Conso Fastener Corp.

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fowler testified that, during her conversation with Berton early in June , he said that if the Union got in there would be no steady work , there would be strikes, and the plant would be in an uproar; also, that Montgomery was opposed to -the Union, and if it got in he would cut out the bonus : there might be a 11/2-cent raise, but no bonus. She asked whether she could be laid off for working for the Union, and Ber- ton replied in the negative . Concerning the bonus threat , while I have not credited Berton's denial where Miller testified to the contrary , and while Berton's testimony was not uniformly impressive, the quality of Fowler's is not such as to warrant re- jection of Berton's denial that he made that threat. As for the reference to lack of steady work because of strikes and trouble, if a prediction of failure of a strike should it occur is privileged, and it is,6 a prediction that work would not be steady because of strikes is likewise privileged . Here again the events would be set in motion by the Union, not the Company.e. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company, set forth in section II, above, occurring in connec- tion with the operations described in section I, above, have a close , intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. N. THE REMEDY Having found that the Company engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company , by a threat against those who would try to bring a union in, and by a direction that an employee report anything that she heard about the Union, interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. I shall therefore recommend that it cease and desist therefrom and from any like or related conduct. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Rubber; Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By threat and direction that an employee report, concerning union affairs or activities, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] 8 Gazette Pubtishtng Company, 101 NLRB 1694, 1703. 6 Footnote 3, supra. See also Nash-Finch Company, 117 NLRB 808. Conso Fastener Corporation and Textile Workers Union of Amer- ica, AFL-CIO Conso Fastener Corporation and Minerva Den Haese. Cases Nos. 4-CA-1492 and 4-CA-I482. April 22, 1958 DECISION AND ORDER On September 27, 1957, Trial Examiner C. W. Whittemore 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 120 NLRB No. 74. CONSO FASTENER CORPORATION 533 therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dis- missed with respect to such allegations. Thereafter, the Respondent, the General Counsel, and the Union filed exceptions to the Intermediate Report and supporting briefs. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this proceeding,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner , with the modifications and additions noted below. 1. The Trial Examiner found, and we agree, that the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act, by interrogating employees regarding their union activities, threatening employees with economic reprisals because of their union activities,3 promising benefits to employees if they withdrew from such activities, and promulgating or invoking discriminatory rules concerning union discussion and the distribution of union literature on company property during nonworking time. 2. Like the Trial Examiner, we find that the Respondent, in viola- tion of Section 8 (a) (3) and (1) of the Act, discriminatorily refused to reemploy Minerva Den Haese on October 29, 1956. We also agree with the Trial Examiner's recommendation that the Respondent make Den Haese whole for any loss of pay she may have suffered, by reason of the Respondent's discrimination against her, between that date and February 11, 1957, at which time she was reemployed. 3. We agree with the Trial Examiner's conclusion that the Respond- ent did not refuse to bargain with the Union, within the meaning of Section 8 (a) (5) of the Act, because the record evidence is insufficient to support the necessary subsidiary finding that the Union in fact represented a majority of employees when the request to bargain was made on September 4, 1956. Our finding, however, is also based upon the additional evidence discussed below. 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 [Chairman Leedom and Mem- bers Bean and Jenkins]. 3 The requests of the Respondent and the Union for of al aigument are her eby denied as, in our opinion , the record, exceptions , and biiets adequately present the issues and positions of the parties 3 The Tual Examiner found, sutei alia, that the Respondent's plant manager unlawfully threatened the employee group which met with him on September 4 that he would close the plant if the Union was successful in its organizational campaign . We also find unlawful his similar threats made to groups of employees on the second and third floor of the plant. