Palette Sample Card Co., Inc.

70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Palette Sample Card Co., Inc . and Local 413, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, AFL- CIO and Local 222, International Production , Service and Sales Employees Union. Cases Nos. 2-CA-7199 and 2-CA-7303. November 8, 1961 DECISION AND ORDER On June 6,1961, Trial Examiner Thomas A. Ricci issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that such allegations be dismissed. Thereafter the Respondent and the General Counsel filed exceptions to the Inter- mediate Report and supporting briefs. The Board 1 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 the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with certain modifications of and addi- tions to the Order in paragraphs as appear therein. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Palette Sample Card Co., Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Assisting or contributing support to Local 222, International Production, Service and Sales Employees Union, or any other labor organization. (b) Recognizing and contracting with Local 222, International Production, Service and Sales Employees Union, as the bargaining representative of its employees unless and until said labor organization shall have been certified as such representative by the Board. (c) Performing or giving effect to its February 1960 agreement with Local 222, International Production, Service and Sales Em- 1 Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. 134 NLRB No. 13. PALETTE-SAMPLE CARD CO., INC. 71 ployees Union, or to any extension renewal or modification thereof, or to any superseding contract, unless and until the said labor organi- zation has been duly certified by the National Labor Relations Board as the exclusive representative of its employees; provided, however, that nothing herein shall require the Respondent to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its employees which the Respondent has established in the per- formance of this agreement or to prejudice the assertion by the em- ployees of any rights acquired thereunder. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Local 222, Inter- national Production, Service and Sales Employees Union, as the collective-bargaining representative of its employees, unless and until said labor organization shall have been certified as such representative by the Board. (b) Post at its New York City plant, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representative, be posted by said Respondent immediately upon receipt thereof, and be maintained by it for a period of 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. (c) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed to the extent that it alleges violations of the Act not found herein. 2In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order-" 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, we hereby notify our employees that : WE WILL NOT assist or contribute support to Local 222, Inter- national Production, Service and Sales Employees Union, or to any other labor organization. WE WILL NOT recognize or contract with Local 222, Interna- tional Production, Service and Sales Employees Union, as the bargaining representative of our employees, unless and until said labor organization shall have been certified as such representative by the Board. WE WILL NOT perform or give effect to our February 1960 agree- ment with said Local Union 222, or to any renewal, extension, modification, or supplement thereof, or to any superseding con- tract, unless and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of our employees; provided, however, that nothing herein shall require'us to vary or abandon any wage, hour, sen- iority or other substantive feature of our relations with our em- ployees which we have established in the porformance of any such agreement, or to prejudice the assertion by employees of any rights they acquired thereunder. WE WILL withdraw and withhold all recognition from Local 222, International Production, Service and Sales Employees Union, as the collective-bargaining representative of our em- ployees, unless and until said labor organization shall have been certified as such representative by the Board. WE WILL NOT order our employees to listen to solicitation by Local Union 222 agents, threaten to discharge or otherwise to discriminate against our employees in their employment for fail- ure to accept our choice of union, grant pay increases as benefits for union membership unwanted by our employees, or pay them for working time spent listening to union solicitations ordered by our management representatives. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes 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 requir- PALETTE SAMPLE CARD CO., INC. 73 ing membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. PALETTE SAMPLE CARD CO., INC., 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before the duly designated Trial Examiner in New York , New York, on April 17 thni 20 , 1961 , on consolidated complaint issued by the General Counsel', against Palette Sample Card Co., Inc., herein called the Company and the Respondent . The issues litigated were whether the Respondent had violated Section 8(a) (1), (2), and (3) of the Act. The initial charge in this proceeding (Case No. 2-CA-7199), was filed on Febru- ary 15, 1960, and accused the Respondent of having illegally assisted Local 222, International Production , 'Service and Sales Employees Union , herein called Local 222, in violation of Section 8(a),(2) of the Act. On March 31, 1960, the