Cameo Lingerie, Inc.

CAMEO LINGERIE, INC . 535 FINDINGS AND CONCLUSIONS CONCERNING THE "RULES" Based upon the foregoing review and analysis , and in addition to the various specific findings therein made, some broader findings and conclusions are warranted with respect to the asserted "rules," viz: 1. Respondent's pattern of "rules" notification was altogether too random, sporadic, and unsystematic to place all employees on notice of the existence , as rules, of the various requirements Respondent advanced in this case. 2. As to the two "rules" Respondent advanced in defense of the discharges of Caudill and Allen: a. The requirement concerning notification of absences was never promulgated as a rule; and b. Respondent had no uniform or consistent policy with respect to the imposition of disciplinary action for transgression of either of these norms, whether viewed as "rules" or otherwise . Rather, Respondent overlooked various such transgressions and, in determining whether or not to impose any disciplinary action , acted on an ad hoc and discretionary basis. Cameo Lingerie , Inc. and Sea Isle Manufacturing, Inc. and Inter- national Ladies' Garment Workers' Union , AFL-CIO. Case No. 24-CA-1781. August 27, 196 , DECISION AND ORDER On January 27, 1964, Trial Examiner Horace A. Ruckel issued his Decision in the above-entitled proceeding, finding that the Respond- ents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respondents filed a reply brief. 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 [Chairman McCulloch and Mem- bers Leedom and Jenkins]. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and, although it finds merit, in certain of the General Counsel's exceptions, nevertheless adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. 1. The Trial Examiner held that the General Counsel had failed to establish that the Union had been designated as bargaining repre- sentative by a majority of Respondents' employees as of March 4, 1963, the date of the Union's initial demand for recognition. This 148 NLRB No. 60. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD holding followed from the Trial Examiner's rejection of 9 cards out of 137 submitted in evidence as proof of majority in an appropriate unit consisting of 263 employees. Six of these nine cards were rejected because they were obviously misdated December 1963, a date which had not yet been reached as of the time of the hearing in this case, and there was no proof that the cards had been actually signed before March 4, 1963. The three remaining cards were rejected because, although they were dated March 4, 1963, the Trial Examiner found nothing in the record to sustain a finding that they had been signed before the Union's actual demand for recognition on that date. In agreeing with the Trial Examiner that the refusal-to-bargain allegation of the complaint must be dismissed, we' do so because we find, that reasonable grounds existed to sustain the Respondent's contention that it had a good-faith doubt that the Union,represented an uncoerced majority of employees. The Union began an organizational campaign at Respondents' plants in Fajardo, Puerto Rico, in the summer of 1962. Employees who signed cards frequently left them undated, and in such cases union officials inserted dates without regard to the actual date on which they had been signed. Union officials made an oral request for rec- ognition of Black, the Respondents' plant superintendent, on March 4, 1963, and also mailed a demand for recognition the same day, which was received at the plant a day or two later. On March 8, the Union filed Section 8(a) (5) -charges and turned over to the Regional Office 'at least 137 signed authorization cards as evidence of its majority status. The Trial Examiner did not note that these cards were stamped by the Regional Office on March 8, the date of their receipt, and that they remained in the Regional Office's possession until they were in- troduced in evidence at the hearing. It is thus obvious that none of the Union's authorization cards, submitted as evidence of its majority status, could have been executed subsequent to March 8, 1963. On March 18, Respondents' counsel, Woods, who handled the mat- ter throughout for Respondents, spoke for the first time with Union Agent Schoen and suggested an immediate consent election.', Schoen declined, insisting that recognition be accorded on the basis of a card check. There followed a 2-month exchange of letters and phone calls between Woods and the Union dealing with questions raised by Woods 'Woods clearly so testified. Schoen, who also testified concerning several telephone conversations with Woods, appeared to be confused as to this matter. At one point he testified that Woods never mentioned the possibility of a consent-election agreement in their conversations. Later he stated it was first mentioned on April 18 ; then that Woods first