Cumberland Shoe Corp.

1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, remain, or to refrain from becoming or remaining, members of any labor organization. ALBERT SIMON, INC., SIMON PHONOGRAPHS, INC., AMERICAN PHOTO MACHINE, INC., Employers. Dated---- --------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above-designated employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York 22, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Cumberland Shoe Corporation and Boot and Shoe Workers' Union, AFL-CIO. Case No. 26-CA-1469. October 29, 1963 DECISION AND ORDER On June 26, 1963, Trial Examiner Eugene E. Dixon issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached, Interme- diate Report. He also found that Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of these allegations of the complaint. Thereafter, Respond- ent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of 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]. 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 In- termediate Report and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent they are consistent herewith. 1. The Trial Examiner found that Respondent did not violate Sec- tion 8(a) (5) of the Act. We find merit in the General Counsel's exceptions to this finding. 144 NLRB No. 124. CUMBERLAND SHOE CORPORATION 1269 At the time the Union requested recognition and bargaining it had received authorization cards from approximately 80 of the 140 em- ployees then in the appropriate unit.' The Trial Examiner, relying upon the Board's decision in Englewood Lumber Company,2 held that 17 of the Union's cards were not valid authorizations for purposes of determining majority status because the employees who signed them testified that they were told when they were solicited by fellow em- ployees that a purpose of the cards was to secure an election. He concluded, therefore, that the Union did not represent a majority of the employees when it demanded recognition. We believe that the instant case is factually distinguishable from Englewood Lumber, supra, and that hence that case is inapplicable. While it is true, as found by the Trial Examiner, that 17 of the signatories testified that they were told that a purpose of the cards was to secure a Board election, it does not appear that they were told that this was the only purpose of the cards.' In this case the cards, on their face, explicitly authorized the Union only to act as bargain- ing agent of the employees, and,, contrary to the implied finding of the Trial Examiner, the failure of the Union's solicitors to affirmatively restate this authorization does not indicate that it was abandoned or ignored. Thus, there is no evidence here to negative the overt action of the employees in signing cards designating the Union as their bargaining agent, and the instant situation is not one in which the Union has beguiled employees into signing union cards.' In view of the Respondent's threats, promises of benefit, and coercive interroga- tion of employees, as found by the Trial Examiner, we are persuaded that Respondent's refusal to bargain with the Union on January 23, 1963, was not the result of a good-faith doubt of the Union's majority, but in order to gain time to destroy that majority.' We find, accord- ingly, that the Union has demonstrated its majority status and that Respondent, by refusing to recognize or bargain with it, violated Sec- tion 8(a) (5) and (1) of the Act.' 1 The unit agreed upon by the parties hereto consists of "All production and maintenance employees employed at the Respondent's Chapel Hill, Tennessee, plant, excluding office clerical employees , technical and professional employees, watchmen and guards , and super- visors as defined in the Act." 2 130 NLRB 394 8 In the Englewood Lumber case the solicitor explained to almost all the employees that the cards were only for the purpose of securing a Board election and thereby secured many signatures , including those of two employees whose hostility to the designated union was open and notorious and explicitly communicated to the solicitor. Cf. also, Morris cE Associates, Inc, 138 NLRB 1160, 1164. 'Koehler's Wholesale Restaurant Supply, 139 NLRB 945. 3 Joy Silk Mills v. N.L R B., 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U S 914. O Member Brown joins in this finding because , in his opinion , the best evidence of em- ployees' intent , le, their signature to cards designating the Union as their bargaining agent, establishes the majority status of the Union at the time it requested recognition. He believes it unnecessary and inappropriate to considered any representations the Union's solicitors may have made or what the employees may have been told. 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent contends, and the General Counsel disputes, that five employees classified as watchmen should be included in the bargaining unit on the ground that they do not meet the statutory definition of watchmen or guards. The employees in question guard the plant doors to prevent removal of shoes during the 45-minute lunch period and during three 10-minute breaks each morning and three 10-minute breaks each afternoon. In addition, they make rounds each hour of every night and lock the doors and gates. It is their duty to report to supervisors any attempts to remove shoes from the property. Al- though they do some maintenance work, they are classified as watch- men and it is obvious that they devote a substantial portion of their time to guarding Respondent's property. It is well settled that em- ployees whose duties include the enforcement of rules for the pro- tection of the employer's property and the safety of persons on the