these assurances: WE Wll.l. NOIT threaten our employees with discharge in order to discourage them from filing grievances or engaging in other union or pro- tected concerted activities. WE WILL NOT interrogate our employees about their union membership, activities, or desires or about the union membership, activities, or de- sires of other employees. WE WII.I. NOT assist, support, or otherwise in- terfere with the administration or activities of the United Brick & Clay Workers of America. AFL CIO, or any other labor organization. WE WILL. NOT discharge or lay employees off, or refuse to recall them from layoff, because of their union membership, activities, and desires, or to discourage them from filing grievances or engaging in other union or protected concerted activities. WE WIL. NOT in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of their statutory rights. WE WILL offer Judy Erwin immediate and full reinstatement to her former job or a substantially equivalent job, without prejudice to her seniority or any other rights or privileges previously en- joyed, and WE WILL make Judy Erwin, Keith Hicks, Tony Jones, Jerry Stevens. and Harold Waggoner whole for any loss of pay they may have suffered because of our discrimination against them, with interest. WE wii., upon request, bargain with the In- ternational Ladies Garment Workers' Union, AFL CIO, as the exclusive representative of all employees in the following unit with respect to wages, hours of employment, and other terms and conditions of employment: All shipping clerks, including local truck driv- ers, employed by Weather Vane at Olive Hill. Kentucky. excluding office clerical employees. professional employees, guards and super\ - sors as defined in the Act. RAI.(() SlW IN( INI) SI RIIS, I . AN WI:A I tIR VANE OL IIR\'I:AR C)RI'(IRA II(),. I)ECISION S AI i MINI /)1 In1 CASI MicilAI O. MII.IIR. Administrative l.aA Judge: Ihcesc consolidated cases were heard in Morehead. Kentuck on June 7 and 8. 1978.' The complaints allege that Ralco Sewing Industries, Inc. (herein Ralco, and Weather Vane Outerwear Corporation. Inc. (herein Weather Vane). a single emplo er. iolated Sections 8(a)( I ), (2). (3). and (5) of the National I.lahor Re- lations Act (herein the Act). All parties were given full opportunity to particip.ite. to introduce relevant evidence, to examine and cross-examnin witnesses, and to argue orall\. Briefs were filed hb the (ien- eral Counsel. Respondents Ralco and Weather Vane. and both unions. Upon the entire record, including my careful obserxation of the witnesses and their demeanor, I make the tillowing: INI)IN(,S ()I FA( I I. RSP()NI)N I S HtA SINI-SS AN) ll1 I NI()NS I s.0I)R ()R(;ANI/a 11()N SI A I IS Ralco is engaged in the manufacture of outerwear. It is a wholly owned subsidiary of Weather Vane. a Kentuckk' corporation, which warehouses, ships. and sells the gar- ments manufactured bv Ralco. Ralco's production facilities and Weather Vane's warehouse are both located in Ollse Hill, Kentucky. Jurisdiction is not in issue. Respondets admit that they are and have been at all material inics corporations operating as a single integrated enterprise u ilh common ownership. supervision, facilities, and centralized control of labor relations and. as such, constitute a single employer. They further admit that they meet the Board's jurisdictional standards and comprise an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. The complaints allege and Respondents admit that the ILGWU and the Brick & (Clay Workers are both labor or- ganizations within the meaning of Section 2) of the Act. I The charge in Case 9 CA 11261 I as filed bh the Internatiinal I adlc Garment Workers' Union. AF. (10 (herein the II.G':, ! n April 11. 1977, and complaint issued on MaN 22, 1978. he chalrge i ( sac 9 ('A 1 1990 was filed hb the nited Brick & Cloa\ Workers of America. Al I (0) (herein the Brick & (lay Workers on December 2 1977 and cmplnll issued on January 25. 1978 Thc Supplemental )ecsin in Cause 9 R) 7' issued on Februar 7 1978. Respondent tiled tirnel answer, to the plaints and all pleadings were timels ser'ed 2Brick & (las Workers ntersened in ( Cae 9 (A I 1261 I 41) DECISIONS OF NATIONAI. LABOR RELATIONS BOARI) II. 111 iL t NAIR L.ABOR PRA(I( S AND) OBJE(tIONS 1 1 til l.IL( ION A. BlacAground-Repres'ntarition Historyn and the Representation Caso e Peitions Ralco manufactures winter garments for Weather Vane and, at material times, employed over 100 employees. The garments are stored and shipped from a separate ware- house, called Weather Vane, located adjacent to and sepa- rated by a parking lot from the Ralco plant. Weather Vane's employee complement was approximately 16. In 1972. the Brick & C(lay Workers were certified to rep- resent Ralco's nonsupervisory employees and a 3-year col- lective-bargaining agreement was entered into on October 11, 1972. The unit included the warehouse employees. However, the warehouse employees were transferred to the Weather Vane payroll around 1975, and the collective-bar- gaining agreement ceased to apply to them at that time. The contract was subsequently extended to December I, 1976. On September 8. 1976. the ILGWU filed a timely repre- sentation petition, Case- RC 11684, seeking to represent the production, maintenance, shipping, and receiving employ- ees of Ralco in the unit then covered by the Ralco-Brick & Clay Workers agreement. However, following the filing of a "no-raid" complaint by the Brick & Clay Workers pursuant to article XX of the AFL. CIO constitution, and a decision by an impartial umpire finding the ILGWU's activity to constitute a "raid", the ILGWU withdrew its petition. That withdrawal was appoved on December 15. 