same Charging Party-Local 413, International Brotherhood of Pulp , Sulphite & Paper Mill Workers, AFL-CIO, herein called Local 413-filed a second charge against the Respondent (Case No. 2-CA-7303), reasserting unlawful assistance in favor of Local 222, and also alleging the illegal discharge of employee Ruby Edmond, in violation of Section 8(a) (3) of the Act. Separate complaints were issued pursuant to these charges on March 18 and April 18, 1960, respectively . Both the cases were settled by stipulation dated December 29, 1960, but the Respondent thereafter failed to comply with the terms and provisions of the settlement agreement . In conse- quence, the Regional Director , on behalf of the General Counsel, consolidated the two cases and on March 7, 1961, issued an amended consolidated complaint. It was on this complaint that the hearing before me took place. An affirmative defense, set out in the Respondent's answer and reiterated at the start of the hearing as a motion to dismiss part of the complaint , relies upon the dis- position of a third case (Case No. 2-CA-7418), also brought against the Respondent and filed by the same Charging Party, Local 413. The complaint in Case No. 2-CA-7418, issued on July 8, 1960, made no reference whatever to Ruby Edmond or to Local 222; its essential allegations were that the Respondent had illegally dis- charged one Ida Anthony and restrained and coerced its employees away from activi- ties in favor of Local 413. This latter case was settled by stipulation whereby the Respondent agreed to pay Ida Anthony $429 for loss of earnings (with the state- ment she did not desire reinstatement) and to post notices advising its employees it would not thereafter resort to illegal methods to prevent their continued adherence to Local 413. The agreed-upon posted notice also stated-in accordance with long- established Board requirement for remedial action in unfair labor practice cases- that the Respondent would not "in any other manner" violate the statute with respect to employee activities on behalf of Local 413, or "any other labor organization." The settlement stipulation in Case No. 2-CA-7418 was signed on August 15, 1960, and the Respondent complied with its terms . It now argues that the Respondent's action in posting the notice in settlement of that case precludes the Government from proceeding under the complaints in Cases Nos 2-CA-7199 and 2-CA-7303 on the grounds "either this is res adjudicata or they are attempting to split causes of action." In substance counsel for the Respondent contends that, having been re- quired to advise the employees that it would not "in any other manner" interfere with their statutory rights to choose unions freely, or to interfere with their basic rights with respect to "any other labor organization ," it necessarily cleansed itself, or dissipated the coercive effect of any other violations of the basic statutory rights which mieht have been committed at any time before the regular posting of that notice. He also argues that because part of the eventual remedy sought by the General Counsel in both proceedings is the same, it follows that the particular '74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offenses detailed in the various complaints must be viewed as of like kind and therefore not relitigable as prosecution upon prosecution. More precisely, he points to the fact that the instant proceeding, if successful, would end with a notice con- taining language, in part, phrased like that called for by the settlement stipulation in Case No. 2-CA-7418. I find no merit in this affirmative defense. Apart from the discharge of Ruby Edmond, which the Respondent, inconsistently, concedes may be litigated now although she was discharged at the time of the events which gave rise to Case No. 2-CA-7418, the essential burden of the consolidated complaint before me is aimed at the Respondent's conduct in imposing an unwanted union-Local 222-upon its employees. This matter not only involves a union nowhere mentioned in Case No. 2-CA-7418, but also alleges violation of Section 8(a)(2) of the statute, a different one from anything suggested in the other proceeding. Both the type of conduct and the legal issues involved, therefore, vary from the matters litigated in Case No. 2-CA-7418. More significant, however, is the clear fact that the parties-General Counsel and Respondent-necessarily understood that settlement of Case No. 2-CA-7418 was not intended to, and did not set at rest the charges contained in Cases Nos. 2-CA-7199 and 2-CA-7303. When the charge in Case No. 2-CA-7418 was filed, on June 2, 1960, the separate complaints in the other two cases had already been issued and were in the Respondent's hands. If the intent of the settlement reached in August in Case No. 2-CA-7418 had been thereby to wipe the slate clean against the Respondent, the pending proceedings would hardly have been ignored. All doubt that the Respondent well understood there was no such collateral effect of the settlement upon the other outstanding complaints, is removed by its written agreement 4 months later in December 1960 to take further steps-whatever they may have been-to satisfy the General Counsel's demands with respect to Cases Nos. 2-CA-7199 and 2-CA-7303. This proceeding went to hearing on the consolidated complaint issued in March 1961 only because the Respondent thereafter failed to take those steps which it had voluntarily agreed were proper long after the settle- ment now urged as a legal impediment to any further proceedings in the earlier charges and complaints. I find no element of undue or improper prosecution of charges by the General Counsel in this total situation. