Gotham Shoe Manufacturing Co., Inc.

862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gotham Shoe Manufacturing Co., Inc. and United Shoe Work- ers of America, AFL-CIO. Case No. 3-CA-2184. November 19, 1964 DECISION AND ORDER On July 20, 1964, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, a sup- porting brief, and a request for oral argument.' The General Coun- sel also filed exceptions to certain of the Trial Examiner's findings and conclusions and the Respondent thereafter filed a brief in answer to the General Counsel's exceptions. 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 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case,2 and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the additions and modifica- tions noted herein .3 1 Because in our opinion the record , exceptions , and briefs adequately set forth the issues and positions of the parties , this request is hereby denied 2 The Respondent's exceptions to the Trial Examiner's Decision and supporting briefs are in large part directed to the credibility resolutions of the Trial Examiner. The Board will not overrule the Trial Examiner 's resolutions as to credibility, unless a clear pre- ponderance of all relevant evidence convinces us that they are incorrect . Upon the entire record, such conclusion is not warranted here. Standard Dry Wall Products , 91 NLRB 544, enfd 188 F. 2d 362 (C.A. 3). 3 The Board adopts the Trial Examiner's finding that the Union represented a majority of the employees in the appropriate unit when Respondent rejected its request for recog- nition and bargaining in violation of Section 8(a) (5) of the Act. The General Counsel excepts to the Trial Examiner' s failure to include the authoriza- tion cards of employees Morabito and Murry, in determining the Union's majority status. These cards were dated September 28, 1963, the day on which the Respondent first re- jected the Union's request for recognition . As we find in agreement with the Trial Examiner that the Union had a clear majority at the time of Respondent' s refusal to bargain , without counting these two cards, we find it unnecessary to pass on the question of whether they could properly have been included As to the validity of the authoriza- tion cards generally , in adopting the Trial Examiner 's conclusion with respect to the Union's majority status Members Fanning and Brown rely upon their positions in Cumberland Shoe Corporation, 144 NLRB 1268, cited by the Trial Examiner and Chairman McCulloch joins in reliance upon the principle applied by Member Fanning in that case. (Cf. also S N.C Manufacturting Co., Inc, 147 NLRB 809.) The panel members, however, do not adopt or pass upon the Trial Examiner's analysis of the holding in Englewood Lumber Company, 130 NLRB 394. 149 NLRB No. 80. GOTHAM SHOE MANUFACTURING CO., INC. 863 1. The Trial Examiner found that Plant Superintendent Anthony Testani called employee Anna Balanda into the stockroom and, in the presence of Floorlady Rose Boezi, told Balanda that if she were caught talking union during working hours she would be fired; that in the latter part of September, Testani sought out Clarence Young, a union committeeman, and told him to tell employees Farnham and Morabito to stop talking to other employees about the Union and about joining the Union-that they could be "fired for that"; and that on October 2, while employees Robert Douglas and Raymond Heatherman were talking about the Union during their lunch period, Testani came over and told them "not to discuss the Union on Com- pany time or they could get fired." Several employees testified that they knew of no instructions not to talk about the Union; that they knew of no posted rule which restricted employees from talking about the Union; and that they knew of no formal order restricting discus- sion of the Union in the plant. We adopt the Trial Examiner's fac- tual findings, but find merit in the Genera Counsel's exceptions to the Trial Examiner's conclusion that there was no company rule prohibit- ing discussion and solicitation on behalf of the Union. The facts found by the Trial Examiner demonstrate that Plant Superintendent Testani promulgated and applied, on a very limited and discrimina- tory basis, a no-solicitation rule forbidding the discussion of the Union and solicitation for representation purposes. That this inter- diction was intended to forbid solicitation and union discussion on company property during nonworking time is evident from Testani's cautioning of employees Heatherman and Douglas while they were engaged in a discussion of the Union on their own time, namely, their lunch period. Accordingly, contrary to the Trial Examiner, we find that the Respondent promulgated a broad and presumptively unlaw- ful no-solicitation rule which it discriminatorily applied, and that the Respondent thereby unlawfully interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act.4 ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board, with the following modifications, hereby adopts, as its Order, the Order recommended by the Trial Examiner, and orders that the Respondent, Gotham Shoe Manufacturing Co., Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order as amended herein : 4Walton Manufacturing Company, 126 NLRB 697, enfd 289 F 2d 177 ( C A. 5). Harold Miller, at at., Co-Partners, d/b/a Miller Charles and Company, 148 NLRB 1579; Park Edge Sheridan Meats, Inc., et at., 146 NLRB 289; The Bin-Dxcator Company, 143 NLRB 964, 981. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Inserting after paragraph 1(f) the following new paragraph and relettering 1(g) and (h) to (h) and (i), respectively. "(g) Promulgating, maintaining, enforcing, and applying an in- valid no-solicitation rule." 2. It is further amended by adding after the fifth indented para- graph in the Appendix the following : •WE WILL NOT promulgate, maintain, enforce, or apply any invalid no-solicitation rule. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges other violations of Section 8(a) (1) and (3) of the Act not found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before Trial Examiner James R. Webster in Binghamton, New York, on January 27 through 31 and February 10 through 13, 1964, on complaint of the General Counsel as amended at the hearing and answer of Gotham Shoe Manufacturing Co , Inc , herein called Respondent. Complaint was issued herein on December 4, 1963, and the charge was filed on October 15 and amended on October 22 and November 22, 1963. The complaint alleges that the Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation, is engaged in the manufacture, sale, and distribution of shoes and related products. During the past 12-month period, Respondent purchased and received at its Binghamton, New York, plant leather and other materials valued in excess of $50,000, of which leather and materials valued in excess of $50,000 were transported to said plant directly from points outside the State of New York. During the same period Respondent manufactured, sold, and distributed at said plant products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from said plant directly to points outside the State of New York. It is found that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Shoe Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The principal issues in the case are: (1) whether or not several of Respondent's supervisors during September and October 1963 made statements or engaged in conduct coming within the proscriptions of Section 8 (a) (1) of the Act; (2) whether or not Respondent discharged employee Nancy Morabito on or about October 1, 1963, because of her union activities; (3) whether or not the Union represented a majority of employees of Respondent in an appropriate unit on or about August 28, 1963; and (4) whether or not the Respondent thereafter refused to bargain with the Union under circumstances as would come within the Joy Silk Mills doctrine.1 1 Joy Silk Mill8, Inc., 85 NLRB 1263, enfd . as modified 185 F. 2d 732 (C.A.D.C ). - GOTHAM SHOE MANUFACTURING CO., INC. 865 A. Prefatory statement During the summer of 1963 the Union conducted an organizational campaign at Respondent's Binghamton plant. Signatures on authorization cards were solicited and obtained, and a series, of meetings with employees was held. On August 22, 1963, the Union sent a letter to the Respondent informing the Respondent that it represented a majority of its employees, and it requested a meeting to discuss an agreement. Upon receipt.of this letter on August 23, Jesse Klingman, secretary of Respondent, accompanied by Anthony Testani, plant superintendent, made