1976. In the interim between the impartial umpire's decision and the withdrawal of Case 9-RC 11684 a Ralco em- ployee, Deanna. Dunaway. timely filed the decertification petition in Case 9 RC 754. The ILGWU had also filed an- other petition. Case 9-RC- 11734, on October 7, 1976. seek- ing a unit of shipping clerks and local truckdrivers em- ployed by Weather Vane. The Board directed an election upon the decertification petition in the unit of Ralco pro- duction, maintenance, shipping, and receiving employees. They also treated the ILGWU petition as a request for a residual unit of all unrepresented employees (the warehouse employees of Weather Vane being the only employees not represented by the Brick & Clay Workers) and directed an election in the following unit, deemed appropriate in the circumstances of this case (as more fully described by the Board in its Decision and Direction of Elections. supra): All shipping clerks, including local truck drivers, em- ployed by Ralco [Weather Vanej at Olive Hill. Ken- tucky, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. The ILGWU's petition in Case 9-CA 11734 was subse- quently withdrawn. An election upon the decertification petition was con- ducted on December 9, 1977. and a majority of the valid I Much of the following information is drawn from the Board's [)ecision and Direction of Elections in Weaher Vane Oulerwsear Corporaiton. Inc. 233 NLRB 414 (1977). votes were cast against continued representation by the Birick & Clay Workers. On December 16. 1977. that Union filed timely objections to the conduct ol that election. As those objections were essentially the same as the allegations contained in the complaint in Case 9 ('A 11990, which is- sued on January 25, 1978. those objections were consoli- dated for hearing with the complaint allegations by the Re- gional Director's Supplemental Decision of Februarv 7. 1978. B. Cases 9 (A 1199( and RD 754 The complaint in Case 9-(CA 11990 alleged that Respon- dents interfered with, restrained, and coerced their employ- ees in the exercise of their rights under Section 7 of the Act, and thereby violated Section 8(a)( I) of the Act, by the con- duct of their president. Ira Holskin. about December I. 1977. in telling employees that a fellow employee would not be recalled from layoff because she had filed grievances un- der the contract between Ralco and the Brick & ('lay Workers. It further alleged that, on or about the same date. Respondent discriminatorily terminated Judy Erwin by failing and refusing to recall her from layoff because of her membership in, activities on behalf of. and sympathy for the Brick & Clay Workers and because she had filed griev- ances under the terms of the contract. As noted, the objec- tions filed by the Brick & Clay Workers to the conduct of the RD election were essentially identical to the complaint allegations. At hearing, counsel for the Respondents amended the answer to the complaint in Case 9 CA 11990 and admitted all its allegations and conclusions. I therefore find the viola- tions so alleged. It follows from this finding that the objec- tions filed by the Brick & Clay Workers are sustained. I shall therefore recommend that the election conducted in Case 9 RD-754 held on December 9. 1977. be set aside and a rerun election be conducted. C. Case 9 CA 11261 1 The complaint in Case 9 CA 11261 1. based upon a charge filed by the IL.GWU and involving events at the Weather Vane warehouse, alleges that Respondents vio- lated Sections 8(a)(I), (2). (3), and (5). I. The 8(a)(3) allegations The complaint alleges that Respondent laid off employ- ees Keith Hicks. Tony Jones. Jerry Stevens, and Harold Waggoner on or about October 23, 1976, (recalling them some time later) because of their ILGWU union member- ship, sympathies, and activities. Respondent admitted these allegations. Accordingly. I find that Respondent violated Section 8(a)(3) and (11) of the Act, as alleged in this com- plaint. 2. The 8(a)(1) allegations Employee Larry Thornsberry testified that he began wearing a button proclaiming his support for the II.GWU in October 1976 and wore it continually thereafter. Some- 440 RAL.(O SEWIN(; INDUSIRIES. INC. time after he began wearing that insignia, he stated, Ware- house Supervisor John Bowling spoke to him in the back of the warehouse and said that "he wanted me to sign a Brick & Clay Union card." Thornsberry said he would have to think about it and Bowling replied that "we'd be better off with the Brick & Clay Union ... land] that the dues would he taken care of." Thornsberry responded that they would have to pay dues with either Union and walked off. Thornsberrv related a similar conversation with Sales Manager Harold Oppenheimer, about a week after his al- leged conversation with Bowling. Oppenheimer. he said, stated that "he [Oppenheimer] wanted me to sign a Brick & Clay card. That he thought we'd be better off with it."' Bowling admitted having acquired knowledge of the union campaign by observing employees wearing union buttons in the warehouse, but denied that he ever saw Thornsberry [or fellow employee Marvin Hicks] wearing such buttons. He specifically denied asking Thornsberr to sign a card for the Brick & Clay Union. Similarl'. Oppen- heimer denied soliciting any Weather Vane employees to sign cards for the Brick & Clay Workers and further denied having any conversations with Larry Thornsberry. except possibly about his work duties. Employee Tony Jones related a conversation held with Bowling some time in late October or early November. shortly after Jones returned from a brief layoff. In this con- versation, held in Bowling's office. Bowling asked Jones whether he had signed a union card. Jones responded that he had and was then asked who had given them out and who else had signed them. Jones professed ignorance. Bowl- ing denied asking Jones whether he had signed a card for the ILGWU. On a morning in late October 1976. Bowling approached Larry Thornsberry and Marvin Hicks. two of Weather Vane's more senior employees, and told