premises,are excluded from production and maintenance units.' We shall, accordingly, exclude them from the unit. Respondent further contends that two leadmen and a supervisory trainee should be included in the production and maintenance unit whereas the General Counsel contends that the three are supervisors as defined in the Act. The two leadmen, White and Johnson, fill in at the machines of employees in their respective sections when the regu- lar relief men are busy, return defective work to the employees respon- sible therefor and point out the defects, reassign employees from one machine to another in order to balance production, and set and adjust machines as the occasion requires. Their compensation is computed on pan hourly basis in contrast to that of foremen and higher super- visors, who receive weekly salaries. Neither is concerned with hiring, firing, layoffs, promotions, granting of overtime, or disciplining of employees nor does the record indicate that either may make effective recommendations in connection with such actions. Although several employees testified that either White or Johnson gave them orders, it appears that the orders referred to were those described above and were merely routine directions which did not require the exercise of discretion or the use of independent judgment. Certain of these "orders"' were, in fact, communications from foremen and the plant superintendent which were merely relayed through White and John- son to the employees for whom they were intended. Under these circumstances we find that White and Johnson are not supervisors as defined in the Act ' and ' are, therefore, included in the bargaining unit. Allin, who is carried on Respondent's payroll as a trainee, in the prefitting-lining department, spends more than half of his working hours on a repair machine and in matching and delivering work. He was never told that' he was in training for any particular supervisory 7 See Wonderknit Corporation, 123 NLRB 53. CUMBERLAND SHOE CORPORATION 1 271 position although he testified that he hopes and that he assumes he will be a supervisor upon completion of his training. Like the two leadmen, Allin occasionally moves employees from one machine to another in accordance with schedules or work layouts set in advance by the foreman of his department and any orders he may give are either mere transmissions of instructions or of a routine nature. Re- spondent's representatives testified that it was Respondent's hope that Allin would eventually qualify as a foreman. Whatever his ultimate responsibility may be, however, it is clear that Allin does not presently possess any of the attributes of a supervisor enumerated in the Act. He is, therefore, included in the unit. 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, Cumberland Shoe Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating its employees unlawfully regarding their union activities or sympathies, threatening them with reprisals, or prom- ising them benefits in connection with their union activities or sympathies. (b) Refusing to engage in collective bargaining with Boot and Shoe Workers' Union, AFL-CIO, as the exclusive bargaining representa- tive of its employees in a unit consisting of its production and main- tenance employees, with respect to rates of pay, hours of employment, and other terms and conditions of employment. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Boot and Shoe Workers' Union, AFL-CIO, as the exclusive representative of all employees in the aforesaid appropriate unit, with respect to rates of pay, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Chapel Hill, Tennessee, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by Respondent's authorized representative, be 8In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order " 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posted by the Respondent immediately upon receipt thereof, and be maintained by it for 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 said Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 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 threaten our employees with economic reprisals if they choose Boot and Shoe Workers' Union, AFL-CIO, or any other union, as their bargaining representative, or with economic benefits if they refrain from such choice. WE WILL NOT interrogate our employees concerning their or other employees' union affiliation or activities in a manner consti- tuting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT instruct our employees to report on the union affiliation or activities of other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any of our employees in the exercise of their right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. WE WILL, upon request of the Union, bargain collectively with Boot and Shoe Workers' Union, AFL-CIO, as the exclusive bar- gaining representative of our production and maintenance em- ployees, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All production and maintenance employees employed at the Respondent's Chapel Hill, Tennessee, plant, excluding office clerical employees, technical and professional employ- CUMBERLAND SHOE CORPORATION 1273 ees, watchmen and guards, and supervisors as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Boot and Shoe Workers' Union, AFL-CIO, or any other labor organization. CUMBERLAND SHOE CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Seventh Floor Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard before Trial Ex- aminer Eugene E. Dixon at Lewisburg, Tennessee, between April 23 and 25, 1963, pursuant to due notice with all parties represented . The complaint, issued by the representative of