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Palette Sample Card Co., Inc., is a corporation duly organized under and existing by virtue of the laws of the State of New York. It maintains its principal office and place of business at Long Island City, in the city and State of New York, where it is engaged in the manufacture, sale, and distribution of sample cards and related products. During the Respondent's fiscal year 1959 it caused to be manu- factured. sold, and distributed from its New York place of business products valued about $400,000, of which products valued in excess of $50,000 were shipped by it in interstate commerce directly to States of the United States other than the State of New York. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and I find that Local 413 , International Brotherhood of Pulp, Sulphite & Paper Mill Workers , AFL-CIO, and Local 222, International Pro- duction, Service and Sales Employees Union, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The consolidated complaint sets out two major allegations; one is that the Re- spondent, acting mostly through Seymour Koehl, a high officer, dominant stock- holder, and general manager of the Respondent, attempted, with promises of bene- fits and other illegal methods, to compel the employees to become members of Local 222 against their will, extended recognition to that union although it never repre- sented a majority of the employees, and entered into -a collective-bargaining agree- ment with it; the second is that Koehl discharged Rubv Edmond because she impeded his efforts to entrench Local 222 in the plant. The evidence in support of the complaint was offered by a number of employee witnesses called by the General PALETTE SAMPLE CARD CO., INC. 75 Counsel. The General Counsel also called Koehl to the stand as a hostile witness, and elicited information from him on only a limited aspect of the case. Koehl was not questioned by the Respondent's counsel, who called no witnesses at all. The testimony of the General Counsel's witnesses thus stands uncontradicted. In defense the Respondent asserts that Edmond was not discharged but quit volun- tarily; it also defends generally on the ground that the General Counsel has failed to prove a prima facie case in support of the complaint. A. Violations of Section 8(a)2 and (1) of the Act I credit the testimony of the employee witnesses entirely with respect to the activi- ties of the Respondent's officials in exercising improper influence upon them to compel their acceptance of Local 222 as their collective-bargaining agent. Their testimony was not only uncontradicted, but was given in a forthright, candid, and en- tirely plausible manner. Most of the witnesses are still in the Respondent's employ and their testimony is also substantiated by the Respondent's admission that, despite the fact Local 222 never represented a majority of the employees, the Company invited the employees to the office to "inspect" the "contract" between that union and the Respondent. Accordingly I deem it unnecessary to detail the testimony relating to pertinent facts in terms of which individual witnesses referred to particular events. The following facts are clear on the entire record and I so find. For a number of years Local 413 tried unsuccessfully to organize the plant em- ployees. At least one election, held in the summer of 1959, was lost by that union. During the last few days of January 1960 representatives of Local 222 appeared at the premises and distributed their membership application cards. The evidence as a whole shows that very few employees signed up. Early in the morning of Feb- ruary 3, 1960-about 9:30 a.m.-two representatives of Local 222-Ladmer, its president, together with a delegate-entered the plant, shook hands with Koehl, and conferred with him 10 or 15 minutes in his office. When they emerged one of the union officials spoke to several girls at their machines and invited them to constitute a committee and to confer with him. Each of the employees so approached refused. Koehl then went to the machines of each of these-including Daisy Williams, Felicia Romez, Aggie Dowdy, Mary Benjamin, Ella Crawford, and Albert Lombardo-and ordered them to stop their machines and to go into the office to meet with the union agents. They obeyed, followed Koehl into the office, and remained there when, after a few minutes, Koehl left. For the rest of the morning Ladmer and his asso- ciate spoke to these employees of the benefits that would flow from being repre- sented by Local 222; he spoke of holidays, hospitalization insurance payments, sick pay, working glasses, and a $5 raise. There was some talk of these benefits being no different from what the Respondent had been doing for the employees without a union, and some asked what would happen if the employees refused to sign up with Local 222. Ladmer said it would be immaterial because he already had a majority, that "he had a contract signed with the boss," and could call a strike. Ladmer then called Koehl back into the room and detailed the proposed benefits he had discussed with the "committee." Koehl protested he could not add $5 to the wages. The general conference was resumed again in the office after lunch for an additional half hour. Here Koehl, after talking with his partner; Bremer, offered an immediate $3 weekly raise and $2 more a year later. Everyone then left the office and Koehl, speaking through the plant loud speaker, called all the employees to stop work and gather at one place in the plant. All 75 or 80 workers left their