a survey of the vari- ous departments of the plant to determine whether a majority of the employees wanted to be represented by the Union. The conclusion Klingman reached in his survey was that the Union did not repre- sent a majority, and he reported this to Herbert Davis, vice president of Respondent. A letter was dispatched to the Union on August 28 advising it that Respondent ques- tioned the Union's majority status and declined recognition. Prior to receipt of this letter the Union had prepared and forwarded to the Board's Buffalo Regional Office a petition for certification of 'representatives, which was filed August 30, 1963 A representation hearing-was held on September 16, 1963, a Decision and Direction of Election was issued on September 26, 1963, and an election was scheduled for Octo- ber 15, 1963. The election was postponed indefinitely by order of the Acting Re- gional Director on October 14, 1963, and the original charge herein, alleging violations of Section 8(a)(1) and (3) of the Act, was filed on October 15, 1963. It was amended on October 22 to add an allegation of a refusal to bargain. B. The alleged violations of Section 8(a) (1) 1. Statements and interrogations by Plant Superintendent Testani and Foreman Sablich Evidence was adduced that Plant Superintendent Anthony Testani and Foreman Michael Sablich made coercive statements to employees (a) at the plant during September and October 1963; (b) at a meeting with a union committee of employees at Swatt Sullivan's Tavern on October 1 , 1963 ; and (c ) at Angie's Tavern on Octo- ber 5, 1963 ; and that Testani and Sablich interrogated employees regarding union activities in September and October 1963. On or about September 6, 1963, Foreman Michael Sablich asked Nancy Morabito, the alleged discriminatee, where she went on Tuesday nights , the nights of the weekly union meetings ; and she told him she went to union meetings. He told her that if the Union comes in, he knows that they will shut the place down because they cannot afford to pay union wages . A few days later Sablich asked Morabito what the letters "AFL-CIO" on her union buttons meant; she was wearing two union buttons. She replied that she did not know . He stated that he was not going to worry about her as she was only temporary and was going to be fired anyway. Also in September 1963 , Michael Sabhch had a conversation with employee Ray- mond Heatherman about the Union . Heatherman broached the subject by telling Sablich he heard that the Company had made a lot of money the last year . Sablich replied that -the report was a "lot of hogwash"; that if the Union got into the plant it would be turned into a warehouse ; that they did not neeed the employees to make shoes; and that they could buy the shoes and store them and resell them. On or about October 11, 1963 , Heatherman had a conversation with Superintend- ent Testani . This was on the day after a union party at Lou 's Tavern. Testani asked Heatherman who was , at the party and how many were there. Heatherman told him that about 40 or 50 employees were there, and Testani asked him if cer- tain named employees were there. Employee Robert Douglas was also interrogated_ by Testani following the union meeting at Lou's; he was asked who was there, how many were there, and what was said. On or about October 10, 1963, at the plant, Foreman Sablich asked employee Earl Lindsey if he was going to the union party . The party was to be held at Lou's Tavern. He asked Lindsey to go down and come back and let him know who was there Lindsey attended the party but stated that Sablich did not ask him again about it, and he gave Sablich no information about the party. 2 Douglas placed the, date of the meeting as October 9 and of the interrogation as Octo- ber 10 ; the variance of 1 day with the testimony of Heatherman is inconsequential. 7 70-076-65-vol. 149-56 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that by the conduct and statements set forth above, Superintendent Testani interrogated employees and Foreman Sablich interrogated, threatened, and inter- fered with employees within the meaning of Section 8(a)(1) of the Act.3 I find hereinafter that Morabito was a temporary employee and that her termination was not discriminatory; nevertheless I conclude that.'Sablich's statement,,to her that he was not going to worry about her as she was only temporary and was going to be fired anyway, uttered in conjunction with an inquiry about her union buttons, con- stitutes an interference within the meaning of Section 8 (a)( 1 ) of the Act. ' On October 1, 1963, there was a meeting at Swatt Sullivan's Tavern after work which was atteended by a union committee of employees and by Testani and Sablich. The employees who attended were, Donald Knott, Clarence (Pep) Young, Frances Young, Alice DeMaria, William Osborne, Michael Ambrose, and Clifford J. Barton. The meeting was brought about as a result of a conversation that morning between employee Donald Knott, a member of the union committee, and Superintendent Testani. Knott was in Testani's office on another matter, and Testani informed him that the representation election would be coming up pretty soon. He then stated, "I'm not going to tell you how to vote, but I think you. guys could, get a lot more accomplished without the Union." Knott asked what he meant. Testani replied that the Company was "leery" of the Union and did not want the Union in. He asked Knott what were some of the things they were trying to get through the Union. Knott mentioned a seniority plan, machine break-down time, and a retire- ment plan. Testani stated that they could work something out; that they had worked out the vacation plan and the medical plan without a union; that if they sat down and talked to the company officials he thought they could get things accomplished now, whereas if they waited for a union to get in, it would take 6 months or longer before benefits could be realized. Knott asked him if the employ- ees should go along with this line of thinking, how would they know whether the Company would stick by its word. Testani replied that they could go down to a lawyer and get it drawn up in a legal document and have it signed. He asked Knott to think it over and, if he came around to Testani's way of thinking, to talk to some of the other employees. - After lunch that'day, Testani asked Knott if he had'talked to anyone about the matter. Knott stated that he had not, and he suggested that if Testani had some- thing to say to the employees, he should talk to them himself and tell them-the Company's side in the matter. Testani asked Knott to get some of the guys together. Knott suggested the union committee, and Testani replied, "Fine; get them together and tell them I will meet them upstairs in the ladies' lounge at 2 o'clock." Knott contacted those he could locate and sought Testani to report that the, meeting was set up Testani was talking with Jesse Klingman, secretary of Respondent, as Knott approached. Knott waited for Testani to complete his conversation with Klingman, and then Testani told him, "Make it 3 o'clock at Swatt Sullivan's because you're not supposed to be taking union in the shop." Three o'clock is the time when many of the piece-rate employees complete their workday. The meeting was then held at Sullivan's at 3 o'clock that afternoon with Testani and - Sablich and those members of the union committee as named above. Employees Clarence Young, William Osborne, Clifford Barton, and Donald Knott testified in substantial accord about this meeting. Testani told them he thought they could get everything they wanted without the Union. Young interposed that they had been promised a lot of things before and that it had never worked out. Testani replied that this time they could get it in writing and'Ithat he could have a '81 credit the testimony of Moiabito, Heatherman, Douglas, and Lindsey as set forth above, and discredit the flat denials by Sablich and Testani Heatherman, on cross- examination , readily admitted that he brought up the subject of the Union in his dis- cussion with Sablich, and admitted having two fights at the plant on or about October 1, 1963 Testani denied having any conversations with employees about the Union. He was asked on cross-examination, "Didn't you participate in discussions with various employees when they would bring the subject [Union] up?" Testani answered, "No, sir. The only thing I discussed with employees was when they were sitting in my office and they were talking between themselves One guy would say, 'We should have a Union' The other one would say, 'I don't know.' One guy would say, 