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found that on the day the Union requested the Respondent to bargain, there was a maximum of 69 employees in the appropriate unit.4 At the hearing, the General Counsel sub- mitted 38 authorization cards, 34 of which the Trial Examiner accepted as valid. One of the four cards rejected by the Trial Examiner was signed by Stella Ferro, who he found was not an employee on the date the Union requested recognition from the Respondent. The Trial Examiner, however, inadvertently included Ferro in his computation of the total number of employees in the unit and therefore failed to reduce the maximum employee complement to 68. In addition to the 4 cards which the Trial Examiner rejected, the record reveals that the cards of at least the following 3 other employees should also have been rejected because of the inconsistenciPe and discrepancies in the testimony of these employees. Annette Lorino: The union representative stated that he had in- serted the date of August 26, 1956, on the authorization cards of Lorino and Dolores Kulinski. Lorino aditted that she did not date her card, but testified that she signed it before September 4, 1956, the date of the Union's request to bargain, in the presence of Kulinski at a time when the latter was working in the plant. Kulinski testified that about 1 week after she was employed by the Respondent, Lorino signed her card in Kulinski's presence. Kulinski's card was rejected by the Trial Examiner because the General Counsel conceded that she was not in the Respondent's employ prior to September 4, 1956, and that her card should not be considered. Since Lorino and Kulinski both stated that Lorino signed her card When Kulinski was working in the plant and since Kulinski was not employed before September 4, Lorino could not, as she testified, have signed her card prior to that date, but must have done so at least a week thereafter. Therefore, Lorino's card must be rejected as having been signed after the Union's request to bargain. John Malloy: This employee stated that he signed his authoriza- tion card before September 4, 1956, and his card was dated "8/ /56." However, Malloy also testified that he signed his card about 4 weeks after he was employed and the record shows that lie was hired on August 27, 1956. This would mean that he signed the card the third week in September, a considerable period of time after the critical date of the Union's request to bargain. We believe that because of the patent conflict in Malloy's own testimony, the General Counsel has * The Trial Examiner noted that on the basis of the evidence in the record, it was diffi- cult to determine whether the duties of employee Rita Taylor were such that she should be included in, or excluded trom , the unit. If she were excluded , the total complement would have been 68 employees rather than 69. Because of his ultimate determination, the Trial Examiner found it unnecessary to resolve this question and for purposes of initial calculation he included Taylor in the unit. We shall also do so. CONSO FASTENER CORPORATION 535 failed to sustain the burden of proving the validity of his card and therefore it must be rejected. Jacqueline Stokes : This employee testified that she did not date her card, but thought she signed it in October. In response to a question asked by the General Counsel as to whether she had signed the card before or after Labor Day, 1956, she replied that she did not know. The General Counsel did not offer her card in evidence at this time. Later, Stokes was recalled by the Charging Party and stated at one point that she signed the card prior to Labor Day and, at another, that she was not certain. Stokes also testified that employee Helen Puchalski saw her sign the card and that another employee, Nancy Fletcher or Fetzer, also signed at the same time. Puchalski, who was active in distributing cards and was 1 of the 4 employees who notified the Respondent that they were members of the Union, did not re- member receiving a card from Stokes and the General Counsel did not introduce any card signed by Fletcher or Fetzer. At the conclusion of Stokes' testimony, the General Counsel offered her card in evidence. In receiving the card in evidence the Trial Examiner stated that the "witness did testify she signed it, but could not recall when. . . . It may not have sufficient weight to be counted toward the majority." In our opinion, the testimony of Stokes is so vague and inconclusive as to cast serious doubt upon whether she signed her card before September 4, 1956. Accordingly, we believe that the General Counsel has failed to sustain the burden of proving the validity of her card and it must be rejected. In view of the foregoing and the entire record, which reveals a lack of substantial evidence to support a conclusion of timely designa- tion of the Union by Lorino, Malloy, and Stokes, Nye find that their cards can not be counted,5 thus reducing the Union's alleged ma- jority showing of 31 valid cards out of a maximum employee com- plement of 68. As the General Counsel has failed to prove that the Union was designated as the majority representative of the em- ployees in the appropriate unit when the request to bargain was made,' we find, as did the Trial Examiner, that the Respondent did not violate Section 8 (a) (5) of the Act. We shall, therefore, dis- miss the complaint insofar as it alleges an unlawful refusal to bargain with the Union. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National 5 See Cooper's, Inc, (of Georgia), 107 NLRB 979. 9 Even assuming, without deciding, the validity of the designations of employees Enoch and Vograf, and the ineligible status of Rita Taylor (see footnote 4, supra), as alleged by the General Counsel and the Union, a majority designation of the Union has not been established, as the record would then show that the Union represented 33 out of 67 employees. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board hereby orders that the Respondent, Conso Fastener Corporation, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in, and activities on behalf of, Textile Workers Union of America, AFL-CIO, or any other labor organization, by discharging, refusing to reemploy, or in any other manner discriminating against its employees in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. (b) Interrogating its employees concerning their membership, af- filiation, or sympathy with the above-named or any other labor or- ganization, in a manner constituting interference, restraint, or coer- cion in violation of Section 8 (a) (1) of the Act. (c) Threatening its employees with reprisals because of their union activities, or promising benefits if they withdrew from such activities. (d) Promulgating or invoking discriminatory rules concerning union activities, including the distribution of union literature, on company property and during nonworking time. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist the above-named 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 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make Minerva Den Haese whole for any loss of pay she may have suffered by reason of the discrimination against her, in the man- ner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board and its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of back pay due under the terms of this Order. (c) Post at its plants in Philadelphia, Pennsylvania, copies of the notice attached hereto marked "Appendix." I Copies of such notice, 7 In the event 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." CONSO FASTENER CORPORATION 537 to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent's authorized representa- tive, be posted by the Respondent immediately upon receipt thereof and be maintained by the Respondent for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent violated Section 8 (a) (5) of the Act. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in, and activities on behalf of, Textile Workers Union of America, AFL-CIO, or any other labor organization, by discharging, refusing to reem- ploy, or in any other manner discriminate against our employees in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8 (a) (3) of the Act. AVE WILL NOT interrogate our employees concerning their mem- bership in, affiliation or sympathy with, the above-named or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act; threaten our employees with reprisals because of their union activities, or promise them benefits if they withdraw therefrom; or promulgate or invoke discriminatory rules concerning union activities, including the distribution of union literature on com- pany property and during nonworking time. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right of self-organiza- tion, to join or assist the above-named or any other labor organi- zation, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for 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 mem- 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership in a labor organization as it condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL make Minerva Den Haese whole for any loss of pay she may have suffered by reason of our discrimination against her. All our employees are free to become or refrain from becoming members of the above -named or any other labor organization , except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. CoNso FASTENER CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served in each of the above-entitled cases, an order consolidating the cases, a complaint and notice of hearing thereon having been issued and served by General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent Corporation, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) (3) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in Philadelphia, Pennsylvania, on June 24, 25, 26, 27, 28, and July 22 and 30, 1957, before the duly designated Trial Examiner. In substance the complaint alleges and the answer denies that the Respondent: (1) on various occasions between September 1956 and February 1957, threatened employees with economic reprisal because of activities on behalf of the Union or made promises of benefit if such activities were abandoned; (2) on September 4, 1956, refused to bargain collectively with the Charging Union although that labor organization represented a majority of its employees in an appropriate unit; (3) refused to recall employee Minerva Den Haese in the proper order of her seniority after an economic layoff on September 4, 1956, in order to discourage member- ship in the Union; and (4) by such conduct interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. At the hearing all parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. General Counsel argued on the record, argument was waived by counsel for the Respondent. A brief has been received from the latter and has been carefully considered. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Conso Fastener Corporation is a New York corporation, with a principal place of business and a manufacturing establishment in Philadelphia, Pennsylvania, where it is engaged in the manufacture and sale of textile trimmings. It is a wholly owned subsidiary of Consolidated Trimming Corporation, also a New York corporation. During the year 1956 the Respondent sold and shipped goods from its Philadelphia plant, valued at more than $50,000, to locations, persons, and other business con- cerns outside the Commonwealth of Pennsylvania. The Respondent is engaged in commerce within the meaning of the Act. CONSO FASTENER CORPORATION 539 II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America , AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and issues The major issue which General Counsel seeks to have remedied is the alleged refusal of the Respondent to bargain with the Union at a time when that labor organization represented a majority of its employees in an appropriate unit. There is no dispute as to the fact that the Union sought to bargain and that the Respondent refused-the question for resolution here is whether or not the refusal violated the Act. The refusal occurred under the following circumstances , briefly summarized. Self-organization among the Respondent's employees, numbering about 70, began in the latter part of August 1956 . Minerva