places, assembled in one area, and were addressed by Ladmer, who stood on a table. Koehl introduced Ladmer and then stood by to listen. Ladmer proceeded again to explain the benefits he had detailed in the morning, told the employees that a majority of them had already signed cards, and called for a show of hands on whether the employees were agreeable to the contract, including a $3 raise now and $2 more a year later. There was a general shout of "No," with only one employee agreeing; the scene was described by one witness as an "uproar." The employees questioned Local 222's majority status and protested these were benefits they al- ready had. Ladmer held the workers through an hour and a half, called for a second vote-with the same results-said he would be back at a future date, and closed with: "In the meantime, the boss is going to give you some cards. This is a card what is going to say your benefits is so. And I mill be back. In the mean- time, you can sign these cards and give it to him." The Respondent paid all employees for time spent in conference with Ladmer in the office and while listening to him speak out in the plant area. Within a few days the Respondent had a printed notice prepared which it posted at three locations about the plant, where they remained for several months. The notice read as follows: 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TO ALL EMPLOYEES: The Circular that has been Distributed to you has been put out by a Union that has been repeatedly held by The National Labor Relations Board NOT to Represent our Employees. It is an attempt by OUTSIDERS to mislead you to your injury. We have your Interest at Heart and have dealt only with a Union that Represents you. Your Union Contract is available for 'Inspection at all times, but BEWARE OF OUTSIDERS, not Recognized by The National Labor Relations Board. Their purpose is to use YOU as their spies for their OWN SELFISH INTEREST. THE MANAGEMENT. On the following Thursday, the first payday following the Ladmer speech, all the employees reecived a $3 raise in their weekly pay. Daisy Williams asked her fore- man, Pedro Davila (called Manos), why the raise, and Davila replied: "You are in the Union." Williams protested: "I didn't sign a card for Local 222 . . . I'm not going to pay him a damn thing." She kept arguing, and when Koehl approached and learned of her complaint, he said: "You are in the Union whether you like it or not . . . do what you want." Eleuterio DeJesus thought he had been mis- takenly overpaid and so told Koehl, who replied: "No, this is not a mistake. This is a raise you got on account of the Union. You are a union member now." DeJesus also insisted he was not a member because he had not joined-"Seymour, this union is not good for us and you are trying to force this union in." Koehl's parting answer was: ". I'm sorry, but who don't want the union can leave, be- cause this is the union we have." Koehl also requested employees on many occasions, both in groups and individu- ally, to sign cards for Local 222. He explained the benefits while they worked, appealed to them to accommodate him out of friendship, and even used threats To Pearl Boyd he said: ". . if Local 413 came in and Hymie Lasher [official of that union], that he was going to treat us so mean that we wished we would quit." To Harry Miller: ". the people in the factory did not know what was good for them." Again to Pearl Boyd: ". . . we were stupid for not wanting it." Koehl accused more than one employee of impeding his efforts. He asked whether certain employees whom he named were responsible, and added, to Audrey Brown: "Nobody is going to hurt me, not even 413 . . because I'll fire them and see if the Union will help them then." Koehl waged a regular campaign with DeJesus, pleading with him to "let" others sign and to distribute cards; when DeJesus asked to see the union contract , as the posted notice invited the employees to do, Koehl said he could not do so. Koehl gave a supply of Local 222 membership application cards to the office girl, Sylvia Sussman, with instructions to ask all new employees to sign it when they were hired. She did so; some signed and some did not. Two days after Ladmer spoke to the employees from atop the table, Koehl also called a group of four or five foremen to a special meeting in his office and instructed them to make efforts to prevail upon employees to join Local 222. They replied they were re- luctant, lest "it would look as if they were working with the bo ss against the people in the shop." Koehl was markedly unsuccessful in his organizational campaign . McFadden, a foreman, even threatened to quit if he had to solicit signatures. DeJesus gave Koehl a complete runaround, and virtually laughed at the owner. The parties stipulated that Local 222 never represented a majority of the Respondent's em- ployees in any appropriate bargaining unit. From the witness stand Koehl denied he had ever executed a written contract recognizing Local 222 as exclusive bargaining agent in the plant. His evasive and ambiguous explanation of the Company's written announcement that the "union contract" was at all times "available for inspection," coupled with the failure to deny any of the testimony showing the most determined resolve to implant Local 222 as the employees' bargaining agent, compel me to reject his denial. His con- fused and almost unintelligible testimony seems to add up to an assertion that all he meant, when he said there was a contract to "inspect," was that he had agreed with Local 222 that in the event it should ever achieve majority status, and prove the fact to