suggested a consent election on May 15, which is the date Woods testified that he suggested this procedure for the second time The Trial Examiner did not resolve the conflict in this testimony . Weighing the certainty expressed by Woods on this matter against the inconsistencies in the testimony of Schoen , we credit Woods. CAMEO LINGERIE, INC. 537 as to how the card check was to be conducted and the persons to do it 2 Respondents' caution was apparently prompted by the fact that a number of employees had told Plant Superintendent Black, accord- ing to the latter's credible testimony, that they had been coerced into signing cards, and did not want the Union to represent them. Hence, Woods, in negotiating with the Union about the card check, sought to provide some means whereby those conducting the check could in- vestigate the circumstances under which employees had signed the cards. In., mid-May, when the exchange of letters and telephone calls proved unproductive, Woods again suggested a consent election, which the Union declined on May 23. On June 4, Respondents con- ducted a poll of their employees at the plant to determine the Union's representative status. The charges herein were filed on June 7. As noted above, the Trial Examiner held that Respondents had not unlawfully refused to bargain with the Union because the General Counsel had failed to prove that the Union possessed authorization cards signed by a majority of the employees prior to March 4, 1963, when the original demand for recognition was made. In our opinion, this holding of the Trial Examiner places an undue importance upon the formal aspects of making a demand. In the context of the Union's initial request on March 4 and the fact that all of the cards were ex- ecuted no later than March 8, we are satisfied that the Union's efforts thereafter to obtain a card check constituted a continuing demand upon Respondents for collective bargaining, at a time when the Union possessed a majority' of union' authorization cards 3 2. In view of his recommendation to dismiss the Section 8 (a) (5) allegations of the complaint because of the Union's presumed lack of a majority, the Trial Examiner found it unnecessary to consider the Respondents' defenses to the charge that they did not have a good- faith doubt of the Union's majority status. General Counsel's con- tention that Respondents were engaged in a calculated campaign to dissipate the Union's majority relies on the alleged coercive threats of supervisors, on interrogation of'employees by the poll conducted on June 4, and on Respondents' dilatory tactics in failing to agree to an immediate card check. , On two occasions in March, once soon after the Union's initial de- mand for recognition, and again a few weeks later, Supervisor Agosto told a number of employees that if the Union.got in, the plant would close down. We' do not agree with ' the Trial Examiner that these 2 During this period, the charges filed on March 8 were withdrawn. 3 Barney's 'Supercenter, Ina.,''128 NLRB 1325, enfd . 296 F.' 2d 21 ' ('C.A. '3). Member Leedom, who dissented in Barney's Supercenter, finds it unnecessary,to pass'on whether the Union's efforts after March 4 to obtain a card check constituted a continuing demand for bargaining, as he, in any, event. .agrees with his, colleagues that , the complaint should be dismissed because the Respondents ,had a good-faith doubt as to the Union's majority status. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks were not coercive, or that Agosto was only a minor supervisor for whose actions the Respondents were not responsible. We find that Agosto's comments constitute a threat of reprisal against the, employees if they selected the Union as their representative, and we shall order the Respondents to take appropriate remedial action. Based on his resolutions of credibility, we accept the Trial Ex- aminer's finding that Black, the plant superintendent, did not tell employee Campos that the plant would be shut down if the Union were successful in its organizational campaign. As for the poll of employee sentiment taken by Respondents on June 4, we agree with the Trial Examiner that it was undertaken in noncoercive circum- stances for the express purpose of determining the validity of the Union's claim to majority status in the face of the Union's refusal to agree to a consent election or to permit investigation into the circum- stances surrounding the signing of the cards. Thus, Respondents' Section 8(a) (1) conduct, except for Agosto's repetition in late March of her earlier coercive remarks, occurred before March 8 when the Union's showing of numerical majority was fixed. It is, of course, well settled that an employer's refusal to recognize a union in order to gain time to dissipate its majority constitutes a violation of the employer's duty to bargain in good faith.' But the question whether an employer who