the General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board ) on March 7 , 1963, and based on charges filed by Boot and Shoe Workers' Union , AFL-CIO (herein called the Union) on February 19, 1963, alleged that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act. In substance the complaint alleged that Respondent engaged in various acts of interference , restraint, and coercion in connection with rights guaranteed its employees in Section 7 of the Act and that it refused to bargain with the duly designated collec- tive-bargaining agent of its employees in an appropriate unit . In its answer Re- spondent denied the commission of any unfair labor practices. Upon the entire record in the case (including excellent briefs from both the General Counsel and the Respondent ) and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS At all times material herein, Respondent has maintained its principal office and a manufacturing plant at Chapel Hill, Tennessee, where it is engaged in the manufac- ture, sale, and distribution of shoes. During the year preceding the issuance of the complaint, Respondent manufactured, shipped, and sold from its Chapel Hill, Ten- nessee, plant shoes valued in excess of $400,000 to points directly outside the State of Tennessee. During the same period of time, Respondent, in the course and conduct of its business, purchased and caused to be shipped to its Chapel Hill, Ten- nessee, plant materials for the manufacture of shoes valued in excess of $300,000 directly from States of the United States other than the State of Tennessee. Re- spondent is, and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Boot and Shoe Workers' Union, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The alleged interference, restraint, and coercion A campaign by the Charging Union to organize Respondent's employees at its Chapel Hill plant began about January 1, 1963. Several witnesses called by the General Counsel testified regarding various coercive remarks made to them by Foreman Thomas Garrett during the course of this campaign as follows- (1) Larry Barcheers testified that in late January, Garrett called him back to the shipping room and began talking to him about wages. Garret said that the plant would close down if the Union came in He also told Barcheers that if he heard any- thing about the Union, to come back and tell him about it. (2) David Gentry testified that Garrett came to his machine and asked him if he had heard any union talk. When Gentry replied that he had not, Garrett said that he did not see how the Union was going to help the employees, that he thought the Company was being as fair as it could be, and that the plant was not yet in full production Garrett said that if the Union came in, they would have to close the doors. Gentry testified that in the next month, Garrett talked to him approximately five more times and that in each of these conversations he told Gentry that the Company could not operate under union rules and that they would have to close the doors. (3) Albert Jones testified that Garrett called him to the shipping department and asked him if he had heard anything about the Union. Jones replied that he had not heard anything except what Mr. Allin, the foreman in the fitting room, had said Garrett said that he did not know, but he thought the Company had enough law on its side that it could close the plant if the Union was voted in. About 2 weeks later, according to Jones' further testimony, Garrett came to his machine and asked him how he stood on the Union. Jones replied that he did not know because he was trying to make 100 percent. (4) Marilyn Hargrove testified that Garrett came to her machine and asked her if she had heard anything about the Union She replied in the negative. (5) Harry Ring testified that he was called to the shipping room by Garrett who told him there that wages were going up and that the Company was giving the employees a nickel raise 6 weeks earlier than the Company was required to do under the wage law. Garrett told Ring that he had not heard how Ring felt about the Union He also said that the Company was not for it. Garrett then said, "The Federal Government gives you the right to vote in the Union, but it also gives the Company the right to close the plant. That's what Mr Bransford has said the Company was going to do in case the Union was voted in." (6) Bobby Wolaver testified that he was also called back to the shipping room by Garrett who told him that just because he had signed a union card, he did not have to vote for the Union and that he wished that Wolaver would reconsider the matter and think about the situation before he voted for it. (7) Ronald Dodson testified that he was called back to the shipping room where Garrett asked him if he had heard anything about the Union. Dodson replied that he heard a little talk about one. Garrett then asked Dodson if he had signed a union card. Dodson replied that he had. Garrett told Dodson that the president of the Company said that if the Union came in down there, they would close the plant down. (8) Junior Flye testified that Garrett came to his machine and told him that he had heard some talk about the Union and did not believe it was a good idea. Garrett then said that the plant would close if the Union came in and the Company would do what they said they would in his testimony, Garrett admitted talking to each employee of his department separately in the shipping area immediately adjoining the shipping room. According to Garrett, he told the employees that they had been having short hours, short days, and short weeks, and that there had been some bad quality and losses of leather. He asked for the employees' cooperation