him, he would then extend recognition and sign an agreement with it. From an established businessman I find such an explanation at best insufficient to offset the affirmative indication elsewhere in the record that the Respondent had come to a binding agreement with Local 222 to extend complete recognition to it. I am satisfied a written agreement was signed. In any event, even assuming this accord was an oral one, it is clear that the Respondent gave the employees to under- stand that a contract had been made and that their choice in the matter was no longer PALETTE SAMPLE CARD CO., INC. 77 of any avail. As Local 222 at no time represented a majority of the employees, execution of a contract giving it exclusive recognition was clearly a violation of Section 8(a)(2) of the Act and I so find. The illegal assistance to a labor organ- ization proscribed by that section, and its inherently coercive effect upon the em- ployees in their statutory freedom to select a representative of their own choosing, is found no less in an employer's conduct in creating the impression that it has ex- tended such unlawful recognition. I also find that Koehl's separate acts of inviting the officers of Local 222 into the plant to harangue the employees into accepting that union, his orders to employees to closet themselves with that union agent in the office and to be subjected to solicitation in the "locus of authority," his threat of harsh treatment in employment and discharge for refusal to join that Union, his granting of a raise in pay as a "union benefit," and his payment to all the employees for time spent listening to the union agents at his instructions, in each instance constituted further illegal assistance to Local 222 and a violation of Section 8(a) (2) and (1) of the Act attributable to the Respondent.i B. The discharge of Ruby Edmond Ruby Edmond worked for the Respondent for 5 years. During the workweek ending Friday, March 18, she suffered from a pain in her arm and on that day found it so painful she decided to go home. At lunch hour, about 12:30, she told Davila, her foreman, she was leaving work because her arm was "hurting." The foreman replied: "Ruby, Seymour [Koehl] is going to get angry because so many of you girls are going home." She left without further talk and did not return to the plant until Tuesday, March 29. Edmond telephoned the plant twice during her absence, on Thursday, March 24, and again on Monday, March 28. Her testimony relative to these telephone calls is quite confused. At first she said she called in on the Monday immediately following her departure, or 3 days after March 18. Later, however, she definitely placed one of the two talks with the office girl as the day before her return, March 28, for she insisted she returned to work "the next day." Indeed, she expressly conceded she had erred in saying she had called the plant on the first Monday at all. As to this conversation, Edmond was also not clear concerning what she said or why she called. Her first version was that she simply asked Sussman, the office girl, to put her through to Seymour Koehl, that when she reached him she said she would not be in that day but the next, and that Koehl replied: "All right, Ruby." As she continued to testify, Edmond said that in this conversation she told Sussman to tell Seymour she would not be in that day but the following one. A third version of this same telephone call was that she told Sussman she would return the next day. Edmond also telephoned the office girl on Thursday, March 24, to ask her to deliver her paycheck to Audrey Brown, another employee, who would call for it the regular payday, Friday. Edmond testified that Sussman then asked her how she was feeling and that she replied "a little better." Sylvia Sussman, who was called by the General Counsel to testify about the Local 222 membership application cards which Koehl instructed her to give all the new employees, said she recalled no telephone conversations at all with Edmond during the latter's absence. She did not, however, deny Audrey Brown's testimony, which I credit, that on Friday, March 25, Sussman delivered Edmond's check to her. Brown also testified that as she was leaving the office that day, Sussman asked, "How is your friend Ruby?" and she replied: "She is getting along fine." When Edmond returned to work on March 29, her timecard was missing from the clock and her foreman told her to see Koehl, who then said he had heard Edmond had quit. Edmond replied: "I didn't tell you I quit. I didn't tell nobody else." Koehl repeated what he had heard and pointed to another girl as a replace- ment he had hired. Edmond then asked for a layoff slip and received it an hour or so later. From the plant Edmond went to the office of Local 413, and from there telephoned Koehl to inquire who had reported her as having quit. Her testimony, uncontra- dicted like all the rest, was that Koehl replied: "Ruby, I'm not going to tell you because you have something in your head that you wouldn't tell me. And I'm not going to tell you who said it. . . -. You could go to Local 222 and they will give you a job." Edmond hung up and never returned to the plant. The complaint alleges that Koehl discharged Edmond because she was a member of Local 413 and because she refused to support Local 222. To the contrary the Respondent contends that she quit her job and that no element of dismissal was 1Dixie Bedding Manufacturing Company, 121 NLRB 189, enfd. 268 F. 2d 901 (CA. 5). 