them that they were being laid off. According to Thornsberry, both he and Hicks were wearing ILGWU buttons at that time.' Bowling did not state a reason for their layoff and allowed them to work the remainder of that day. Later that same day, after discussing the layoffs with Ira Holskin, Weather Vane's president, and being told by Hol- skin not to lay them off,6 Bowling called Thornsberry into his office. According to Thornsberry, Bowling asked him what was wrong and Thronsberry replied that he believed that too much was being put upon him, that he liked to leave at 4 p.m. once in a while, and questioned why three new employees had been hired while he and Hicks were being laid off. Bowling told him that he had laid them off because he had been mad and aggravated and that he was revoking the layoff. On cross-examination. after reaffirming his certaint2 that Oppenheimer asked him to sign a card, he acknowledged that in the affidavit which he gave the Board in the investigative stage of this case. he stated. "[hJc really didn't ask me to sign one, he just suggested it strongly." Clarifying. he testi- fied that Oppenheimer said. "lilf you will sign a card .. you'll be better off." Thornsberry's testimony in regard to the wearing of union buttons was not corroborated by Hicks. who was called as a witness fior Respondent Nor was the testimony of Thornsberry's wife offered on this point although Thornsberry testified that she was present during the consersation. 6 Holskin corroborated Bowling's testimony. Bowling contended that his attempted or threatened la - off of hornsherr, and ilicks was the result of their having lefi work at the end of their regular shift on the prior eve- ning. when overtime had been assigned. and contrary to the instructions he had given them to stay and unload a truck. This misconduct was admitted by Thornsberry and licks. Bowling's pretrial affidavit. however. makes no reference to Thornsberry's and Hicks' refusal to work overtime on the night beftire this incident: the only reason given therein for telling them they were to be laid off was that work as slow. Bowling admitted that work was not so slow as to warrant a layoff and that. had a layoff been called for. Thornshberry's and Hlicks' seniority would have prevented their layoff. Viewing all of the foregoing evidence in juxtaposition I am constrained to credit the testimony otf Bowling and Op- penheimer over that of Thornsberrv. In addition to their respective testimonial demeanors. I note the following: The statements attributed to both Bowling and Oppenheimer regarding the solicitation to sign a Brick & ('lai Workers card are vitually identical and somewhat pat. As this record stands. Thornsberry was the only employee allegedly solic- ited to sign a Brick & ('lay Workers card and I find it improbable that only one employee would he so solicited, twice, and while allegedly wearing a button proclaiming his support for the other union. As to his wearing of union insignia Thornsberry's testimony lacks corroboration, al- though the allegedly corrohborative evidence wIas available to the General Counsel. Further, I note Thornsbherr's ad- mitted resentment against Bowling for the kinds of jobs assigned him (antedating the organizational acti'ity , and for the frequent overtime assignments. Finally. in this re- gard. I note Respondent's candor in admitting the 8(a)(3) allegations of the complaints. Accordingly. I find that the General Counsel has failed to sustain his burden of proving that Respondent solicited its employees to sign authoriza- tion cards for the Brick & ('lay Workers. Similarly. while Bowling's inconsistencies in regard to his reasons for telling Thornsberry and Hicks that they were to be laid off raise questions as to his motivation, I find the evidence insufficient to establish that he was motivated by their union activities. Thus, these employees had insubordi- natelyv left work and failed to work assigned overtime and. while there was no mention of that in Bowling's conversa- tion with them, there was similarly' no mention of their union activities. Further, as previously noted. Thorns- berry's testimony that he was wearing a union button is uncorroborated. Both Thornsberry's and Hicks' other union activities were minimal and not known to Respon- dent. Moreover. Bowling's testimony is essentially corrobo- rated by that of Oppenheimer. As between employee Tony Jones and Bowling. I was more fvorabl impressed with Jones' testimonial demeanor than that of Bowling. Accord- ingly,. I find that Bowling interrogated Jones. as alleged in the complaint. as amended. There is no justification, in these circumstances, for asking an employee whether he had signed a union card and certainly no justification exists for asking who had solicited the cards and who else had signed. Such interrogation is so clearly' coercive as to re- quire no citation of authority. I therefore find that by this interrogation, Respondent violated Section 8(a)(l) of the Act. 441 I)ECISIONS OF NATIONAI. L.ABOR RELAT'IONS BOARD 3. The 8(a)(2) allegations The complaint alleges that Respondent rendered aid, as- sistance, and support to the Brick & C(lay Workers by solic- iting employees to sign cards for that Union and by select- ing applicants for employment on the condition that they designate that Union as their bargaining representative. As to the first of these contentions, I have already found insuf- ficient evidence to sustain the General Counsel's burden of proof. The only record evidence supporting the second con- cerns the referral of employees to Weather Vane by Glenna Huntsman. the Brick & Clay Workers' business agent. Huntsman testified that during the fall of 1976. in the course of a telephone conversation with Respondent's attor- ney, Burton Horowitz, she learned that Respondent needed employees and she offered to refer individuals