commits violations of Section 8(a) (1) also intends to undermine the union's majority or otherwise to defeat the employees' unionization may not be answered mechani- cally; it must turn upon a consideration of all relevant circumstances.' Even assuming in this case that the Union possessed a showing of numerical majority on March 4, when it initially demanded recogni- tion, we do not believe that the threats by Agosto, to a handful of em- ployees in a unit of more than 250 employees, can fairly be considered, standing alone, as evidencing a deliberate purpose on Respondents' part to gain time to dissipate the Union's majority. The record shows further that Respondents had reasonable grounds for doubting the accuracy of the Union's claim that a majority of the employees had authorized it to represent them. Thus, as previously, noted, Plant Superintendent Black credibly testified that numerous employees had told him that they did not wish to be represented by the Union although they had signed cards. Also, Respondents were willing from the beginning to abide by the results of a consent elec- tion. When the Union rejected this procedure, Respondents stated they would agree to a card check if those conducting the check could also inquire into other matters concerning the obtaining of the cards. 'Joy Silk Mills, Inc. v. N.L.R.B:, 185 F. 2d 732 (C.A.DC.), enfg. 85 NLRB 1263 5 Caldwell Packaging Company, 125 NLRB 495, 496, and cases cited in footnote 4 thereof. CAMEO LINGERIE, INC 539 Finally, when the Union rejected this proposal, Respondents repeated then willingness to agree to an immediate consent election We aie satisfied by the above that Respondents' doubts about the Union's claims were expressed in good faith and not for the purpose of delaying iecognrtion in order to destioy the Union 's majoiity 6 We conclude, accoidingly , that the alleged violation of Section 8(a) (5) has not been pioved THE REMEDY Having found that Respondents have engaged in unfair labor piac- tices, axe shall oiler them to cease and desist theiefiom and to take cei tam afhi inati% e action designed to effectuate the policies of the Act' AMENDED AND ADDITIONAL CONCLUSIONS OF LAW 3 By threatening employees that Respondents' plants would be closed, if oiganized by the Union, Respondents have engaged in unfair labor pi actices within the meaning of Section 8(a) (1) of the Act 4 The afoiesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 5 Respondents have not refused to baigain in violation of Section 8(a) (5) and (1) of the Act ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents, Cameo Lingeiie, Inc, and Sea Isle Manufacturing, Inc, then officei s, agents, successors, and assigns, shall 1 Cease and desist fiom (a) Thleatening there employees that Respondents' plants -ill be closed if they join, or engage in activities on behalf of, International Ladies' Gaiment Woikeis' Union, AFL-CIO, or any other labor organization (b) In any like or. ielated manner inteifeimg with, restraining, o1 coercing employees in the exercise of then right to self-organization, to form, join, of assist the afoi esaid Union, of any other labor or ganiza- tion, to bargain collectively through iepiesentatives of then oNsn choosing, and to engage in other conceited activities for the puipose of collective bargaining or othei mutual aid o1 piotection, and to ie- fi am from any of all such activities, except to the extent that such light may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act, as amended U Briggs IGA Foodliner, 146 NLRB 443 7In remedying the unfair labor practices of Respondents , we shall require that notices be posted in English and Spanish, as the record indicates that a number of Respondents' employees do not speak or understand English well enough to understand a notice in that language 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Post at their plants in Fajardo, Puerto Rico, copies of the at- tached notice marked "Appendix." 8 Copies of said notice, in English, and Spanish, to be furnished by the Regional Director for Region 24, shall, after being signed by Respondents' representative, be posted by Respondents immediately upon receipt thereof, and be maintained by them 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 to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 24, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith. - IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that the Respondents have engaged in any unfair labor practices in violation of Section 8(a) (1), except as specifically found above, and insofar as it alleges that the Respondents engaged in any unfair labor practices in violation of Section 8(a) (5). 'In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." 