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD involved at all when she ceased work. On the evidence in this record I cannot find that Edmond intended to leave her job voluntarily .2 She never said so and the Respondent produced no evidence of any such intent. I deem the fact she sent for a paycheck due during her absence insufficient to show she thereby intended never to return to the plant. The essential issue raised by the complaint, however, is not whether she quit or was dismissed, but whether the record as a whole proves, by a preponderance of the affirmative evidence, that the Respondent in fact discharged her because of her chosen union activities or because of her refusal to assist Local 222, as Koehl, desired all employees to do. The following facts would tend to support this, complaint allegation When President Ladmer, of Local 222, told the assembled employees on February 3, 1960, in Koehl's presence and hearing, that he had a majority of cards signed, Edmond spoke up to ask to see her card and then said ".. . if I noticed anybody signed my name to a card, that I would do something about it." Edmond also testi- fied, quite credibly, that ". . . he [Koehl] would tell me, he would say, `Ruby, I know you for Hymie [Hyman Lasher, representative and organizer for Local 413]."' And Audrey Brown said that sometime back in November or December 1959 Koehl accused her of being an instigator for Local 413, and that "I hear Ruby is an insti- gator." And lastly, in her final conversation with Koehl, when she called him from Lasher's office after she had left the plant for the last time, Koehl said to her: "You could go to Local 222 and they will give you a job." Against the foregoing, there are other equally unquestioned facts which also bear a relevancy upon the question of Koehl's possible motivation, but which would indi- cate that he may not have selected Edmond for an illegal discrimination in employ- ment. She was not particularly active on behalf of Local 413. She signed a card: "That was all I did . I wasn't no leader." She never spoke at any union meet- ing, and conceded that Koehl told her "long ago" that she was "for Hymie." Edmond was not the only one who spoke her mind in opposition to the attempt to force Local 222 by Ladmer's speech in the plant on February 3. Archie Wolfe also quarreled with Ladmer with: "What can you do for us that the boss is not doing now? He gives us a raise every year. He gives us bonuses for Christmas. What can you do that he is not doing?" Olric Frazier, another employee, got into, an argument with Ladmer over who would be steward, and ended with saying aloud: "you are calling me a liar?" Edmond's expressed opposition to Local 222 was matched by the responses of others to Koehl's attempts to induce them to join that union. Like Edmond, when Daisy Williams was told by Koehl she had received a pay raise because she was "in the union whether you like it or not," she answered: "I didn't sign any card for the union." DeJesus wrote to the office of Local 222 for a copy of the "contract" to test the notices Koehl had posted about the plant, and Koehl upbraided him for it, with ". . . you don't have to lie to me . . . you better stop all that." With complete candor DeJesus flaunted his indifference to Koehl. And McFadden threatened to quit unless Koehl stopped trying to force him into soliciting membership for Local 222; Koehl then "just dropped the conversation." There were others whom Koehl considered antagonistic to his design; he accused Martha Wilson, Daisy Williams, and Ida Anthony also of putting the "screws" on him. Apart from these indications that Koehl's resentment, based on grounds of union activity, must have been directed more towards other employees, whom he did not mistreat in consequence, than against the relatively inconspicuous Ruby Edmond, there is also evidence of the probability, at least, of other unrelated grounds for her separation from the Company. Koehl was "angry" with her for leaving the shop in the middle of the day; Foreman Pedro Davilla said at the moment Edmond left that 2 In partial support of its affirmative defense the Respondent placed in evidence the decision of a referee of the New York State Department of Labor Unemployment Insurance Referee Section, sustained on review by its appeal board, rejecting Edmond's application for unemployment insurance benefits A reading of the transcript of testimony taken be- fore that referee shows that his conclusion was based in part on evidence which was not offered in the hearing before me and that additional evidence, received on the complaint in this proceeding, was not available to him Moreover, the referee did not unequivocally find Edmond had quit, but concluded, "Her cumulative actions provoked her dismissal and were equivalent to her voluntary termination. . . " I therefore deem the decision in the unemployment compensation proceeding not binding on me on either the factual ques- tion of quit or discharge or the allegation of illegal motive in the Respondent's conduct. See- Transitron Electronic Corporation, 129 NLRB 828 PALETTE SAMPLE CARD CO., INC. 79, the manager was upset over the fact that "so many" women were going home. Moreover, Edmond's own testimony shows that there was a practice, if not an obliga- tory rule, for employees to call into the plant to advise the Company that they were not coming in for work. Whether this practice involved a call only when a woman left without notice the day before, or extended to an obligation to report an extended absence following a midday departure like Edmond's on March 18, is not clear in her testimony. She said: "You are supposed to call," when illness caused an absence, but she also added: "I figured after I left Friday, and I told