to Respon- dent.7 Huntsman then contacted several unemployed work- ers, either directly or through a neighborhood shopkeeper, and had them come to the union hall. Jerry Bishop and Gary Brown both testified that Huntsman had them sign a card or similar small paper (apparently a dues checkoff card). and each employee was given a Brick & Clay Work- ers business card on which was written Bowling's name. They were told to go to Respondent's plant and give the card to Bowling. Bishop further testified that Huntsman told him that she had found his application in the file (Bishop had requested a friend to file an application with Respondent on his behalf and believed that it had been done), and that he could work for Ralco if he voted for the Brick & Clay Workers. She also told him that he should not tell anyone that he had been to the union hall or knew Huntsman and that he would work until mid-December, when he would be laid off, but that he would be recalled if there was a vote and he voted for the Brick & Clay Work- ers. Bishop and Billy Henderson went to Weather Vane and asked for and met a man who said that he was Bowling. They said that they were looking for work, showed him the business card they had received from Huntsman, and were then introduced to the real John Bowling by Harold Op- penheimer, the man whom they first met. They went to the office, gave a secretary their names and social security num- bers, and were told to report back at noon to begin work. Lonnie Henderson and Gary Brown were similarly referred to Weather Vane. Bishop did not return to Weather Vane at noon, as Bowl- ing had instructed him. Shortly thereafter, he received a call, at home, from Huntsman, who asked why he had not returned. He told her that he suspected something improper from the manner in which Oppenheimer had initially intro- duced himself as Bowling. She told him to go back to the plant and he did. He began working at Weather Vane on November 11, 1976, and worked full time until he was laid off in December. Several days after Huntsman referred the employees to Weather Vane, she was seen walking through the ware- Huntsman was the only witness on this point. Her testimony is somewhat shifting and unclear as to whether tlorowitz specifically asked her to refer prospective employees or merely mentioned that Respondent was hiring The conversation covered a number of sibjects, which she did not enumer- ate. She testified that it was not unusual for her to speak with Horowitz house with Mr. Pelfrey, an International Union officer, and John Bowling. She spoke to a number of employees on the job. None of the foregoing employees was requested to sign an2, union authorization cards during their Weather Vane employment. s The combination of E mployer-applied pressures de- scribed above leads me to conclude, in agreement with the General Counsel and the Charging Party. that Respon- dent's actions reasonably tended to coerce employees in the exercise of their free choice in the selection of a bargaining representative. See ["ertntron Electrical ('omponents, Inc., Beau Products Division, 221 NLRB 464 (1975). enforced N.L.R.B. v. 'ernitron Electrical ('omptontens, Inc. Beau Products Dvision 548 F.2d 24 (Ist (Cir. 1977). Thus in a hotly contested two-union situation, where opposition to one of the contestants has been forcefully expressed by dis- criminatory discharges (admitted) and interrogation, this employer sought out the favored contestant and solicited. either expressly or tacitly, that Union to refer applicants for employment to it. This is a powerful "leg-up" for the Union so avored, not unlike an employer referring a job applicant to the Union for clearance or the signing of a union autho- rization card (see. for example, William J. Burns Interna- tional Detective Agency, Inc., 182 NLRB 348 (1970). and as might reasonably be expected, it was used to advantage. The applicants were called into the union office, so as to underscore the source of their good fortune. Their support for that Union was solicited by references to a coming elec- tion and the possibility of future employment if they voted right, and at least some were solicited to sign dues checkoff authorization cards. The card of a union agent was given them, like a key to open the door to their new jobs. and was received by the employer as essentially the sole evidence of their acceptability as employees. The Respondent's support or preference for the Brick & lay Workers was then fur- ther emphasized when Huntsman. rather than the Respon- dent, called Bishop to inquire why he had not returned to the warehouse to begin work and when, several days later, the Employer paraded through the warehouse with two rep- resentatives of the Brick & ('lay Workers, while those rep- resentatives stopped and chatted with various employees. The foregoing conduct. I must conclude, violates the strict neutrality required of an employer who is faced with the conflicting claims of two or more rival unions. See U atnd 1, Inc., 227 NLRB I (1976), and Midwest Piping & Sup- plv Co., Inc.. 63 NLRB 1060 (1945). Accordingly. I find that Respondent provided unlawful assistance and support to the Brick & Clay Workers in violation of Section 8(a)(2) and (I) of the Act. 4. he 8(a)(5) allegation (a) Demand and refusal On October 7, 1976, the ILGWU filed the representation petition in Case 9 RC I The foregiong description of events is drawn from the credited testimo- nies orf Bishop, Lonnie Henderson, and Gary Brown Huntsman did not specifically deny having employees sign cards for the nion or telling Bishop not to tell anyone that he had been to the union all. Her testimony was., in several respects. contradictory within itself and with her pretrial affidait and. to the extent that it conflicts with the estimonv of the employees, I discredit her Oppenheimer did not dispute Bishop's testimony regarding Iheir initial meeting and his holding himself out as Bowling 442 RAIC() SEWING INDUSIRIES. IN('. 