'Tony, what do you think?' I said, 'I don't have nothing to do with it . . . It's none of my business.' " In view of all the testimony to the contrary, I cannot credit his statement that he said nothing on the sub- ject. The same is true of the testimony of Sablich. He denied participating in any general discussion about the Union or its merits. He stated, "I would just sit there and listen, that's all, just sit there and listen and walk out. You would hear talk all over the shop " GOTHAM SHOE MANUFACTURING CO., INC. 867 lawyer put it in a legal document. He stated he knew a lawyer that he could get at no cost to the employees. He told them they could get together and get a sen- iority plan and a pension plan the way they got the insurance plan some years ago. -, Testani and Sablich testified regarding the meeting at Sullivan's and where it -diff6fs ffoin°that'`set forth'above, and-it does in substantial, regard,,I cannot credit it. Testani stated that his remarks to the committee were limited strictly to an explanation of a $234,000 profit the Respondent is alleged to have made. When they inquired of him about other matters, such as pensions or price adjustments (on piece-rate work), he stated that he refused to discuss these matters with them. He stated he replied, "Wait a minute, fellows, just a minute. I didn't come down here for that. I was asked to come down and explain the $234,000. Don't ask me anything about price or anything else, because I have no authority to work out anything with you people or with anybody else in the plant." On cross-examina- tion he stated, "They told me and they asked me if I had the right to adjust prices. I said that I always had for years. I never promised to adjust prices with them." In his affidavit (General Counsel's Exhibit No. 21) Testani stated, "They asked me 'What they could get out, of, the company without the Union. I told them I wouldn't promise 'anything. They 'would-have to see Mr. Davis or Mr. Klingman. . I was asked and told them I had authority to adjust prices, as I had been doing for years. They asked me if I would put-it in writing. I told them I would have to check with the company." In his affidavit Testam did not mention discussing the alleged $234,000 profit. Alice DeMaria, one of the union committee members, was called as a witness by the Respondent. She had left Binghamton, New York, on October 15, 1963, to take up residence in Florida because of her health. She was undecided as to whether or not she would return to Binghamton to live. Her testimony corrobo- rates that of Testani as to what transpired at Sullivan's on October 1, 1963. She stated "they discussed the profit that Gotham made which Tony said that there was no profit, that he had proof of it. And they started discussing about benefits and paid. vacations among ourselves, and then they questioned Tony; and Tony said he had no right to say anything'about'that." ' She'testified that the only thing Testani discussed was the alleged profit of the Company; other matters such as paid vaca- tions and holidays, she stated the employees discussed among themselves and "then asked Tony about it, and Tony said he had no right to answer those questions." The testimony of Mrs. DeMaria is of questionable credibility. On cross-exami- nation she stated at one point that nothing was said at all about a contract; and at another point she was asked, "Didn't Mr. Testani say that he had no authority to give them a contract?" And she answered, "They asked him so many questoins. If they asked him about that, I know Tony said no, because he had no authority what- sover." In another place in her cross-examination she stated, "When they [the com- mittee members] started questioning him [Testani] about a contract, benefits and all that, be said he had no authority to answer it." She stated that the only thing Testani would discuss with the committee was the alleged profit of the Company, and as to anything else he replied each time that he had no authority to answer questions on these other matters. Michael Sablich also testified about the conversation between Donald Knott and Testam on the day of the meeting at Sullivan's. The morning of the meeting he took Donald Knott into the office of Testani to see about getting him some makeup time for time spent in repairing his machine. This was handled, and then Sablich testified that "I think him and Tony started. talking about that $234,000 that Gotham Shoe made so much or' something, was suppose to be making or something." He stated that "I stayed there for a while and then I went out. Somebody's always call- ing me." He also testified that he was there the entire time that Testani was there and that Testani left the room ahead of him. He denied that Knott made any of the statements to Testani or that Testani made any of the statements to Knott as testified to by Donald Knott. He denied that anything was discussed in Testani's office other than the makeup time and "something about this $230,000 or $234,000 or something." In view of the nature of the meeting, and my observation of the witnesses, it appears to me that the testimony of the union committeemen seems more plausible and credible than that of Testani, DeMaria, or Sablich. On or about October 11, 1963, Knott had another conversation with Testani, with employee Clifford Barton and Foreman Sablich being present. Testani stated that if the employees went along with,the Company they could get the benefits such as price adjustments and pension and seniority plans quicker. He stated that the medical plan was one of the best in the area except for some of the larger factories and that if the 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union got in , there would not be a law in the land that would compel the Company to keep the medical plan.4 I find that by this threat of discontinuance of the medical plan, and by offer to deal directly with employees , and by promises to improve employee benefits made by Testani on October 11 and at Sullivan 's on October 1, Respondent violated Section 8 (a) (1) of the Act. Employee Robert Douglas testified as to interrogation and promises by Testani which occurred on or about the evening of October 5, 1963, at a gathering of per- sonnel of Respondent at Angie's Tavern; he also testified regarding the adoption by Testani of a threat of loss of employment made by employee Charles Seraydarian. This conduct is denied by Testani and by three other witnesses who were present in the group (Foreman Sablich and employees Charles Seraydarian and Anthony Stilloe, Sr.). Employee Esther Fuller accompanied Douglas to this gathering but was not called as a witness, although Douglas testified that she was also interrogated by Testani. I have reservations as to the credibility of all witnesses to this incident-I question that nothing at all was said about the Union as testified to by Respondent's four witnesses , and I question that as much was said about the Union as testified to by Douglas . My basis for questioning the credibility of Douglas as to statements made by Testani at this party is that (1) no other witnesses, testifying to statements by Testani, attribute statements of the same bluntness or directness to him, i e., that Testani offered to give him more money if he would get out of the Union , and asked him how he was going to vote; (2) Fuller who accompanied Douglas to the party was not called to testify about these statements ; and (3 ) the testimony of the four witnesses of Respondent cannot be completely ignored. For these reasons I con- clude that there is insufficient evidence on which to base a finding of coercive state- ments by Testani at Angie's Tavern. As to the alleged statement of Seraydarian, I am inclined to the view and find that he did state to Douglas that evening that if the Union came in, the factory would close up and Douglas would be on the outside looking in.5 Douglas testified that Testani was present and said nothing following Seraydarian's remark; but in a setting such as existed here with a group of persons congregated in a tavern , I conclude that there is insufficient evidence upon which to base adoption by Testani of the remark by Seraydarian ; the evidence does not estab- lish that Testani was any more than present with the group when Seraydarian made his remark to Douglas. 