Den Haese assumed the employee leader- ship in the campaign . Upon her telephoned request, James Coyle, an international representative of the Union, called at her home and gave her a number of applica- tion cards for distribution among other employees . Den Haese, in turn, gave cards to a few fellow employees for similar distribution and solicitation . J. J. Madden thus distributed cards among the machine shop employees . During the last week of August, Den Haese, Madden, and 2 other employees went to the union office and turned over to Coyle some 19 or 20 signed cards. During the afternoon of August 31, the last working day before Labor Day, ma- chines were shut down and supervisors gathered employees on the second floor of the plant, where Plant Manager Erhardt told them, according to the undisputed testi- mony of Helen Puchalski, "Some people in here are very gullible in some things that are going on around here. There are cards being distributed and all. These people are promising you paid holidays and things like that." He also said , accord- ing to the undisputed testimony of Den Haese , "This isn't Nazi Germany ; you don't have to carry cards around with you." He further told them, in effect, that although until then he had been unable to give them paid holidays, he would pay them for Labor Day and would try to pay them for future holidays. Apparently disturbed by Erhardt's remarks about cards, Den Haese sought advice from Coyle during the following weekend. He suggested that she and others go directly to Erhardt, in a group. On Tuesday morning, September 4, the next working day, employees Den Haese, Helen Puchalski, Theresa Johnson, and Joseph Burton went to Erhardt's office, where the manager was soon joined by Supervisors Lawrence Hagen and Betty Paskill. In substance, the interview proceeded as follows: Den Haese told him they had all signed cards in the Union and were afraid of being fired. Erhardt asked her if she was the spokesman for the group and she replied that they had asked her to speak for them. Erhardt said "nobody had come to him about any Unions," and he "didn't want any Union in there." He asked her why she wanted a union and reminded her that he had said he would try to give them paid holidays. He turned to Johnson and asked her why she had signed a card. Hagen told her he was "very much surprised at her," and Paskill told her that her uncle "had had a lot of trouble" with a union. They discussed holidays, insurance, and raises. As to raises, Erhardt told the girls they should have asked their floorlady, Betty Paskill, pointing out that he was too busy to be concerned with such matters. Just before the employees left, Erhardt told them that he did not want a union in the plant and would rather close the plant down or quit his job. He added that he knew there were more than four who had signed cards, but that if the Union got into the plant he wouldn't want them around there-it would be like "a slap in the face" to him.' Later the same day, September 4, Coyle and another union representative went to Erhardt's office. Although details of the discussion are in dispute and will be con- sidered in another section , in substance there is agreement that the union representa- tives asked Erhardt to recognize the Union as bargaining agent and that Erhardt declined. Shortly before the end of the first shift the same day, Paskill assembled all employees of the department in which Den Haese worked . Erhardt came to them and announced that although the action he was about to take had nothing to do 1 The quotations are from the undisputed testimony of the employees present. Erhardt's version of the interview differs in respects , but he denied none of the specific statements attributed to him in their testimony. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with what "has been going on around here," according to Den Haese's testimony, he was going to have to lay them all off for lack of work. All in that department, except Supervisors Paskill and Mager , were laid off at the close of the shift. Despite the circumstances of this sudden layoff of many employees-the same day that Erhardt had told the group of four employees that he might take drastic action if the Union came into the plant and soon after he had declined to recognize the Union-the complaint does not allege that the layoff was discriminatory and to discourage union activity. Since the issue was not litigated , no finding as to the actual reason for the action will be made. There is an issue, however, as to the belated recall of Minerva Den Haese. As will be discussed in a later section , although other employees were recalled shortly after September 4, Den Haese was not reinstated until February 1957. Before turning to resolution of the separate issues of refusal to bargain and refusal to recall Den Haese , the Trial Examiner now concludes and finds that by his above-quoted interrogation and threats of reprisal to the four employees visit- ing his office on September 4, Plant Manager Erhardt interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. Specifically included among such remarks are : ( 1) his interrogation of Johnson as to why she had signed a union card; (2) his threat to close down the plant or quit his job if the Union got into the plant ; and (3 ) his declaration that if the Union got in he would not want the four of them around there-it would be "like a slap in the face." 2 B. The refusal to reinstate Den Haese That Plant Manager Erhardt well knew at the time of her layoff on September 4, that Minerva Den Haese was the leader among his employees in the union mem- bership campaign is established by undisputed evidence . As noted above, when she appeared with others at his office that morning he asked