in trying to recoup some of these losses. He asked for a better effort in their work. He stated that he personally was not for the Union, and did not see how the Union could help the employees at that particular time. He said that the Company was doing everything it could do to keep the employees working and to give them as much time as possible. He pointed out that some work that had been scheduled for the Franklin plant had been moved to the Chapel Hill plant so that the Chapel Hill employees could have more work. Garrett further admitted having talked to the employees individually on at least one other occasion. As before, according to him, he made substantially the same remarks to each one. He said that "they" had been informed that they had orders only to the first of the year and that salesmen were doing everything they could to obtain orders to afford more production. He again asked for their cooperation. He again mentioned that the Union was trying to organize the employees, and said that any further burden placed upon the Company might cause it to have to close down. CUMBERLAND SHOE CORPORATION 1275 He added that he did not want that to happen. He explained that the Federal Gov- ernment gave them the right to vote the Union into the plant. He referred to a raise which the Company had given employees some months before the increase was required by law.' He denied making any statement to employees about the possible closing of the plant other than the one about the Company's financial condition and the possible effect of an additional burden upon it.2 He told the employees that the Company could not continue to lose money and stay in operation. In his further testimony, Garrett admitted that he interrogated some of the employees about the Union. Respondent adduced evidence, which was undenied and credited, that it was operating at a loss at its Chapel Hill plant. Respondent's evidence also shows that it is not the Company's practice to manufacture for inventory. Rather, it manu- factures only upon order. At the time of Garrett's discussions with the employees, Respondent never had a backlog of orders for more than a few days' work In these circumstances, Respondent contends that Garrett's remarks simply meant "that the Union in an effort to secure higher wages might place an additional financial burden on the Company, and that such an additional burden might make it necessary for the Company to close the plant." Thus, according to Respondent, Garrett's remarks were "nothing more than a prediction of the possible effect of action reasonably expected to be taken by the Union and did not constitute a threat that the Company in retaliation or in an effort to avoid its statutory obligations would close its plant." Respondent also contends that Garrett's interrogation of the employees about the Union "were usually couched in words suggesting that they were used merely as a means of introducing the Union as a subject of conversation and not as part of a serious effort by Garrett to obtain information or to coerce employees." While I do not doubt that Garrett told the employees much of what he testified about, I also believe and find that he also told the employees essentially those things which the General Counsel's witnesses testified he told them. Garrett impressed me as being a very uncomfortable witness on the stand and much of his direct testimony came in by way of leading questions. It seems to me that considering the manner in which Garrett conducted these conversations with the employees and the number of them, there was bound to occur variations from the same general theme that Garrett claims to have employed with all of them and that these variations are reflected in the General Counsel's version. Accordingly I find from the foregoing that Respondent (1) threatened to close the plant if the Union were chosen the bargaining agent of the employees; (2) instructed an employee to report on the activities of the Union; (3) offered or implied the offer of a benefit for opposing the Union; 3 and (4) interrogated the employees about the Union all in violation of Section 8(a) (1) of the Act. In addition to the foregoing, employee Melvin Newcomb testified credibly and without contradiction that Foreman J. D. Chapman came to his machine on February 21 and asked him what he thought about his job and told him, "If you think very much of your job you will vote against the Union." By this remark Respondent further threatened its employees in violation of Section 8(a)(1) of the Act. Employee Fred Little testified that Chapman came to him one day late in January and told him be wanted to talk to Little after work that evening. When Little went to see him Chapman asked him what he thought about the Union. Little replied that he did not know. Chapman said that he represented the Company and he had to talk against the Union and if a man was paying all he could pay and could not pay any more he would just have to quit.4 The evening after the Company received the Union's representation petition, according to Little's further testimony, Chapman called him at a filling station where he was helping and asked if he could come down and talk to Little. Little replied that he could. A few minutes later Chapman arrived and they talked in Chapman's 'Nevertheless, he also testified on cross-examination that he talked to Ring about a raise that the "employees were getting." 