2. Instructions not to discuss the Union At sometime between July 1963 and October 15 , 1963, employee Anna Balanda was called into the stockroom in the presence of Rose Boezi, the floorlady, and told 4I discredit the flat denials by Testani and Sablich of any part of this testimony, item by item Knott was very straightforward and completely convincing as a witness 51 discredit Seraydarian 's denial. On cross-examination he was a very evasive and' contradictory witness, as illustrated by the following: Q. Now sir, did there come a time when you went in to talk to Mr Klingman about the union' A. No, sir. When Mr Iilingman was walking about in the factory and he'd come- by-well , I know the man for thirty years I got to talk to him. It's a free country, I hope Q Did you talk to him, sir, about the Union A. Sure I did * * * * * * * Q This is prior to the time that the election was set for-do you remember that the election was set for October the 15th') Did you talk with Mr Iilingman prior to that time about the union 1 A. I talked to Mr. Klingman every day I saw him. Q About the union A. Any time I see him I talk to him. Q. I am not asking you if you talked to him ; I am asking you if prior to the elec- tion, which was set for October the 15th, if you talked with Mr. Klingman about the union? A. No. Q Never? A. I have talked to the man I just got through telling you. Q About the union, sir? A I never talked to him about the Union. He also denied talking with Sablich and with Testant about the Union. GOTHAM SHOE MANUFACTURING CO., INC. 869 by Testani that the employees were not supposed to talk union during working hours, and that if she were caught talking union during working hours, she would be fired, and not even the Labor Board would help her. Robert Douglas testified that on or about October 2, 1963, he was having a talk about the Union with employee Heather- man during the lunch hour. Testani came over and told them not to discuss the Union on company time or they could get fired. Employee Heatherman corrobo- rates this testimony. In the latter part of September 1963 Testani sought out Clarence Young, a union committeeman, and told him that he would have to talk to Ralph Farnham and tell him to keep quiet; that every time he went upstairs he was talking to the ladies about joining the Union. Young told him that he would see that he did not do it any more unless it was during the noon hours or before or after work. Testani pointed out Nancy Morabito and stated, "Here's another one here. Tell her to keep quiet. You tell her and Ralph to keep quiet. They can be fired for that." Young told Testam that he would talk to them right away and he then talked to both Ralph and Nancy ,on the matter. Several employees testified that they knew of no instructions not to talk about the Union and that they and other employees did so freely. Clifford Barton testified on cross-examination that he knew of no rule of any kind posted that restricted employ- ees from talking about a union; and that the employees talked openly about the Union in the plant. William Osborne testified that he knew of no formal order issued by the Company restricting discussion of a union in the plant and that there was general discussion about it in the plant. I find no evidence to support paragraph 6(g) of the complaint that Respondent instructed employees not to discuss the Union on their own time. I find that employ- ees were admonished not to discuss the Union during working hours, and I find }that there was no Company "rule" on this matter; however, I find that Testam's admonitions to employees not to discuss the Union during working hours did not constitute a violation of the Act, as alleged in paragraph 6(h) of the complaint. 3. Interrogation by Floorlady Boezi Kathleen Pond testified that in the early part of October 1963, at her worktable, Floorlady Rose Boezi asked her which way they were going to vote-for or against the Union. Pond replied that she was going to vote against it. Pond does not recall whether any one else was within hearing range of the conversation at that time. Boezi acknowledged the conversation. She stated that the girls were congregated around their work areas, and "I asked, kiddingly, how the girls were going to vote; and kind of kiddingly back, they told me to mind my own business" On cross- examination Miss Boezi stated that she asked three girls how they were going to vote (Margaret Martaugh, Helen Sodan, and Bessie Westbrook) and may have asked one or two more. I find that Floorlady Rose Boezi illegally interrogated employees in her depart- ment as to how they would vote in the union election. Her description of her man- ner as "kidding" is conclusionary and not borne out by other testimony or evidence. 4. Letters and statements distributed to employees Letters and statements were distributed to the employees over the signature of Herbert Davis, vice president of Respondent, dated October 2, 9, and 11, and are identified as General Counsel's Exhibits Nos. 3, 4, and 5 The General Counsel contends that the letter of October 2 gave the impression of surveillance of union activities by the following part of the letter. Mr. DeNovellis, the outside Union organizer, told the newspaper that there were about 50 people at a meeting last Tuesday night. Something like 15 would be closer to the truth. The letter of October 9, 1963, forwarded to the employees a copy of a speech delivered to them on October 9, 1963, at 11 a.m by Jesse Klingman, secretary of Respondent. The General Counsel pointed out the following statements contained in this speech as constituting a violation of Section 8(a)(1) when considered in con- text with other alleged threats: For some of you old time employees, you will remember that there used to be two other shoe factories here in town, Truitt Brothers and Ramsey's. At one time, all three of us were unionized by the CIO. In 1941 our employees decided they did not want the Union any longer. Truitt and Ramsey, not being able to stand the demands made by the Union, moved out of town. These are 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facts. This is not fiction You all remember them. You all know what hap- pened.... Tony Testani and Herb Davis are available to discuss your problems with any of your representatives.... The General Counsel contends that the letter of Davis dated October l1 to the employees with an attached newspaper clipping constitutes a thinly veiled threat that selection of a union might result in the closing of the plant or in its moving to another location. The ad is in the form of a question to Union Organizer DeNovellis and is signed by Frank A. Johnson, chairman of the board, Endicott Johnson Corporation, and the question is as follows: "What happened to Barry Footwear Co in Wilkes- Barre, Penna.?" The letter from Davis dated October 11, 1963, enclosing this ad, states that the best way to answer the Union's statements and stories is by reading the enclosed ad; and Davis also states that "you all know the answer. The Union demands closed them up and they moved out of town, throwing all their employees out of work." I agree with the contentions of the General Counsel as to these letters. The letter of October 2 indicates that Respondent, from some source, is well apprised of attend- ance at union meetings. The letter of October 9 threatens the employees with plant moving as a consequence of unionization; the letter also suggests direct deals between management and employee representatives. To the same effect is the letter of October 11. I find that by these letters the Respondent has violated Section 8(a)(1) of the Act by creating the impression of surveillance of union meetings, by threatening employees with the discontinuance and moving of its Binghamton plant as a consequence of unionization of its employees, and by suggesting direct deals between management and employee representatives C. Nancy Morabito's discharge Nancy Morabito was hired on August 23, 1963, to fill a position temporarily vacated by employee Frances Young, who left on August 24 for a 2-week vacation in Canada with her husband, Clarence Young. The position of Frances Young was that of cementer and sole layer on the "stitch-down hne," one of the production lines. Morabito was assigned this work Young returned to work on Monday morning, September 9, 1963; but commencing on September 4, and for several weeks there- after (until October 14), the cementer and sole layer on the "little-way line," Violet Labour, was absent from work because of illness in her family. Upon the return of Mrs Young on September 9, Morabito was retained and was assigned a variety of jobs in the last and making room; she pulled tacks, shanked, and cemented on both production lines. Records of Respondent show that Frances Young was absent from work again from September 20 through 27, 1963, inclusive; during part of this week, with both Young and Labour