her if she was the spokes- man and she admitted the fact. After lunch the same day, and before the layoff, it is also undisputed that Erhardt came to her while she was at her work of inspecting and told her that since the meeting that morning he had looked into the records and found that she had been making good money while she had been on piecework . She pointed out that she had not been on piecework all the time but had been pushed from one job to another. He then asked her why she didn't quit, why she didn't "get out," if she didn't like it there. She insisted that she did like her work but thought she should have more money. She then reminded him that he had suggested that morning that she bring up the matter of raises, whereupon he accused her of having a "belligerent attitude." Although as a witness, Erhardt said that he recalled employees after the layoff in order of their seniority, his own testimony makes it clear that even if in general he followed the seniority principle , he made an exception in the case of Den Haese. Others were recalled many weeks before she was finally recalled on February 11, 1957, and after she had filed a charge with the Board. While In Haese was experienced and capable in jobs other than that of inspect- ing, according to the testimony of her supervisor, Paskill, the Trial Examiner does not consider that the record clearly reveals a precise date when, in proper order of seniority, she might have been recalled to such other jobs. The record does estab- lish, however, that a new employee was hired on October 29. 1956, to perform the inspector's job-a position which Den Haese had held at the time of her layoff. The Trial Examiner concludes and finds that, by failing to recall Den Haese on October 29, 1956, the Respondent discriminated in the reemployment of that employee. The Trial Examiner is convinced by the preponderance of credible evidence that Erhardt was motivated in his failure to recall Den Haese by his resentment against her union activities and by his intent to discourage further activities on behalf of the Union. His excuse for the failure to recall her on October 29-to the effect that he did not recall her then because she had said on September 4 that she did not like being "pushed around"-was plainly an inapplicable afterthought. As her uncontradicted testimony shows, her reference had been-not to the inspector's job-but to transfers on piecework jobs. By its discriminatory failure to recall Den 2 The Trial Examiner notes that while Den Haese quoted Erhardt as saying, "You know, if the Union doesn't get in here , I won't want you people in here," both Puchalski and Johnson quoted him as saying that he would not want them there if the Union did or should get in there Whether the provision was stated in the affirmative or negative, the threat would have meaning, and in either event Erhardt 's testimony contains no specific denial. CONSO FASTENER CORPORATION 541 Haese on October 29, for the purpose of discouraging union membership and activity, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. C. The refusal to bargain As noted above, there is no dispute that on September 4, 1956, Union Representa- tive Coyle asked Erhardt to recognize and bargain with the Union and that Erhardt declined. There is dispute, however, with respect to two relevant points: (1) whether or not Coyle claimed to represent, on that occasion, the "production and maintenance" employees; and (2) whether or not the Union actually represented a majority of the employees in that unit on the day of the demand. As to the first point, in essence, Coyle's testimony, supported by that of another union representative, Miller, is that he specifically claimed to represent a majority of the production and maintenance employees. Erhardt's unsupported testimony, on the other hand, is to the effect that Coyle claimed to represent "a majority of our employees," without limiting the claim to the production and maintenance groups. The Trial Examiner cannot credit Erhardt's unsupported testimony on this point. Coyle's testimony, supported in part by that of the other union repre- sentative, is to the effect that at the same interview, Erhardt said that he would fight to keep the Union out, would not recognize it under any circumstances, even if the Board held an election, and that he would quit before he would recognize a union in the plant. Erhardt's testimony does not deny that he made such state- ments at this interview. It is concluded and found that on September 4 repre- sentatives of the Union asked for recognition as the bargaining agent for the Respondent's production and maintenance employees. The complaint alleges and the answer denies (on the ground of lack of knowl- edge or information) that an appropriate unit of the Respondent's employees, within the meaning of Section 9 of the Act, consists of all production and maintenance employees at the Philadelphia plant, exclusive of office clericals, guards, and super- visors, as defined by the Act. At the hearing, the Respondent offered no evidence on the point and made no claim that such a unit was inappropriate. Through Coyle it was established that a unit, as thus described, is customarily represented by the Union. Countless Board decisions have found a unit of this general descrip- tion to be appropriate. It is therefore concluded and found that the above-described unit is appropriate and was appropriate on September 4, 1956. As to the question of the Union's majority representation in the above-described appropriate unit. Before the hearing the Respondent submitted to a Board agent a list of all its employees who, it claimed, were on its payrolls during the week beginning September 3, 1956. The list contains 88 names. General Counsel