2In this connection he admitted that he told the employees that they could vote any way they wanted to and then told them that the Company might be forced to close the plant "if there were any extra burdens " I Garrett's comment to Jones about the Company giving a raise of a nickel 6 weeks be- fore required by law I find to have been such a promise of benefit in the context it was made regardless of whether it was made in reference to a raise which had taken place or to one that was about to take place ' Elsewhere Little testified that Chapman had said, "If a man was paying all that he could pay and couldn't pay any more he would just have to close up." 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD car. Chapman asked how things were looking in the union campaign and how many cards had been signed. In his testimony Chapman admitted having initiated two conversations with Little about the Union and having gone to the filling station purposely to see Little on the occasion of the last one. He denied, however, interrogating Little about the Union. As for the remark about quitting , Chapman testified that Little had said "he was going to have to make more money-or else he would have to quit." Chapman told him that he did not think Little "could get any more money right now, and that it was up to him about quitting." I have no difficulty in finding on the above testimony that Chapman illegally interrogated Little about the Union in the two conversations . However, even if I were to credit Little 's testimony in toto, I would conclude that the other alleged coercive remarks by Chapman were too equivocal to find that they also violated the Act. Employee Harry Ring testified that in February , Foreman Garrett told him that Plant Manager Carlton wanted to talk to him in the office . There Carlton asked him how he liked his job and said that Ring was doing well in making over 100 percent every day. They talked awhile about some new shoes the Company was going to start and different things and then Carlton said, "About this union business, Harry, how do you feel about that?" When Ring said that he had never worked under organized labor Carlton said that he had and that "some of the people there were sorry that they got a union after they had it." Carlton also said "that he hated to see the Union come in up there, and said it works us against each other." He further said that "it wouldn't do any good , because the Company already pays the wage law." In this same conversation , according to Ring's further testimony , Carlton told him that "he was looking for men with the ability of being foremen and that someday there might be a job like that for [Ring]." There was no essential denial of the foregoing in Carlton 's testimony . I credit Ring. This evidence reveals further illegal interrogation by Respondent of its em- ployees. In my opinion it also reveals a further promise of benefit or the implication of a benefit vis-a-vis a promotion for Ring having been made in the context of the Company's stated opposition to the Union. Another employee, Carolyn Brown, testified to a conversation with Foreman Carlton Ellis in late January 1963, as follows: He just came by the machine one day. We was talking about the union- he was talking about the union, how it would do, and asked me did I know what the union really was. He said that if the union came in we would lose all of our benefits , paid holidays, vacations, and everything. She had several other conversations with Ellis "mostly about the same thing." On cross-examination she testified that she really did not known who started the con- versations but that they were friendly, she speaking for the Union and he against it. She admitted that Ellis had told her "that if the umon came in the company and the union would have to negotiate about benefits" and that what benefits the employees would get "would be those that the company and the union agreed on " According to Ellis, Brown initiated the conversations the substance of which he testified as follows: She came to me and took the time to talk about the union . She said she didn't know which way she felt about it. She told me that , and one particular time she came to me and asked me, that she had heard all of their benefits would be taken away when the union came in. At that time I told her that from the company's standpoint that when the union came in they would have to nego- tiate with the union to get their benefits. On the foregoing testimony I find no violation. B. The alleged refusal to bargain On January 18, 1963, the Union wrote Respondent claiming to represent a majority of Respondent's production and maintenance employees and requested recognition as their collective-bargaining agent.5 This letter was received by Re- spondent on January 22. 5After the close of the hearing a stipulation was offered by the parties as follows: On January 18, 1963, a representation petition was filed by the Union ( Case No. 26-RC-1888) naming Respondent as the employer , and describing a collective -bargaining unit which is the same in substance as that described in the complaint as amended at the hearing. A copy of this petition was received from the Board by Respondent on January 22, 1963 Thereafter the Company and the Union entered into a consent election which was approved CUMBERLAND SHOE CORPORATION 1277 On January 23 Respondent wrote the Union as follows: This will acknowledge your letter of January 18th in which you claim that a majority of the employees of Cumberland Shoe Corporation at Chapel Hill have turned over their right and their say-so about their jobs, their wages, and their working conditions to your Union, and in which you request recognition. During the past several days I have heard reports of your organizing efforts in our plant and the methods your Union has been using in an effort to get people to sign cards. I do not believe that a majority of our employees have freely and without coercion authorized your Union