absent, Elva Laurinaitis, a skate riveter, assisted in the tasks of pulling tacks, pulling strings, shanking, and cementing . Mrs. Young returned to work on Monday morning, September 30, 1963. Morabito was laid off the following day, Tuesday, October 1, 1963, as she commenced work shortly after 7 a.m. Foreman Sablich informed her that he had tried to reach her at the close of work the prior day, but had failed to contact her before she left the plant. Laurinaitis continued to work in that department or work area until her termination on November 23, 1963. Labour did not return to work until Monday morning, October 14, 1963, approxi- mately 2 weeks after the termination of Morabito. Employees Stanley Gerlock and Bill Osborne did sole laying on the little-way line while she was absent. Morabito was not given any particular job assignment, but did whatever work was assigned to her by Foreman Sablich, including pulling tacks, shanking, cementing, and sole lay- ing as previously mentioned; she worked on both the little-way line and the stitch- down line, except that she did not do "sole laying" on the little-way line (Labour's job assignment).6 The reason assigned by Respondent for Morabito' s termination was lack of work and newest employee; but in her work area there was work for her at the time of her termination . This is established by the facts that (1) one employee, Violet Labour, 6 According to Production Manager Flint, sole laying on the little-way line is a job call- ing for more perfection than sole laying on the stitch-down line. There is general testi- mony that Morabito did sole laying, among other things, and that she worked on both lines ; but Clarence Young testified that Stanley Gerlock or another fellow, a little-way stitcher, did most of that work when Labour was off and that Morabito would prepare the work and get it ready for them The testimony of Foreman Sablich and employee Knott is in accord with this. GOTHAM SHOE MANUFACTURING CO., INC. 871 was temporarily away from work and (2) employee Elva Laurinaitis was assigned to assist- , employees in that department and continued to work there after Labour's return . Laurinaitis, admittedly, could not do the sole laying work, was not as versa- tile in the tasks she could perform, and was not as competent as was Morabito in the performance of these various tasks Also I note that Laurinaitis had been unsuccess- fully solicited for the Union by Morabito. The issue regarding Morabito is not whether there was work for her to perform, but whether under all the circumstances the selection of Laurinaitis for assignment to this work rather than Morabito was based on valid consideration or was based on the union activities of Morabito. Foreman Sablich stated that he desired to retain Laurinaitis in the employ of Respondent because she was a skate riveter and was needed for that work when Respondent was processing skates. Laurinaitis was employed on August 2, 1963, approximately 3 weeks prior to the employment of Morabito, although she had previously worked for Respondent. Respondent em- ployed at the time two other skate riveters-one, Vivian Angevine, was absent part of the time in August 1963. Laurinaitis continued to work for the Respondent until November 23, 1963; and there is a conflict in the testimony as to whether or not she continued to do skate riveting after October 1, 1963. I find from her testimony and that of Foreman Sablich that she did continue to do this work from time to time as the need for it occurred Clarence Young, Frances Young, and Donald Knott tes- tified on this point, but they were unable to testify conclusively as to whether she did or did not do skate riveting during October and November 1963, although they were not aware of her doing this type of work In connection with the recollections of Mr. and Mrs. Young on this point, I note that both of them were unable to recall the fact that Frances Young was away from work for the entire week of Septem- ber 23; from this I cannot conclude that their recollection as to Laurinaitis' particular work assignments or lack of assignments could be any better. The testimony of Laurinaitis is more credible.? Nancy Morabito was an active union adherent and solicited other employees to join the Union, although a number of other employees did the same. She was not on any union committee nor did she hold any position with the Union. Respondent had knowledge of her union activities from the fact that she prominently displayed two union buttons, had conversations as indicated in the prior part of this report with Foreman Sablich about the Union, and her union activities were called to the attention of Clarence Young, a union committeeman, by Superintendent Testani, also as mentioned in a prior paragraph of this report. Although the Respondent's judgment and motive in retaining Laurinaitis over Mora- bito may be subject to question, I cannot conclude that the General Counsel has sus- tained the burden of proof in establishing a discriminatory motive in the selection of Morabito for discharge rather than Laurinaitis There is not an abundance of evi- dence on the need or lack of need for a skate riveter during October and November 1963. Since Laurinaitis and Foreman Sablich testified that she continued to perform this type of work from time to time and since the contrary testimony of Mr and Mrs. Young and Donald Knott is uncertain, and in the absence of other evidence on this point (except that Production Manager Flint testified that "the skate season" was 7 Clarence Young was asked whether Laurinaitis riveted skates after Morabito was termi- nated and testified that "If she did, she didn't do enough for rile to miss her I didn't miss her," and that "She might have gone out and helped do a little bit of riveting. It's pos- sible " Donald Knott, in answer to similar questions, testified that "I don't know, I can't tell you As far as I know, she got laid off I don't know if she went back to work there or not," and that "I saw her just about every day out there. I don't know " He was also asked if Laurinaitis laid shanks and stated, "I don't know. I think she did, but 1'ni not sure." Frances Young was not asked specifically as to amount of time spent on skate riveting but stated that Laurinaitis "worked right there [in Young's work area] until she was laid off around Thanksgiving" Laurnaitis testified that she "continued riveting skates-let me see-up until about some time in September I can't tell you just when" ; that "there wasn't enough skates to keep three girls busy, so I went out in the other room" , that she did this "about three, four days at a time . . . until they got more skates out for me to be on them again" ; that she "was working there from Monday until Wednesday ; on Thursday and Friday, I'd be out on the skates, the same week " She was asked how much of the time after Octo- her 1 did she work with Frances Young and replied, "Well, just before I was laid off [November 23, 1963], I was working with Frances Young for about a week, a week or two weeks at a time " 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the summer months), I conclude that there was sufficient work of this nature to warrant the retention of a third employee to rivet skates as needed during October and into November 1963. I therefore also conclude that the termination of Morabito was not a violation of Section 8 (a) (3) of the Act. D. Refused To Bargain The issues are as follows: ( 1) whether or not the Union's request for bargaining, or recognition , by letter of August 22, 1963 , was an adequate request-in particular did it describe the appropriate unit with sufficient particularity? (2) Did the Union in fact represent a majority of the employees in the appropriate unit on August 22, 1963, the date of its request for recognition, and/or on the date of the Respondent 's letter refusing recognition , August 28 , 1963? In answer to issue number (2), it will be necessary to determine whether a majority of the employees authorized the Union to represent them as their collective-bargaining representative, or whether they had only authorized the Union to file a petition for an election conducted by the National Labor Relations Board. (3) Did Respondent engage in unfair labor practices subsequent to the Union's request for recognition, calculated to destroy the Union 's majority; and if so, does this conduct negate any good-faith doubt by Respondent as to the Union's majority and warrant a refusal-to-bargain order against him-provided the Union did in fact represent a majority of the employees in an appropriate unit at that time? (4) Was the Union's action in continuing with the representation case throughout the unfair labor practice proceedings inconsistent with a refusal -to-bargain charge, thereby relieving the Respondent of any obligation to bargain? 