11734, seeking to represent Weather Vane's shipping clerks and local truckdrivers. On December 22. 1976. the II.GWIU made a formal written demand for recognition in that same unit. Respondent indicated receipt for that letter in its re- sponse of December 28, 1976. At no time lid Respondent agree to recognize the 11G.(WU as the representative of' those employees. (b) The appropriate unit The appropriate collective- bargaining unit, as fiund by the Board in Case 9 RC- 11734 is: All shipping clerks, including local truckdrivers, em- ployed by [Weather Vanel at Olive lill. Kentucky, ex- cluding office clerical employees, professional employ- ees, guards and supervisors as defined in the Act.' (c) the ILGWlU's majority status The Gieneral Counsel alleged that as of October 6, 1976, a majority of Respon- dent's employees in the appropriate unit set forth above designated the I.GWU as their exclusive collective-bar- gaining representative. The record evidence, including ex- hibits, admissions, and stipulations. establishes that there were seven individuals actively employed on or about Octo- ber 6 and December 22, 1976: Raymond Boggs, Mickey Nolan, Rick Bowling, Johnny olmes, Berman Skaggs, Marvin Hicks, and Larry Thornsberry. There were also five persons employed on October 6, who, the Board found in the representation case and parties now agree, were only temporarily laid off as of December 22: Walter Evans, Jer- ry Stevens, Tony Jones. Harold Waggoner, and Keith Hicks.' ° Additionally, the record reflects that five employ- ees. Ronnie and Rodney Vanlandingham, Lovell Fielding. Ralph Lowe. and Steve Carpenter, were laid off prior to October 6. Respondent contends that all of these individ- uals were only temporary employees and did not expect recall. However, the Board specifically found, on the basis of testimony given by both employer and ILGWU wit- nesses, that these employees (and others admitted to be in the unit) "were hired for an indefinite period, performed the same duties as other employees, were laid off in the midst of a seasonally slow period when the Employer was effectuat- ing a general reduction of its work force, and were not told when they were laid off that there was little possibility of their being rehired, that they were temporarily laid off and have a reasonable expectancy of recall." The two Vanland- inghams, Fielding, and Lowe were determined to be eligible voters. Weather Vane Outerwear Corporation, Inc., supra.'' Of these, specific evidence was proffered only in regard to Lovell Fielding. Fielding testified that he began work in September of 1976. worked picking orders on the night shift, and was laid off with other members of the night shift about September 28, 1976. When he laid them off, Bowling told the employees that work was caught up and they would not be needed for a while. They were told that they might be needed later. Fielding sought other employment 'While Respondent denied the appropriateness of this unit, no evidence was adduced in regard thereto. In the absence of newly discovered or previ- ously unavailable evidence or special circumstances. relitigation or reevalu- ation of this issue is unwarranted. 10 As noted supra, Respondent admitted that the layoffs of Stevens, Jones, Waggoner. and Hicks were discriminatorily motivated. u The Board's Decision contains no reference to Steve (Carpenter. and has never been recalled to Weather Vane. According to Bowling. Fielding was hired as part of an 8- or 10-person night shift which worked only 3 or 4 weeks in September or October and was then discontinued when it was no longer needed. e further claimed that Fielding was not laid off but merely failed to show up for work after a while. his testimony is unsupported by any evidence from compan records which might reveal whether Fielding quit or was laid of. For this reason, and on the basis of Fielding's supe- rior testimonial demeanor. I credit Fielding. Thus, the record establishes that as of October 6. 1976. and continuing through at least I)ecember 22. 197t). there were 16 persons employed in the appropriate unit. ' (en- eral C(ounsel introduced valid signed cards, applying for membership in the lI,(iWIJ and authorizing that Union to represent them for collectixe-bargaining purposes, from 13 of these 16. () One. however. was signed by an employee who also signed an authorizalion card on behalf of the Brick & (lay Workers, Berman Skaggs. Skaggs' card, there- fore, may not be counted to determining the II.GWU's ma- jority status. Allied SupcermalrAL t.v, Inc. .1llcid Di.rcoulnt Foo,,,t Diision,,,, 169 NL.RB 927 (1968). With 12 remaining cards, the Il.(iWU possessed designations of representati e from a clear majorits.l? (d) Section 8(a)(5) and the bargaining order remedy In .V.L.R.B. v. (;is.el Pcing CaO. Inc., 395 U.S. 575 (1969). the Supreme Court held that a bargaining order without an election would be appropriate in either of two situations: first, in "exceptional" cases involving "outrageous" and "pervasive" unlawful conduct (not contended herein): and. second, in those "less extraordinary cases" involving less pervasive practices, where the union has achieved a card majority at some point, and where the Board concludes that the extensiveness of the unlawful conduct has a "tendency to undermine majority strength and impede the election process." (;i..xl, 395 U.S. at 613 614. See also Armcor In- dustris, Inc., 227 NLRB 1543 (1977). I have found, in large measure upon Respondent's admis- sions, that Respondent interrogated one employee. discrim- inatorili laid off four unit employees because of their sup- port for the I GCWU. subsequently threatened and discharged another employee in a neighboring unit because of her grievance-filing activity, and rendered unlawful as- sistance and support to the Brick & Clay Workers to the detriment of the ILGWU. These unfair labor practices are sufficiently serious and extensive to undermine that Union's majority status and impede a free and fair election. Their effects are so lingering that I must conclude that the em- ployee sentiment, as reflected in the authorization cards signed on behalf of the ILGWU, would, on balance, be better protected by a bargaining order. In reaching this conclusion, I note particularly that Re- spondent's conduct occurred in a small unit, 16 employees, '2Steve Carpenter has been excluded from all computations because he was omitted from consideration n the Board's Decision. 