to represent them, nor do I believe that they ever will. I will not accept your word for what the Cumberland Shoe employees want and certainly will not accept your statement that they have authorized you to speak for them. In the light of this, I will not meet with you as requested in your letter nor can we recognize you as bargaining agent. The number of employees on the payroll as of January 22 with respect to whom there is no dispute as to their properly being in the unit was 140.6 On this basis 71 would have had to belong to or have designated the Union as their collective- bargaining agent as of January 22 to have constituted a majority on that date. As of that date the Union had succeeded in getting 84 employees to sign cards which by their language authorized the Union to act as their bargaining agent? Two of those employees, however, had resigned their employment prior to January 22 8 so that the total number of cards to be considered in computing the majority at that time was 82. Eighty-two, of course, was clearly a majority if all the authorizations were valid Respondent contends that 17 of the cards were not valid authorizations and that consequently the Union did not represent a majority of the employees on January 22. On the basis of Englewood Lumber Company, 130 NLRB 394,8 I agree with Respondent. In that case 27 out of 38 employees had signed cards in a campaign which the Trial Examiner described as having been waged on the theme that an election would be held. Ten of them testified that when solicited they were told that the cards were for the purpose of obtaining a Board election. Also, one of the leaders of the solicitors testified that he told practically everyone he talked to that the cards would be sent to the Board to obtain a secret election. The majority held that "In these circumstances, considering only what the employees were told, and not what may or may not have been their subjective reaction to what they were told, we do not think it can be reasonably said that the employees, by their act of signing authorizations, thereby clearly manifested an intention to designate the Union as their bargaining representative." by the Regional Director on February 14, 1963 . This agreement contained the same unit description as that appearing in the amended complaint . The election was set for March 14 , 1963 On March 5, 1963, the Regional Director approved a request for a withdrawal of said petition and the parties were so notified by letter on that date. The stipulation is hereby received as part of the record herein. 8 There were five more employees who performed guard or watchmen duties upon whom there was a dispute in this connection , the Respondent contending that they were rank-and- file employees who should have been in the unit. In addition there was a dispute as to whether or not three other employees were supervisors , Respondent contending they were not and that they also should have been in the unit In view of my disposition of the majority question here, there is no need to dispose of the conflicts regarding these eight employees The cards stated as follows: I, an employee of the----------------------------------------------------- hereby authorize the Boot and Shoe Workers Union , AFL-CIO, through its duly accredited representatives , to act for me as a collective bargaining agency in all matters which pertain to rates of pay, wages , hours and all other conditions of em- ployment, including the signing of an agreement with my employer in conformity with the National Labor Relations Law and /or States Labor Relations Law. Name ---------------------------------------------------------------------- Address ------------------------------------------------------------------- Operation ------------------------------------------ Date ----------------- Marilyn Hargrove resigned on January 17 and Mary Alice Lee resigned on January 18. e Decided February 17, 1961, by a divided panel of the Board , Members Leedom and Rodgers for the majority and Member Jenkins in dissent. 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The situation here is almost identical to that in the Englewood case. Here 17 employees testified that they were told when they were solicited by fellow employees that the purpose of the cards was to secure an election.iO This testimony is undenied and credited. It also appears from the undenied and credited testimony of Marilyn Vaughn that the talk "all over the plant" was about trying to get an election. As indicated, the Englewood decision was by a divided panel in 1961. Since that time there has been a change in the composition of the Board. Whether or not the Board would reach the same result now as it did then in Englewood I do not know. I do know, however, that the Englewood case is binding on me and that it is also controlling on the facts herein. Accordingly, I find that the Union did ro A list of the 17 employees and the substance of their testimony follows: (1) H G Earonhart testified that his signature was solicited by Junior Watkins who said that "it was to have an election." He was told that the union needed to have 80 per- cent of the employees signed up in order to get an election. (2) Bobby Childers testified that his signature was solicited by another employee who told him that if they secured the signatures of more than 50 percent of the employees, they would have an election, and that the purpose of the card was to secure an election. (3) Patsy Floyd testified that she and Elizabeth Hopkins signed cards at the same time. Her signature was solicited by Hazel Collins, another employee Hazel Collins told her that the purpose of the card was to bring the union question to a vote