him my arm was hurting,. that it was my place to call," but she did not do so until 10 days later, March 28. And finally her total testimony cannot fairly support a finding that when she did call, the day before her return, she spoke to Koehl at all. She gave three versions of the conversation: first that she told Koehl she would not be back, then that she told the office girl to relay the message to him, and last that she just told Sussman of her intention to return. That she may not have spoken to Koehl at all is also strongly indicated by the fact that when she came in Tuesday and Koehl said she had quit, she denied having quit but made no mention of the fact, which she asserted at the hearing, that the day before Koehl had said to her on the telephone "all right," in reference to her stated intention to work Tuesday. Had he so assured her the day before, I think it highly likely she would have reminded him about it then and there. Nor did she attempt to remind him of any such conversation when she called him from the office of Local 413 a few hours later. In weighing the total record on the question of Edmond's separation, I have con- sidered not only the foregoing detailed direct evidence, but also the fact the Re- spondent resented any employee activities in favor of Local 413 and resorted to illegal measures to deny them their statutory freedom to be free of any union not of their choice. However clear it may be that the Respondent felt no compunction at violating the statute in one respect, it does not follow that any other of its con- duct, suspicious as it may be, necessarily was also illegally motivated. In the -normal operation of a business enterprise employees come and employees go. One essen- tial element of proof for any allegation of illegal separation is that the employer's antiunion animus, in one way or another, was directed against the employee involved. Like any other necessary element of fact this too must be established by a pre- ponderance of the credible evidence. On consideration of the entire record, in- cluding those facts which tend to support the complaint, and those which tend to disprove it, I believe the General Counsel has failed to satisfy the burden of proof resting upon him with respect to the separation of Ruby Edmond. Accordingly, I shall recommend dismissal of the complaint as to her. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Company as set out 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. I have found that the Respondent recognized Local 222, International Production, Service and Sales Employees Union, and entered into an exclusive recognition col- lective-bargaining agreement with it in the month of February 1960, although that Union did not at any time represent a majority of the employees of the Respondent in any appropriate bargaining unit. By such conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of their right freely to select their own bargaining representative, and has accorded unlawful assistance and support to that Union. In order to dissipate the effect of the Respondent's unfair labor practices, I shall recommend that it be ordered to withdraw and withhold all recognition from Local 222, International Production, Service and Sales Employees Union, and to cease giving effect to the aforementioned agreement, or to any renewal or extension thereof, until such time as that labor organization shall have demon- strated its exclusive majority representative status pursuant to a Board-conducted election among the employees. Nothing herein shall, however, be construed to require that the Respondent vary or abandon any existing term or condition of employment. Upon the basis of the foregoing, and upon the entire record in the case, I make the following: 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Palette Sample Card Co., Inc., is an employer within the meaning of Section 2(2) of the Act. 2. Local 413, International Brotherhood of Pulp, Sulphite & Paper Mill Workers, AFL-CIO, and Local 222, International Production, Service and Sales Employees Union, are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing and contracting with Local 222, International Production, Serv- ice and Sales Employees Union, by ordering its employees to listen to solicitation by Local Union 222 agents, by threatening to discharge and otherwise discriminate against employees in their employment for failure to accept the Respondent's choice of union, by granting pay raises as benefits for union membership unwanted by its employees, and by paying them for working time spent listening to union solici- tations as ordered by management representatives, the Respondent has contributed unlawful assistance and support to that union, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging, in unfair labor practices within the meaning of Section 8(a) (2) and (1) of the Act. 4. The foregoing 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.] Southern Electronics Company, Inc. and United Steelworkers of America, AFL-CIO. Case No. 10-CA-4640. November 8, 1961 DECISION AND ORDER On June 30, 1961, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only insofar as they are consistent with the following : The Trial Examiner found that the Respondent violated Section 8(a) (1), (3), and (4) of the Act by laying off five employees I and thereafter failing and refusing to recall them because they were union adherents and had given testimony in a prior Board proceeding z 1Jane Hardin, Louise Kesterson, Margaret Brown, Evelyn Weems, and Cora Belle Foshee. 2 Southern Electronics Company, Inc., 131 NLILB 1411. 134 NLRB No. 2.