1) Nolan, Skaggs, Marvin Hicks, Thornsherry. Evans. Stevens. Jones, Waggoner, Keith Hicks, Ronnie and Rodney Vanlandingham, Fielding. and Lowe. 14 The II.GWU would retain that majority status even i the to Vanland- inghams. Filelding. and Lo.ve were excluded rom the unit. as contended by Responden 443 DF:('ISIONS O() NAI'IONAI. IABOR RELA'IONS BOARI) where the impact of such conduct is magnified. The dis- criminatory conduct directly affected four employees, a full quarter of that unit, and, as the Board has noted: [njo employer conduct is more serious or has conse- quences more crippling to the free exercise of Section 7 rights than the discharge of an employee because of the employee's union affiliation. Armcor Industries, supra at 1545. As in .4rmcor, certain facts cause these discriminatory discharges to have particularly pronounced effects. Not only did Respondent attempt to reduce the support for the ILGWU. shortly after it peti- tioned for an election, by laying off its supporters, Respon- dent went further and unlawfully sought the aid of the la- vored Brick & ('lay Workers to add other employees to the unit who would reasonably be expected to vote lor that Union. Finally, Respondent underscored its continuing op- position to its employees' free exercise of their statutory rights when, more than a year later, it discharged an em- ployee in the neighboring unit because she was a member of the Brick & ('lay Workers and because she sought to utilize the grievance procedure. These unfair labor practices, it may reasonably be believed, created a coercive atmosphere which conventional Board remedies might not adequately dissipate so that a fair election could be held with reason- able certainty. See Joseph J. L.achniet d/b/a/ Htonda of Haos- lett, 201 NLRB 855 (1973). The Brick & Clay Workers, however, also secured valid authorization cards from four of the employees in the Weather Vane unit (including one who signed for both Unions). Moreover, the Board, in its representation case decision, found that the Brick & Clay Workers had an in- terest and were entitled to a place on the ballot in any election held in that unit. Respondent and the Brick & ('lay Workers therefore contend that a question concerning rep- resentation (QCR) exists and that a bargaining order in fa- vor of the ILGWU would disenfranchise the Brick & Clay Workers and its supporters and be inconsistent with the principles of the Midwest Piping doctrine." In support thereof, they rely essentially upon Riviera Manor Nursing Home, Inc., 220 NLRB 124 (1975). In that case, the em- ployer had granted voluntary recognition to one union, Lo- cal 593, almost immediately after a Circuit C('ourt of Ap- peals had enforced an earlier order of the Board as to violations of Sections 8(a)(1) and (3) but denied enforce- ment to the Board's order that the employer recognize and bargain with another union, Council 19. The Board held that its "efforts on behalf of Council 19 to enforce the bar- gaining order, as well as the existence of the then as yet unremedied violations of Section 8(a)(3) and (1) based on charges filed by Council 19, put Respondent on notice that Council 19 itself maintained, if not majority status, at least a continuing and substantial interest in representing its em- ployees." Riviera Manor, supra at 125. The Board held that the employer's speedy recognition of Local 593, without even an attempt to determine whether Council 19 had abandoned its interest, constituted a failure to observe the strict neutrality required under Midwest Piping, and vio- lated Section 8(aX2) and (1). a' Midwest Piping & Supply Co., 63 NLRB 1060 (1945). General Counsel and the Charging Party point out that the obligations imposed by Midwest Piping are those of the neutral employer: having assisted the Brick & Clay Work- ers, the) contend, Respondent lost its neutrality and the Midwest Piping doctrine ceased to be applicable. Principle reliance was placed on The Brescome Distributors Corpora- tion, 179 NI.RB 787 (1969). en'd. subh. nomn. Wine & Liquor Salesmen & 4llied Workers Local Union 195 v. N.I.R. B. 452 F.2d 1312 (D.C. Cir. 1971). In that case, the Board 1ound that the employer had assisted in the initial organiza- tion of' the incumbent. an independent association, many years before. and through its supervisors had continued to influence the association in its collective-bargaining rela- tionship. The Board further found that the employer's su- pervisors were officers and members of the association and had served on its bargaining committee. Except for one year, the dealings between the employer and the association were never reduced to writing. In addition to various acts of Section 8(a)(2} conduct within the statutory limitations pe- riod, the Board found interrogations. threats, promises of benefit, and grants of benefits all directed against the em- ployees' selection of another union. In concluding that the Midwest Piping doctrine did not preclude the application of a Gissel bargaining order, the Board stated in Brescome. supra at 788: [Tihe doctrine of the Midwest Piping line of cases. while a valid one, is not to be construed and applied so