claims that one name should be added to that list-Dora Cooper, a position which the Respondent contests. In summary, Cooper's testimony is undisputed that she had worked regularly throughout the month of August, was out sick on September 4, and just before 5 o'clock that afternoon, was called by Erhardt's secretary and told that she need not come in to work the next day, but that Paskill would call her and let her know when to come in. Cooper worked in a department which, with the exception of supervisors, was entirely laid off that day. It is likewise undisputed that for the next 30 weeks Cooper received unem- ployment compensation as a laid-off employee of the Respondent, and that in No- vember she called Erhardt concerning her recall. When she told the plant manager that she understood that another girl had been transferred to her job, Erhardt pointed out that the other girl had 5 years' seniority at the plant, and suggested that she try to get herself another job. Her uncontradicted testimony establishes, and it is found, that her layoff on September 4 was of a temporary nature, and that she was given so to understand. There is no credible evidence in the record to support Erhardt's claim that when he had his secretary call Cooper, on September 4, he did not intend to recall her because her work had been unsatisfactory. And in any event, it is clear that earlier that same afternoon, at the time the Union made its claim of majority representation, no action had been taken by Erhardt to lay off Cooper or any other employee. The Trial Examiner concludes and finds that Cooper's name should be added to the list of employees on the payroll involved. The total is thus increased to 89. General Counsel and counsel for the Respondent agreed at the hearing that the names Harriet Sharkey and Thelma Merin should not have been included on the submitted list, since they had ceased employment either in August or before August. This reduces the total to 87. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel also agreed that employee David Fletcher was not hired until September 5, and so was not on the payroll on the date of the demand and claim of majority. The list is thus reduced to a total of 86. General Counsel contends that the list, as submitted by the Respondent, contains the names of nine supervisors who should be excluded from the total. In substance the Respondent claims that the only supervisor in the plant was Erhardt himself, and at the most none of the nine were more than "group leaders," possessing no supervisory authority. Before turning to the specific individuals, the Trial Examiner believes it appropriate to voice his opinion that it would be wholly unreasonable to believe that Erhardt was the only supervisor in a plant occupying two floors and with a payroll the size of that submitted. Particularly is this so in the light of undisputed testimony that when the group of four employees raised the question of raises on the morning of September 4, Erhardt told them to see Paskill about such matters. First, as to Betty Paskill, Carl Brosias, and Lawrence Hagen-undisputed testi- mony of various employees establishes the fact that each of these 3 exercised super- visory powers in their respective departments. Furthermore, Erhardt's own testi- mony makes it plain that both Hagen and Brosias were, in September, representa- tives of management, since he admitted that when he was away from the plant, it was run by these two and his secretary. Also, as noted above, it was undisputed that he referred four employees to Paskill for raises on September 4, and that both Paskill and Hagen were with him, voicing management's opposition to the Union, that morning. It is concluded and found that these three individuals are supervisors within the meaning of the Act, and that their names should be excluded from the list. The total is thus reduced to 83. Next, as to Joseph Mager, Marie McDaniels, Anne Arthur, Ruth Seibold, John Cox, and James Richards. That all of these six individuals serve as supervisors and management representatives in their several departments and on their respective shifts is made plain by the credible portions of Erhardt's own testimony, despite the fact that he denied their possession of supervisory powers. Erhardt admitted that on frequent occasions he would call all of the above named, except Cox and Richards, into the office for consultation concerning the quality of work and production of employees. The testimony of employees is undisputed that a certain bell signal in the plant calls these supervisors to the office, and that such a signal called them all to the office on September 4, immediately after Den Haese and others had visited Erhardt. Erhardt also admitted that he informs each of the above named what he wants produced in the plant, and that they draw the necessary materials and distribute the work to the employees. Contrary to his claim that none of these individuals could transfer employees from machine to machine without his express permission, the Trial Examiner finds, on the basis of more credible testimony of employees actually involved in such transfers, that they not only possessed but exercised the authority to make such transfers. They prepare and maintain records of employees' production. The testimony of Mary Brash is undisputed that before she was hired she was sent to Ruth Seibold for interview. Also uncontradicted is the testimony of Marie Wiedemer that on one occasion Seibold criticized her work and threatened to let her go. Seibold was introduced as "floor lady" to new employees by Hagen. It is undisputed that Cox and Richards occupy the same position and exercise the same authority on their shifts, respectively the second and third, as does Hagen on the first