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 that our plants will be closed if they join or engage in activities in behalf of International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization; to form labor organizations, to join or assist the aforesaid Union- or any other labor organization, to bargain collectively through representatives of their own choosing, or 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 rights may be affected by an agreement requiring membership in a labor organization, as authorized by Section 8(a) (3) of the National Labor Relations Act, as amended. CAMEO LINGERIE, INC. -541 All our employees are free to become or remain, or refrain from becoming or remaining, members of the aforesaid Union, or any other labor organization, except as that right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized by Section 8(a) (3)--of the National Labor Relations Act, as amended. . CAMEO LINGERIE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) SEA ISLE MANUFACTURING, INC., Employer. Dated---------------- By------------------------------------- (Representative ) . (Title) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced,, or covered by any other material. Any employees having a question concerning the meaning of the above notice or compliance with its requirements may inquire by mail, telephone, or in person at the Board's Regional Office, P.O. Box 11007, Fernandez Juncos Station, Santurce, Puerto Rico, Telephone- No. 724-7171. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed June 7 , 1963, by International Ladies' Garment Workers' Union, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board , herein called respectively the General Counsel and the Board, by the Regional Director for Region 24 (Santurce , Puerto Rico), issued a complaint dated August 2 and an amended complaint dated August 22, 1963, against Cameo Lingerie, Inc., and Sea Isle Manufacturing, Inc.,' herein called the Respond- ents, alleging that they had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Specifically the complaint. as amended, alleges that Respondents , through their agents, ( 1) coercively inter- rogated their employees concerning their activity and membership in the Union, threatened to close down their plants in the event that the employees selected the Union as their bargaining representative , and conducted ,their own poll among their employees , and (2 ) since on or about March 4, 1963, have failed and refused to bargain collectively with the Union as the representative of their employees in an appropriate unit . Respondents have filed an answer denying the commission of any unfair labor practices. Pursuant to due notice, a bearing was held before Trial Examiner Horace A. Ruckel at Santurce, Puerto Rico, on September 16, 17, 18, 21 , 23, 24, and 25 and October 14, 15, 16, and 17 , 1963, at which the parties were represented by counsel . Upon the close of the hearing the parties waived oral argument . Subsequently Respondents filed a brief. Upon the record as a whole, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondent Cameo Lingerie , Inc., is a Puerto Rico corporation which maintains its principal office and plant at Fajardo, Puerto Rico , where it is engaged in the manu- 1 Sea Isle Manufacturing , Inc., was added as a Respondent at the hearing. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facture, sale, and distribution of ladies' lingerie. Respondent annually causes finished products valued in excess of $50,000 to be sold, delivered, and transported in inter- state commerce to and through the States of the United States and to other points outside the Commonwealth of Puerto Rico. During the year prior to the issuance, of the complaint Respondent Cameo Lingerie, Inc., purchased and received goods and materials valued in excess of $50,000 from enterprises which in turn received said goods and materials directly from points outside the Commonwealth of Puerto Rico. Respondent Sea Isle Manufacturing, Inc., is a wholly owned subsidiary of Respond- ent Cameo Lingerie. The two corporations have common offices and a single plant manager, plant office, and labor policy. The two plants are adjacent to one another and constitute a single integrated enterprise. Respondents' answer admits that both Respondents are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization admitting employees of both Respondents to membership. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union undertook the organization of Respondents' employees during the mid- dle part of August 1962 2 The drive for the signature of union authorization cards reached its peak in the following December and in January 1963. The complaint alleges, and the record shows, that after a substantial number of cards had been signed, a union representative, on March 4, 1963, about 4:30 p.m., handed Leo Black, plant manager, a letter claiming designation of the Union as bargaining agent by a majority of Respondents' employees and offering to prove its majority by a card check. Black stated that he had no authority in the matter but that he would refer the Union's request for recognition to his superiors in the States. Four days later, on March,8, the Union filed with the Board's Regional Office a charge of refusal to bargain collecively. This charge was withdrawn on April 11. The complaint asserts that this was done because Respondents on March 18, in reply to the union letter of March 4, accepted its offer to prove a majority by means of a card check conducted by an impartial third person. Respondents, while admitting that they accepted the principle of a card check, deny that they ever waived the right to go behind the signatures to the circumstances surrounding the signing , to show coercion. In any event, the parties from March 18 on were unable to agree upon a person or agency to make a check, regardless of its scope, and on June 4 the Respondents conducted an election among their employees which is hereinafter described. On June 7, 1963, the Union filed the charge of refusal to bargain upon which this com- plaint is issued. B. The alleged refusal to bargain 1. The appropriate unit The complaint alleges, Respondents do not dispute it, and I find, that an ap- propriate unit consists of all production and maintenance employees employed by Respondents at their Fajardo, Puerto Rico, plant, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 2. The Union's alleged majority in the appropriate unit On March 4, 1963, there were 263 employees of Cameo and Sea Isle in the ap- propriate unit. The General Counsel submitted in evidence the union designation cards of 137 employees. If these cards are found to be valid, the Union had a majority of five within the appropriate unit. The Respondents, however, attack the validity of these cards on three principal grounds- (1) Seventeen signatures were obtained by coercion and/or misrepresentation. The employees, it is asserted, were told that if they did not sign up they would lose their jobs if the Union came in and, anyway, the employee being solicited was the only one, or one of a few, who had not already signed a card; (2) five cards are stale, some of them having been signed as far back as the latter part of 1961, more than a year prior to the request for 2 For sometime previously however, the Union had endeavored to enlist the employees' Interest by distributing literature and engaging In other promotional activities. CAMEO LINGERIE, INC. 543 recognition, although they bear dates in 1962 and 1963 ; and (3 ) seven cards bear on their face dates subsequent to March 4, when recognition was requested, and three more bear the date of March 4. There is considerable testimony pro and con as to (1) and (2) which I do not find it necessary to consider since I find as to (3) that the General Counsel has not met his burden of showing that a majority of the employees in the unit signed cards prior to the request to bargain. There is no contention that any signature is fraudulent. But an -examination of the cards shows that many of them bear dates in handwriting different from that of the signatures and various employees called by the General Counsel and Respondents testified that they themselves did not fill in the date when they signed the cards . In no instance was such testimony denied by the union rep- resentative who obtained the signature. In numerous instances these representatives testified that the card was not dated in their presence and that they had no knowledge of who inserted the date. Alberto Sanchez, director of organization in Puerto Rico for the Union, testified as follows on the point: Q. The organizer puts the date on them? A. They just put it on or take it to the girl to put the date on. Q. When did you first notice that some of these cards were undated? A. When they first came to me undated. Q. I mean the time element, the date. When did you first notice? A. . When the cards are handed to me and they are undated I first hand them to the organizer or take them back to the girl to put on some date. Since each of the several organizers who solicited membership in the Union and testified said, as to every card they were asked about (where the date was in a handwriting different from the signature ), that she had no knowledge of who filled in the date, or when, the "girls" whom Sanchez. instructed to put "some date" on the cards were obviously persons other than those who obtained the signatures. It does not appear how these persons could have known when these cards were signed. In six instances the "some date" so affixed was a date not only after March 4, 1963, but an impossible date: that is, a date which had not yet arrived. Thus, a card signed by Anibal Arroyo bears the date of December 13, 1963; one signed by Rosa Burgos, December 12, 1963; one signed by Angelina Maldonado, Decem- ber 3, 1963; one signed by Ana Normandia, December 31, 1963, one signed by Margarita Pinero, December 8, 1963, and