mechanically as to defeat its basic purpose. That prin- ciple is designed to serve as a shield and not as a sword. An employer. fced with a competing represen- tation claim, quite properly should be protected from the Union's refusal-to-bargain charge, even where that union is able to demonstrate a card majority, in a situ- ation where he evidences his neutrality by maintaining the status auo while the question concerning represen- tation is being determined by the Board. But it is for- eign to the basic concept o' the rule to invoke it as a justilicnion lor a ref/isal to bargain in a situation where, as here, the enmplover, instead of remaining neutral, takes sides, and engages in unfizir labor practices aimed at as- sisting and upporting the union he favors, and utilizes this as a means of dissipating the majority of the rival union to which he is opposed In this situation, to excuse the refusal to bargain and deny the remedial relief of a bargaining order could serve only to exalt the letter of the rule while stultifying its purpose, and would leave the victimized union without a truly effective remedy.'" [Emphasis supplied.j Subsequently, the Board was faced with a case involving an employer's egregious and coercive conduct in support of an incumbent union which had been neither organized nor controlled by that Respondent and which did not itself seek or participate in the unlawful assistance." The Board "ISee also Overland Distribution Centers, Inc., 194 NLRB 727 (1971). where the Board reached a similar conclusion in a situation involving em- ployer responsibility for the conception and birth of the independent union. the existence of which was then argued by the employer in support of its Midwest Piping defense to a proposed bargaining order. '' The unlawful conduct included interrogation, threats of vanous kinds including moving the plant and reduction of hours of work, promises of benefit, and solicitation on behalf of the incumbent. Business Envelope Manu/acturers of Tennessee. Inc., 227 NLRB 280 (1976). 444 RAI('() SEWING INDI)ISrRIES, INC. (Members Penello and Walther. Member Jenkins dissent- ing) held that a bargaining order in favor of the challenging outside union was not warranted. Member Penello stated that although the challenger's card majority was sufficient to raise a real question concerning representation. it was not sufficient to establish majority status in the presence of a legitimate incumbent collective-bargaining agent. Mem- ber Walther, agreeing with Member Penello's conclusion. found that neither union had demonstrated clear majority support. issenting, Member Jenkins concluded that the Respondent's unlawful conduct precluded the possibility of a fair election being conducted in the freseeable future and framed the issue as: "Between the two nonoffending Unions, which has the superior claim to majority status?" He would have resolved that question in favor of the chal- lenging union, which possessed an overwhelming majority based upon authorization cards. Those cards, he stated. overcame the incumbent's presumption of continued major- ity, and were the best evidence of the employee's desires, in the circumstances. The instant case, involving not the grant of recognition but the withholding of it, is factually distinguishable from Riviera Manor and falls somewhere between Brescome and Business Envelope. The Brick & Clay Workers, having at one time represented the warehouse employees, was not an incumbent. It enjoyed no presumption of majority support and did not claim to represent a majority of the Weather Vane employees. But it was a legitimate presence on the scene; there was no evidence that prior to the current cam- paign it was in any way an assisted union. However, I have found that it was assisted in this campaign and, contrary to the incumbent in Business Envelope. participated in receiv- ing that assistance. I therefore conclude that the Board's Brescome principle must control this situation. Considering all of the foregoing, particularly the absence of any claim that the Brick & Clay Workers enjoyed majority support of the unit employees at any time since 1975. the ILGWU's clear majority support as evidenced by the authorization cards, and my conclusion that Respondent's unfair labor practices have prevented a fair election from being con- ducted in the foreseeable future even with the application of other remedial measures. I must further conclude that a bargaining order is warranted herein as the only way to effectively remedy the unfair labor practices. CON( IUSIONS OF LAW I. Respondents comprise a single integrated enterprise and are a single employer, engaged in commerce and in operations affecting commerce within the meaning of Sec- tion 2(2). (6), and (7) of the Act. 2. The ILGWU and the Brick & Clay Workers are both labor organizations within the meaning of Section 2(5) of the Act. 3. All shipping clerks, including local truckdrivers, em- ployed by Weather Vane at Olive Hill, Kentucky. excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute an appro- priate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On October 6, 1976. and at all times thereafter, the ILGWU was, and continues to be, the exclusive representa- tive of the employees in the appropriate unit found above tor the purposes of collective bargaining within the mean- ing of Section 9(a) of the Act. 5. By threatening employees that they would not he re- called from layoff because they had filed grievances under their union contract, and by interrogating emplo'ees con- cerning their union membership. activities, and desires and concerning the union membership. activities. and desires of their fellow employees. Respondents have interfered with. restrained, and coerced their employecs in the exercise of the rights guaranteed them under Section 7 of the Act. thereby violating Section 8(a)( I) of the Act. 6. By rendering aid, assistance, and support to the Brick & Clay Workers, Respondents have engaged in unftlir labor practices in violation of Section 8(a)(2) and (I) of the Act. 7. By discharing. laying off, or failing to recall employees from layoff because of their union membership. activity. and desires. Respondents have discriminated against them in regard to their hire or tenure of employment. in violation of Section 8(a)(3) and (I) of the Act. 8. By failing and refusing to recognize and bargain with the I LGWU as the exclusive representative of its employees in the unit described above, since October 23. 