in an election (4) The testimony of Patsy Floyd shows that the signature of Mary Elizabeth Hopkins was likewise solicited and secured through the representations of Hazel Collins concerning the limited effect of the cards (5) Calvin Cozart testified that his signature was solicited by another employee This employee told him that the purpose of the card was to secure a vote on the union He ex- plained that it was required that a certain number of cards be signed before an election would be held. (6) Johnny Adams testified that his signature was solicited by another employee who explained to him that the purpose of the card was to get an election on the union question (7) Lewis Wilson testified that his signature was solicited by another employee who ex- plained to him that the purpose of the card was to get an election, and that they must get "enough cards" in order to have an election. (8) Janice Taylor testified that her signature was solicited by another employee who told her that the purpose of signing the card was to get an election. The person soliciting her signature did not explain to her that an effort would be made to get the union into the plant without an election. (9) Cornelia Lee testified that the employee who solicited her signature told her that they would have to have 90 percent signed up in order to get an election He said that that was the purpose of the card (10) Barbara Shaw testified that her card was solicited by an employee who told her that the purpose of the card was to get an election. (11) Harold J. Smith testified that his signature was solicited by another employee who told him that the purpose of the card was to get an election. The other employee did not tell him that his card would be used for the purpose of attempting to get the union into the plant without an election. (12) Carolyn Haynes testified that her signature was solicited by another employee who told her that the purpose of the card was to get an election. The witness testified further that the employee soliciting her signature did not tell her that her card would be used for the purpose of trying to get the union in without an election. (13) Tommy Blackwell testified that his signature was solicited by another employee who told him that the purpose of the card was to get an election. He was not told that his card would be used for the purpose of trying to bring the union into the plant without an election. (14) Earl Daughrety testified that his signature , along with a group in the lasting de- partment that signed at the same time, was solicited by Henry Hargrove, Jr, who said that the purpose of the card was to get an election. Hargrove did not tell him that his card would be used in an effort to bring the union into the plant without an election. (15) James T. Helnick testified that his signature was solicited by Fred Little who told him that the purpose of the card was to get an election, and did not tell him that there was any other purpose in the signing of the card. (16) Henry Hargrove, Sr., testified that he was approached by two or three employees together. One of them asked him to sign a union card, telling him that the purpose of the card was to get an election. He did not tell him that the card would be used in an effort to bring the union in without an election (17) Adron Phifer testified that his signature was solicited by another employee who told him that the purpose of the card was to get 4n election BRICKLAYERS & MASONS INT'L UNION, LOCAL 3, ETC. 1279 not represent a majority of Respondent's employees when it requested recognition and that Respondent, when it then refused to recognize the Union , did not violate Section 8 (a)(5) of the Act. Cf. Gorbea, Perez & Morel(, S. en C., 133 NLRB 362, 369-374. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III , above, occurring in connection with the operations of the Respondent described in section 1, 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 of commerce. V. THE REMEDY It having been found that Respondent violated Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Boot and Shoe Workers' Union, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 2. Cumberland Shoe Corporation is engaged in and at all times material herein has engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 3. By interfering with , restraining, and coercing its employees in the exercise of rights garanteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair practices prescribed by Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. By refusing to bargain with the Union on and after January 23, 1963, Re- spondent has not engaged in and is not engaging in unfair labor practices proscribed by Section 8(a) (5) of the Act. [Recommended order omitted from publication.] Bricklayers and Masons International Union, Local No. 3, and C. M. Fish, Its Agent and Engineered Building Specialties, Inc. United Brotherhood of Carpenters and Joiners of America, Local No. 98, and Tom Severn, Its Agent and Engineered Building Specialties, Inc. Cases Nos. 19-CD-79 and 19-CD-79-2. Octo- ber 29, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10 (k) of the Act, follow- ing charges filed by Engineered Building Specialties, Inc., herein called the Employer, alleging that Bricklayers and Masons Interna- tional Union, Local No. 3, and C. M. Fish, its. agent, herein called Bricklayers, and United Brotherhood of Carpenters and Joiners of America, Local No. 98, and Tom Severn, its agent, herein called Carpenters, had each respectively violated: Section 8(b) (4).(D) of the Act. Pursuant to notice, a. hearing was held on May 21, 1963, at Spokane, Washington, before Hearing Officer Patrick H. Walker. 144 NLRB No. 119.