one signed by Georgina Ruiz, Decem- ber 27, 1963 . Since these persons were not called as witnesses , and since there is no other evidence to indicate when these cards were in fact signed, it cannot be assumed that they were signed prior to March 4, 1963., Three other cards, those of Carmen Mulero, Lucy Quinonez, and Ana Lebron, bear dates of March 4, 1963. These persons did. not testify and there is nothing in the record to warrant a presumption that these cards were signed before 4:30 p.m. on March 4, the time when the Union requested recognition of Manager Black.3 The Board has held that cards will not be counted when signed on the same day as the request for recognition unless it is shown that the signing preceded the request .4 Since the nine cards specifically mentioned above may not be included in arriving at the Union's majority, and since without them the Union did not have a majority at 4:30 p.m. on March 4, 1963, it follows that the allegations of the complaint that Respondents failed and refused to bargain on that date must be dismissed. I do not find it necessary, therefore, to consider the other grounds advanced by Respond- ents for finding that the Union did not have a valid majority. C. Interference, restraint, and coercion 1. Interrogation; statements opposing the Union Emilia Rodriguez testified that on or about March 6, 1963, in the women's rest- room, she heard Natividad Agosto, a forelady, state that she was thinking of paying off all her debts before the factory was closed. Sara Burgos testified concerning the same incident that Agosto said , in substance, that she was going to pay all her debts because if the Union got in the factory would shut down. She also testified that Agosto made a similar statement to the same effect later in March. Agosto 3 The plant closed at 4:30 p .m. No assumption can be based on this fact, however, since the record shows that-the practice of the organizers was to solicit membership at the homes of the employees rather than at the plant. * See Brezner Tanning Co , Inc., 50 NLRB 894. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied making these statements. I credit the testimony of Rodriguez and Burgos that Agosto made in substance the statements attributed to her. I do not find that they were coercive in the context in which they were uttered. Moreover, Agosto was a minor supervisor, and there is nothing in the record to show that higher management authorized these statements or had knowledge of them. Felicite Compos testified that on a day in March, apparently March 8, when she was passing a poolroom on her way home from shopping, she was hailed from inside the poolroom by Plant Manager Black who asked her what Chiqui, a union organizer, had said to her earlier that day in a conversation. Compos answered, according to her testimony, that Chiqui had said that Black was a liar if he said that the plant would shut down if the Union came in. Her further testimony was, when first asked, that Black replied that he had nothing to do with closing the plant and that "if it was up to him he would leave the factory working. He would leave it open, but that wasn't up to him. The big bosses decided that." The General Counsel returned to this point later and the witness then stated that Black said that the "higher-ups told him that if the union got in he should close the factory." This testimony as to what Black said, clearly coercive if Compos is to be believed, was induced in the following fashion: Q. (By Mr. SIMONPIETRI.) What did he say to you,when he mentioned that he had instructions from his superiors . . ? Well you tell us the words he stated to you with regard to the closing of the plant because of the union? TRIAL EXAMINER: Just a moment. Did you say that Mr. Black said he had instructions of any kind? I understood her to say that Mr. Black said it was none of his business and the instructions came from the higher ups . . It was not that he had any instructions of any kind, but that if he had they came from higher up. Q. (By Mr. SIMONPIETRL ) Did he say what instructions he had had? TRIAL EXAMINER: Is there any evidence that he had any instructions? . . Did he say he had any instruction? The WITNESS: Well, of course he did, because when he told me that he was not the one who was interested in closing the factory if the union got in that it wasn't him, but higher-ups, or the owners. Well, he meant that the higher-ups were the ones who said that they would close the plant if the union got in. Black's account is that Compos stood in the door to the poolroom while he was playing pool and started the conversation by saying that she was sorry she had joined the Union. Black alternately played his shots and returned to the door to talk with her, while leaning on his cue, but he did not say that he did not want to close the plant or that the "higher-ups" would close it if the Union came in I credit