1976. the date upon which I have found it commenced its unlawful ac- tivity, Respondent Weather Vane has violated Section 8(a)(5) and ( I ) of the Act. 9. The unfair labor practices enumerated above are un- fair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 10. The unfair labor practices found in regard to Case 9 ('A 11990 have interfered with the employees' rights to a free and untrammeled choice in the election conducted in Case 9 RD- 754 on December 9. 1977. and have tainted the results (:f that election. 11. Respondents have not engaged in any unfair labor practices not specifically found herein. Tti RME-)DY It having been found that the Respondents have engaged in unfair labor practices in violation of Section 8(a)( ). (2). (3), and (5). it will be recommended that the Respondents be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondents discriminator- ily refused to recall July Erwin from layoff and laid off Keith Hicks, Tony Jones. Jerry Stevens, and Harold Wag- goner, for varying periods of time before recalling them. Respondents shall offer said Judy Erwin immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and shall make all of these employees whole for any loss of pay they may have suffered by reason of the discrimination against them. Any backpay found to be due shall be computed, with interest, in the manner prescribed in F W Woolworth Companyr 90 NLRB 289 (1950). and Florida Steel Corporation, 231 NLRB 651 (1977).' " " See, generally. Isis Plumbing & Heating (s. 138 NLRB 716 1962}. 445 DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD Because of the prevasive nature of the violations lfound, and in order to make effective for the employees the guar- antee of' rights contained in Section 7 of' the Act, it will be recommended that the Respondents cease and desist from in any manner infringing upon the rights guaranteed in that Section. Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in this case, it is recommended that: ORDER 9 The Respondent, Ralco Sewing Industries. Inc., and Weather Vane Outerwear Corporation, Inc., Olive lill, Kentucky. their officers, agents. successors, and assigns, shall: I. Cease and desist from: (a) Threatening employees with discharge in order to discourage them from filing grievances or engaging in other union or protected concerted activities. (b) Interrogating employees concerning their union ac- tivities, membership, or desires or concerning the union ac- tivities, membership, or desires of other employees. (c) Assisting, supporting, or interfering with the adminis- tration or activities of the Brick & Clay Workers or any other labor organization. (d) Discriminatorily laying off employees or refusing to recall employees from layoff because they engaged in union or protected concerted activities or in order to discourage union activities. (e) Refusing to bargain collectively with the ILGWU as the exclusive bargaining representative of the employees in the appropriate unit set forth above. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which will effec- tuate the purposes of the Act: (a) Offer Judy Erwin immediate and full reinstatement to her former position or, if that position is no longer avail- '9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102,48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. able, to a substantially equivalent position, without preju- dice to her seniority or other rights and privileges, and make Judy Erwin. Keith Hicks. Tony Jones. Jerry Stevens, and Harold Waggoner whole for any loss of earnings they may have suffered by reason of' the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying. all payroll records, social security payment records, timecards, person- nel records and reports, and all other documents necessary and relevant to analyze and compute the amount of back- pay due under this Order. (c) Upon request. bargain collectively with the ILGWU as the exclusive representative of the employees in the unit found appropriate herein, with respect to rates of pay, hours of employment, or other terms and conditions of em- ployment, and, if an agreement is reached, embody such understanding in a signed agreement. (d) Post at their plant and warehouse in Olive Hill, Ken- tucky, copies of the attached notice marked "Appendix.""' Copies of said notice, on forms provided by the Regional Director for Region 9. after being signed by a duly autho- rized representative of the Respondents, shall be posted by them immediately upon receipt thereof; and be maintained by them fbr 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered. de- faced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. II IS FURliIIER RI('0NIMMNI)II) that the complaints be dis- missed as to any allegations not found herein, and, 11 IS Ftl:AERtil Ri'(OMML:NItI) that Case 9 RD 754 be remanded to the Regional Director for Region 9, that the election conducted on December 9, 1977, he set aside, and that the Regional Director conduct a rerun election at such time as he deems the circumstances permit a free choice on the issue of representation. 20 In the event that this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading, "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 446