shift. Although there are fewer employees on each of the two later shifts, it is clear that Cox and Richards are in full charge of them, since Erhardt admitted that he was not at the plant during these shifts. On the basis of the credible evidence, the Trial Examiner concludes and finds that each of the above-named six individuals is a supervisor within the meaning of the Act, and should be excluded from the appropriate umt.3 Thus the total is reduced to 77. General Counsel also seeks to have excluded from the total the names of two individuals conceded to have been in the armed services on the critical date of September 4, David Hayes and John Kaizar. The Trial Examiner believes that General Counsel's position is well taken and that the Board's principle, set out in Supersweet Feed Company, Inc., 62 'NLRB at 55, is still controlling . There the Board said, in part: ... we conclude that only those employees who are presently at work and in a pay status should be included in the computation for determining whether the 3 Aniong other cases, General Counsel cites • Massachusetts Mohair Plush Company, 115 NLRB 1516, 1522, and 1524; J. T. Flagg Knstt3ng Company, 115 NLRB 211, 216; United States Gypsum Company, 116 NLRB 1771, 1774; and Syracuse Rendering Company, 112 NLRB 163, 164. CONSO FASTENER CORPORATION 543 Union has been designated by a majority. . . . To hold otherwise would mean that in no plant where a majority of the employees are in the armed forces could the employees working in the plant compel their employer to bargain with a representative designated by them. Both of the above named will be excluded. The total is reduced to 75. General Counsel would also have excluded from the list six individuals referred to in the record as "home workers." They are: Mary Hopkins, Emma Guba, Ida May Schroeder, Lillian Karlovac, Mary Harrison, and Helen Kopczynski. The Trial Examiner believes that the Board's position as to such workers, set out in Terri Lee, Inc., 103 NLRB at 996, is here controlling. Evidence in this record establishes that all six of the above named function in the manner described in the cited case: These employees work in their homes without supervision, performing the neces- sary sewing operations in the manufacture of doll garments. They pick up the materials at the plant and deliver the doll garments in finished form. The only control exercised over the manufacture of the doll garments is the inspection of the finished product. As the interests and conditions of employment of the home-workers are different from those of the production employees in the plant, we shall exclude them from the unit. The six will be excluded. The total is thus reduced to 69. Finally, General Counsel would have excluded one other employee, Rita Taylor. The evidence is clear that at the time of the hearing Taylor was an office clerical worker, and would be excluded from any present unit. On September 4, 1956, how- ever, the critical date, the testimony concerning her duties will support only a find- ing that she was a part-time office clerical, and that about half the time she was performing production clerical work. As General Counsel himself admitted, her position "is so indeterminate" that it is difficult to find, on the basis of evidence in the record, whether she should be included or excluded from the unit. However, in view of the ultimate determination of the majority representation, appearing below, it appears unnecessary to resolve the question. For purposes of initial calculation, her name will be included in the unit. The total, then, remains at 69. At the hearing General Counsel brought forward 38 union application cards. The Trial Examiner concludes and finds that competent and credible testimony establishes that 34 of these cards were signed by employees, in the appropriate unit and on the payroll as of September 4, and that by these cards they properly designated the Union as their bargaining agent. The cards of four individuals are questioned: Stella Ferro, Frances Enoch, Dolores Kulinski, and Harry Vograf, Jr. During the hearing, when summing up his claim of majority, General Counsel in effect con- ceded that the cards of Enoch and Kulinski should not be considered. Neither will be counted. Although General Counsel apparently would have the card of Vograf counted, he did not offer it in evidence. Vograf identified the card exhibited to him as one signed by him after he had been discharged, after Labor Day, in 1956. Counsel for the Union thereafter placed the card in evidence. Vograf's testimony about this card, however, is so confused that the Trial Examiner can place no re- liance upon it. It will not be counted in determining the majority question. Although General Counsel contends that Ferro's card should be counted, the preponderance of credible evidence, including a company check, establishes that she was perma- nently laid off and removed from the payroll on August 31, 1956, before the critical date of September 4. Ferro herself, as a witness, admitted that she was "laid off, paid in full," the night of August 31. While it is true that her name was included in the list submitted some months later to a Board agent, purporting to contain the names of all employees on the payroll beginning September 3, the Trial Examiner does not believe that the mere presence of her name on that list is sufficient to contro- vert the fact, revealed by her own testimony and company records, that she actually was removed from the payroll on August 31. In summary, the Trial Examiner concludes and finds that none of the four cards in question can be counted in determining the majority issue. There are but 34 signed cards which may be properly used in the calculation. Thirty-four is not a majority of 69. Nor is it a majority of 68-a total reached if Rita Taylor were to be excluded from the appropriate unit. It is therefore concluded and found that on September 4, 1956, when the Union sought recognition by the Respondent, it did not in fact represent a majority of employees in an appropriate unit. It follows that the Respondent did not refuse to bargain with the Union within the meaning of Section 8 (a) (5) of the Act. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Restraint and coercion after September 4 Despite Erhardt's specific denials, and upon the more credible testimony of em- ployee J. J. Madden, the Trial Examiner finds that in December 1956 Erhardt came to Madden while the latter was at work and told him that he was getting a full report on everything going on at union meetings and that he knew that he was in- volved in such activities. Erhardt warned him that if he did not stop such activities, he was thinking of laying him off, but if he would stop, he would consider "moving" him "ahead." 4 In January 1957 Supervisor Hagen came to the doorway of the ladies' washroom and called in to the female employees, according to the undisputed testimony of employee Kaczmarczyk, "There will be no talking about a union in here, you are on Company grounds. There will be no exception." On the morning of February 12, the day after she had been reemployed, Den Haese left 2 or 3 pieces of union literature on a table in the ladies' restroom before time to go to work. She brought a few more in at lunch hour. Later that afternoon employees were assembled and, according to the credible testimony of employees present, Erhardt warned them that any employee who passed around union litera- ture or was heard talking about the Union in the plant would be fired. When Den Haese asked if they would not be permitted to talk about the Union on their own time, such as lunch time, Erhardt told them they were not "allowed to talk it at all in there," according to Den Haese's credible testimony. Her testimony is undisputed that no such rule had ever before been announced or posted, and that solicitations for nonunion purposes in the plant were common. It is concluded and found that the rule voiced by Erhardt on February 12, was discriminatory and designed to discourage union membership, and that by voicing this rule, by Erhardt's threats of reprisal and promises of benefit to Madden, and by Hagen's discriminatory warning to employees in January 1957, the Respondent inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent, in order to discourage membership and activity in the Union, discriminatorily refused reemployment to Minerva Den Haese from October 29, 1956, to February 11, 1957, the Trial Examiner will recommend that the Respondent make her whole for any loss of pay she may have suffered because of the discrimination against her by payment of a sum of money equal to the amount she normally would have earned as wages during that period, such back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth, 90 NLRB 289. The Respondent shall, upon request, make available to the Board or its agents payroll and other records to facilitate the checking of the amount of back pay due. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated . It will, therefore, be recommended that the Respondent cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, AFL-CIO , is a labor organization within the meaning of Section 2 (5) of the Act. 4Not only did Madden impress the Trial Examiner as the mole credible witness as to this above-described incident, but the Trial Examiner cannot ignore previously found facts as to Erhardt's antiunion iemarks and conduct, as to which the evidence is undisputed. BOOTH AND FLINN COMPANY 545 2. By discriminatorily refusing to reemploy Minerva Den Haese , in order to dis- courage membership and activity in the above-named labor organization, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with , restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not refused to bargain within the meaning of Section 8 (a) (5) of the Act. [Recommendations omitted from publication.] Booth and Flinn Company and John J. Testa and Joseph F. Scarpello Local Union 825, International Union of Operating Engineers, AFL-CIO and John J. Testa and Joseph F. Scarpello . Cases Nos. 4-CA-1466 and 4-CB-350. April 22,1958 DECISION AND ORDER On April 26, 1957, Trial Examiner Louis Plost issued his Interme- diate Report in the above-entitled proceedings, finding that the Re- spondents, namely, Booth and Flinn Company, hereinafter called the Company, and Local Union 825, International Union of Operating Engineers, AFL-CIO, herein called Local 825, had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative ac- tion, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices as alleged in the com- plaint, and recommended that these particular allegations be dis- missed. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report, together with supporting briefs. 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 Rodgers, Bean, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Interme- ' Duiing the course of the hearing , the General Counsel offered into evidence the con- stitution of International Union of Operating Engineers , AFL-CIO, hereinafter called the International , and the bylaws of Local 825, to show, in part , that the Company 's master mechanic on the New Jersey side of the project was also acting as an agent for Local 825 The Tiial Examiner rejected these exhibits . The General Counsel appealed this ruling to the Board, and, on March 27, 1957, the day after the hearing closed , the Board reversed the ruling of the Trial Examiner , without prejudice to the right of the Trial Examiner in 120 NLRB No. 75. 483142-59-vol 120-36