Black's denial that he told Compos that the plant would, or might, be closed if the Union organized it. This was not Compos' original testimony. Her eventual, changed, testimony was induced by leading and suggestive questions and by assuming facts not in the record. I do not credit it, particularly since the con- versation was conducted partly in English, in which Compos is not fluent, and partly in Spanish, which Black does not speak.5 2. The poll of the employees After the Union's request on March 4, 1963, for recognition on the basis of authorization cards, the parties entered into a correspondence which continued, with lapses, until a poll which Respondents took of their employees on June 4. The Union, in its letter of March 4, suggested a card check to be conducted by a mutually satisfactory third party. Respondents, in their answer of March 18, accepted the principle of a card check and suggested the name of a person to conduct it. This person was not satisfactory to the Union, which then proposed other names. No such person was ever agreed upon. In addition to the question of who should conduct the card check, was Respondents' insistence, in letters subsequent to March 18, that such a person should check not only the validity of signatures, but-(letter of April 5) "as to whether employees had knowledge as to what they were signing on said cards, etc , and if the authority granted by the cards has not been withdrawn, and if the count 'shows that a majority of the production and maintenance employees of the plants want the ILGWU to represent them " - - •- s Compos stated that when she failed for want of an English word she resorted to Spanish. ROYAL PLATING AND POLISHING CO., INC. 545 It is evident that such questions could best be settled by an election, and in a letter of May 15 Respondent suggested that the parties consent to an election to be con- ducted by the Board, or one conducted by the Respondents. In the latter event the parties were to select jointly the person to conduct it and to agree on the scope of his duties. The Union, on May 23, rejected both alternatives and repeated its insistence on a check of cards. This was the last correspondence on the subject, and on June 4 Respondents conducted a poll on the floor of the plant during working hours. Black, previous .to the poll, told the employees assembled in a meeting that it would be conducted by two local judges, and that it would be secret. He further declared that if the Union won he would bargain with it. Ballots were passed out asking for a check in a square opposite a "yes" or "no" to the question as to whether the employees wished to have the Union. The record does not disclose any anti- union statement or interrogations uttered during the election. According to Black the result of the balloting was unfavorable to the Union, but it does not appear whether it was announced to the employees. Conclusions The Board held in its Blue Flash 6 decision that interrogation of employees is not unlawful unless coercive. The taking of a poll is a form of interrogation, and the same test applies? It is not violative of the Act unless it is conducted in a context, or against a background, of coercive or discriminatory statements or activities, or when the purpose of the poll is to undermine the Union. I find no such background or purpose here. Black testified credibly that numerous employees told him at the plant, and came to his house to tell him, that they did not wish to be represented by the Union though they had signed up for it. As has been found, the Union did not in fact have a majority among the employees on March 4, 3 months before the poll, when it demanded recognition. I find Respondents had a good-faith doubt that a majority of the employees had designated the Union as their representative. When Respondents suggested an election to be conducted by the Board or arranged by the parties the Union rejected the suggestion and continued to insist on recognition on the basis of a card check. In the absence of a coercive context or background I find that Respondents, by polling their employees, did not violate Section 8(a) (1) of the Act. CONCLUSIONS OF LAW 1. Cameo Lingerie, Inc., and Sea Isle Manufacturing, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The preponderance of the evidence does not establish that Respondents engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER The complaint should be, and hereby is, dismissed. 6 Blue Flash Empress, Inc., 109 NLRB 591. 7 See Emma Gilbert, at at., individually and as Co-Partners d/b/a A. L. Gilbert Com- pany, 110 NLRB 2067, 2072. Royal Plating and Polishing Co., Inc. and Metal Polishers, Buffers, Platers and Helpers International Union , Local 44, AFL-CIO. Case No. £2-CA-1640. August 27, 1964 DECISION AND ORDER On February 3, 1964, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set 148 NLRB No. 59. 760-577-65-vol. 148-36