1. The appropriate unit and the sufficiency of the Union's request for recognition The Union's letter of August 22, 1963 , reads as follows: This will inform you that the majority of your employees at your plant have chosen the United Shoe Workers of America, AFL-CIO, to represent them in collective bargaining. In light of the above, we will make ourselves available to meet with you or your representatives to discuss the possibilities of reaching a satisfactory agree- ment by and between the parties. Will you kindly contact via telephone as to what date will be convenient for you. In the representation case, Case No. 3-RC-3234 , filed August 30, 1963, the petition described the appropriate unit as follows: Included all production employees including shipping and receiving ; excluded office and plant clerical , foremen and supervisors and all others excluded under the Labor Management Relations Act. At the representation hearing the , description of the unit in the petition was amended by the petitioner to read as follows: Including all production employees , including shipping and receiving employees; excluding office and plant clerical employees , professional employees , guards and all supervisors as defined in the National Labor Relations Act. There was no issue in the representation hearing as to the appropriateness of this unit; however, there was an issue as to the eligibility of five employees as to whether they were permanently or temporarily laid off. The representation hearing was held on September 16, 1963. On September 26, 1963 , the Regional Director for Region 3 issued his Decision and Direction of Election describing the appropriate unit as follows: All production employees including shipping and receiving employees employed by the Employer at its Binghamton , New York plant, excluding office and plant clerical employees , and all guards, professional employees and supervisors as defined in the Act. The decision found that the five named employees whose eligibility was in issue were ineligible to vote as having been permanently laid off, and they are not considered in this case. I find that the variance between the description of the unit as set forth in the Union's letter of August 22 and that found by the Regional Director in his decision of Septem- ber 26, 1963 , to be of no real significance . No question about the unit was raised in GOTHAM SHOE MANUFACTURING CO., INC. 873 the Respondent's letter reply of August 28. I find that the unit as described in the Union's letter of August 22 was of sufficient particularity as to appraise the Respond- ent of the unit the Union seeks to represent.8 2. Majority status of the Union ` The Union requested recognition on August 22, 1963; and Respondent, after investi- gating the employees' interest in the Union, refused to recognize or bargain with the Union on August 28. The Respondent contends that the majority status must be established as of the date of the request-August 22-and that the cards signed after that date should not be counted. I reject this contention and will count all authoriza- tion cards signed prior to August 28, 1963; 9 this finding has no significant effect on the majority status as there were only two cards signed between August 22 and 27, inclusive (the cards of Jennie Lee and Vivian Angevine, both signed on August 22). The total number of employees in the appropriate unit as of August 27, 1963, was 101.10 A majority of this number is 52. The total number of authorization cards signed prior to August 28, 1963, by employees in the appropriate unit is 73.11 The Respondent challenges many of the authorizations, primarily on the grounds that employees were induced to sign the cards on the representations that they were "only" for the purpose of securing a Board-conducted election; that other employees did not understand the meaning of the cards; and that some cards were signed after August 22, 1963, date of the Union's request to bargain. A general rule in evaluating authorization cards is that a duly signed card by an employee is what it purports to be on its face. In this instance it would be an authori- zation of the Union to represent the employee in collective bargaining with Respond- ent, his employer 12 Exceptions nullifying the written authorization do exist but have been narrowly construed. In Englewood Lumber Company, 130 NLRB 394, February 1961, the Board refused to count authorization cards based on the following con- siderations. The signatures of two employees, who were opposed to the union, were obtained on authorization cards by the representation that an election would be held in which a vote could be cast against the union as well as for it. About 10 employees testified that they were brought to the point of signature by the belief that an elec- tion would result prior to which opportunity for mature reflection upon the question of choice would exist. The union's solicitor of authorization cards told practically everyone he talked to that the cards would be sent to the Board so that a secret election could be held. The Board stated, "In these circumstances, considering only what the employees were told, and not what may or may not have been their 9 The Hamilton Plastic Molding Company, 135 NLRB 371 e Burton-Dixie Corporation, 103 NLRB 880, enfd 210 F 2d 199 (CA 10). "General Counsel's Exhibit No. 2 is a list of all employees on the payroll on August 22,. including those on sick leave or vacation and those added to the payroll from August 22 to 28, 1963, inclusive Page 7 of General Counsel's Exhibit No 2 sets forth the names of employees classified as watchmen and maintenance, machinist, and office employees ; these are not in the appiopriate unit and are not included in the tabulation (The card of one of the watchmen-janitors was introduced in evidence as General Counsel's Exhibit No. 10YYY. From the evidence and the contentions of both parties, I find that this employee, George Worden, is a guard and not in the appropriate unit.) A tabulation of the em- ployees listed in General Counsel's Exhibit No 2 who are in the appropriate unit totals 102 , but 1 employee on this exhibit, Genevieve Martin, left the employ of Respondent on, August 22, 1963, at 12 -02 p in , because of pregnancy. She was told that she could re- turn after the birth of her baby, but there is no contention made nor any evidence that she was on maternity leave, nor that she has returned to work as of the dates of the hear- ing. Since she was not employed on August 27, 1963, nor otherwise on the payroll on that date, I exclude her from the total of employees in the appropriate unit and also will not count her authorization card in determining union majority. n Three cards signed on and after August 28 are not counted, card of Nancy Morabito signed August 28; card of Robert Murray signed August 28; and card of Esther Fuller signed September 19, 1963 12 All authorization cards in this case read as follows after the date line: "I hereby authorize the UNITED SHOE WORKERS OF AMERICA AFL-CIO To Represent Me in Collective Bargaining With My Employer." - Following this are lines for signature, street address, city and State, home phone, name of employer, and department. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subjective reaction to what they were told, we do not think it can reasonably be said that the employees, by their act of signing authorizations, thereby clearly manifested an intention to designate the Union as a bargaining representative." In interpreting this Decision and in applying the rule in subsequent cases, the Board has limited this exception to situations where an employee signs a card upon the representation that the only purpose of the card is to obtain an election. In the Cumberland Shoe Corporation, 144 NLRB 1268, November 1963, the Trial Examiner, relying on the Board's decision in Englewood Lumber Company, 130 NLRB 394, held that 17 of the union's authorization cards were not valid for purposes of determining majority status because the employees who signed them testified that they were told, when they were solicited by fellow employees, that a purpose of the cards was to secure an election. The Board held, however, that the instant case is factually distin- guishable from Englewood Lumber. The following is quoted from the Board's Decision: 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 bargaining 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 there to negative the overt action of the employees in signing cards designating the Union as a bargaining agent, and the instant situation is not one in which the Union beguiled employees into signing union cards. In footnote 3 to the Board's Decision, it is pointed out that the solicitor of the signa- tures on authorization cards in the Englewood Lumber case 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 who were hostile to the union. Various employees in the Cumberland case testified to the following statements by solicitors: (1) One employee was told that the union needed to have 80 percent of the employees signed up in order to get an election and that it was to have an election. (2) Another employee was told substantially the same thing and told that the purpose of the card was to secure an election. (3) Another employee was told that the purpose of the card was to bring the union question to a vote in an elec- tion. In all, 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. This testi- mony was undenied and credited by the Trial Examiner. One employee testified that the talk all over the plant was about trying to get an election. In Morris & Associates, Inc., 138 NLRB 1160, September 1963, the authorization cards were worded differently; across the top in bold-face type was the statement "I want an N L.R.B. election." Below this type are separate paragraphs in which the signers authorize the union to petition the NLRB for an election as soon as possible and authorize the union to act as his bargaining agent with the company in regard to wages, hours, and working conditions. The union organizer testified that he told the employees at an assembled group that "other than for the election, cards were not binding on the people that signed them." Two of the three-member Board panel agreed with the Trial Examiner that as the cards secured by the union as proof of its majority status were secured on a representation of the union agent as quoted above, they were unreliable for the purpose of establishing the union's majority status.13 Thus, I conclude that the tests for determining whether a card should be counted is based, not on what an employee subjectively intended or understood, but on (1) whether he was falsely told that the only purpose of the card was to secure an election, or (2) whether he was induced to sign the card by trickery or beguilement. 3. The authorization cards As to the following named 33 employees, I find that by the act of signing authoriza- tion cards for the Union during the months of July and August 1963, and prior to August 28, 1963, they thereby authorized the Union to act as their collective- bargaining representative. The authorization cards of these employees were identified is Also see the case of Peterson Brothers, Inc., 144 NLRB 679, September 1963. This ease is an excellent reference in that it deals both with cards counted and not counted, and is a case in which the Board reversed the Trial Examiner's findings on some cards. GOTHAM SHOE MANUFACTURING CO., INC. 875 either by the employees signing them or by other employees or by union representatives who saw the cards signed or who received them from the signing employees. The Respondent did not challenge the counting of these cards in his brief. General,COnnsel's Exhibit No Employee General Counsel's Exhibit No. Employee 10B----------------- Anna Balanda. 1OEE--------------- Earl L Lindsey. 10c----------------- Rose Brown. lOGG--------------- Teresa Legno lOD---------------- Clifford L Barton. 1OKK--------------- Katherine Manley. 10E----------------- Anna Mae Bedgood 10MM-------------- Theresa P. Majeski. lOF----------------- Arthur Borne 1ONN--------------- Margaret Murtaugh. 10H----------------- Helen Curomc 1oQQ- -------------- William Osborne 10I------------------ Richard Chalker IORR--------------- Stella Prozeralik lOK----------------- Leroy Douglas 1ODU--------------- Joseph Rogers lOL----------------- Robert J Douglas 1OV V - -------------- Allan Roody 100----------------- Ralph C Farnham 1000C-------------- Gordon C Swan. 10Q----------------- Stanley Gerlock 10III---------------- Harry E. Stone. IOU----------------- Betty G Hollenbeck. 1OJJJ________________ Louise Thomas lOV----------------- Helen Joy. 14 1OKKK_____________ Verna Van Valkenburg. low---------------- Karop Kakusian. 10MMM__-_________ William Wescott. lox_________________ Donald Knott. 10PPP______________ Frances Young 10C C - ------------- IODD--------------- Violet Labour. Edith Leach 1OQQQ------------- Clarence Young The remaining 40 authorization cards will be considered separately, as follows. Each of these is challenged by Respondent. (1) Alice De Maria: This employee was on the union committee and actively solicited other employees to sign authorization cards. She identified her authorization card, dated July 15, 1963 (General Counsel's Exhibit No. IOJ). She attended several union meetings and, along with other employees, was told by Union Representatives McCauley and Babchin to get more cards signed so that they could get enough votes for an election. She also recalled McCauley saying that he would send a letter to the Employer asking him to recognize the Union; that if the Employer would not recog- nize the Union, they would probably have to go to an election; and that they needed a certain percent of the employees to sign cards in order to get a vote From the testimony of the union representatives and other witnesses, I find that the union representatives set out to and were following the "election route" toward recog- nition as bargaining representatives from the Respondent. The employees were informed of the election procedure and of the need for a certain percentage of signed authorisation cards for an election (30 percent) and of the Union's desire to obtain a much greater percentage of signed cards (70 percent) than the minimum required. With the emphasis placed on the "election route," it was quite natural for the employees to expect a Board election to be the next step, following the signing of the authorization cards, in the absence of voluntary recognition by Respondent upon request by the Union. As De Maria testified, the union representatives explained that a letter requesting recognition would be sent to the Respondent after the cards were signed.' The union representatives themselves were anticipating an election, but they at no time stated that it was the "only" route or procedure toward recognition, and at one meeting they explained the "strike route" toward recognition. I find that Union Representatives McCauley and Babchin stated to employees substantially as testified by employee Clarence Young "that the committee had to get out and work hard and get all the cards signed if we wanted to have the Union in the shop; we had to get out and work to recognize the Union and to get it in the shop. He said if we had around 31%, we could have the National Labor Relations Board election, but Mr. De Novellas [union representative] said he would like to have 70% instead of 31%.... I fit got down to a showdown and we couldn't deal with the Company in any other way, if we were strong enough, we could go out on strike. If we went out on strike, we might get Union recognition that way." He stated that a number of the people wanted to know what they were going to do; and they were told that they had a strike fund and "The authorization card of Helen Joy is undated, and she testified that she had no recollection of the date of signature; but other evidence establishes that it was in the possession of the Union prior to August 28, 1863, and therefore dated prior'to that time. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would be paid the same as unemployment plus $7 extra for each dependent. He also stated that they were told that when they got up to 60 or 70 percent it would be no problem at all; and that they could go to the firm and, if the firm saw that they had. 70 percent, the firm would probably deal with them This witness also testified that he did not recall McCauley or anyone else at the union ball stating that the authoriza- tion cards were only for the purpose of securing an election.'5 - (2) Arlene Kruger: This witness testified that she read and signed her authoriza- tion card, dated August 13, 1963, at the union hall (General Counsel's Exhibit No. 1013B). Later she was called as a witness by Respondent and asked what statements were made to her concerning the card, and she replied that the employees were told at the union meeting by the union officials that "nobody would see the cards or know that we had signed the cards, and that all the cards were for were to petition for a vote on whether we each wanted union representatives to take care of our business or not." 16 (3) Elizabeth Stanley: This employee identified her authorization card, dated August 13, 1963 (General Counsel's Exhibit No. 10ZZ), but stated that the date is not in her handwriting. Other evidence establishes that it was in the possession of the Union prior to August 28, 1963, and therefore signed prior to that date. The card was given to her by De Maria; she carried it in her purse for a couple of weeks before signing it and returning it to De Maria. She stated that Alice De Maria said to her, "I want you to sign the card." Mrs. Stanley replied, "I don't feel like signing it today." Then De Maria stated, "Sign it. It don't mean nothing. It only gives you a chance to vote." She was asked if, at the meeting she attended prior to signing the card, the union representatives made any statement about the cards, and she replied in the negative. (4) Helen Wilcox: This employee is a sister of Alice De Maria. She testified that she read her authorization card, signed it on July 23, 1963, and returned it to Alice De Maria (General Counsel's Exhibit No 10000). She attended two union meetings but did not recall whether she attended them prior to signing the card; the card was given to her by her sister, Alice De Maria, who told her "It was for the purpose of getting a certain percent of employees to sign the card so that we could have the right to vote." She stated that she did not hand the card in at the itme she signed it but kept it a week or so and then gave it back to De Maria. (5) Joseph Villante. This witness identified his authorization card dated July 16, 1963 (General Counsel's Exhibit No. IOLLL), and testified that he was given the card by Donald Knott and was told by him that it was to "see if we could get an election down there, to have a vote, and you have to have a certain percent to have an election." He did not attend any union meetings prior to signing the card. (6) Herman Kelsey: This employee identified his authorization card dated July 16, 1963 (General Counsel's Exhibit No. IOAA); and he stated that he was given the card by Mandicott, signed it, and then turned it in at the conclusion of a union meeting He stated that at the meeting McCauley told the employees "that they [the cards] were to represent to get a vote" and "that we need 30% or more, I think, something like that, for a vote." That is all he recalls being told. (7) Dominick Mandicott: This employee identified his authorization card dated July 23, 1963 (General Counsel's Exhibit No. LOLL), and testified that he, as member of the union committee, solicited cards from a number of employees. He testified extensively on cross-examination and on redirect examination as to what he was told regarding the cards and as to what he told specific employees about the cards. He testified that he was told at union meetings by McCauley that they wanted to get 15 Both McCauley and Babchin testified that employees were also told that recognition could be obtained by means of a card check by a disinterested person such as a priest, rabbi, or judge This was not verified by any of the employees. Two of the union com- mitteemen, Donald Knott and Clarence Young, were asked specifically as to a statement by union representatives along these lines Young replied that he did not recall any such statement; Knott replied, "I don't recall too much. I remember bringing up something about having a priest or policeman or a rabbi there I don't know if that was in con- nection with the card check or not. I don't remember." Knott's testimony is too vague and indefinite for verification, and in view of the fact that no employee recalls an explana- tion of this method of obtaining recognition, I conclude that there is insufficient basis for a finding that this procedure for recognition was explained to the employees of Respond- ent, and I discredit the testimony of McCauley and Babchin on this point. le I cannot credit the testimony of this witness indicating a limited purpose for the authorization cards. I have previously set forth credited testimony as to statements by union representatives. I feel that the testimony of this witness constitutes her own con- clusions or understanding derived from the statements of the union representatives. GOTHAM SHOE MANUFACTURING CO., INC. 877 enough signatures on cards so that if they got a majority of signatures they could have an election. He said the same thing to employees he solicited, and he told a number of them that the signing of the card was for the purpose of getting an election and was not itself a vote, as this was his understanding. (8) John Zott and (9 ) Joseph Sariti, Jr.: These two employees were solicited on behalf of the Union by Mandicott and did not testify themselves. Their authorization cards dated July 17 and 23, 1963 (General Counsel's Exhibits Nos. IOSSS and IOFFF, respectively), were identified by Mandicott as the cards handed to him by each of these two employees. He told them that "distributing the cards was to get enough cards in order to get an election . It didn't'mean actually that the cards he was signing was an actual vote. It was to get enough signatures, enough cards in so that if we had the majority of signatures, we could have an election." (10) George Leonard: This witness identified his authorization card dated July 24, 1963 (General Counsel's Exhibit No. 10FF), and stated that he was given the card by Mandicott. He stated that Mandicott told him, "Here's a card-Here's the card for a Union, to join the Union," and that he said nothing about an election. Leonard did not read the card but signed it and filled it in except for the date, which was filled in by Mandicott, and returned it to Mandicott. According to Mandicott, he told Leonard that the card was to get an election and that it was not to be a vote. (11) Thelma Standard: This employee identified her authorization card dated July 18, 1963 (General Counsel's Exhibit No. 10BBB), and stated that she was given the card by Mandicott. She stated he asked her if she would be interested in the Union and told her that "they wanted to get enough signatures so that they could have a vote ... to see whether we wanted the Union to represent us or not." She read and signed the card on July 18, 1963, but carried the card in her purse and turned it in following the next- union meeting, about 1 week later. Mandicott testi- fied he told her that the only purpose of the card was to get an election and it was not to count as a vote. (12), Orlando Schutt: This witness identified his authorization card dated July 23, 1963 (General Counsel's, Exhibit No. 10HHH), but could not recall when he signed the card but testified that it was probably in September 1963. Other evidence estab- lishes that this card was in the possession of the Union prior to August 28 and, therefore, that it was signed prior to that time. Schutt was given his card by Mandi- cott; he did not testify as to any statements by Mandicott or other inducing him to sign the card. He did not read the card, but stated that it was "something to help the Union out . . . I don't know any more than to say it's for the Union, to get the Union in there." Mandicott testified that he told him that the purpose of the card was to get an election and that the card was not to count as a vote. (13) Walter Scott: This employee identified his authorization card dated July 23, 1963 (General Counsel's Exhibit No. 1ODDD), and stated that he was given the card by Mandicott who told him that "we each wanted to sign the card and see if we had an election to see if the people, all the people in the factory wanted the Union to represent us." Scott signed the card without reading it and asked Mandicott to fill it out. Mandicott testified, "I told him [Scott] `We're trying to get enough votes to have a Union,' and he asked me if it, as he said, if it actually was a vote. I said that as far as I understand, it was not. It was just to get enough signatures in order to have a vote." (14) Michael Ambrose: This witness was a member of the union committee and received a card from Charles Seraydarian; he filled it out and signed it at a union meeting on August 13, 1963. Regarding the card, he was told by McCauley at one of the union meetings that if they could get a majority of the cards signed, they would have the right to a vote for or against the Union for their collective-bargaining representative. He testified that he read the card before he signed it (General Coun- sel's Exhibit No. l0A). (15) Charles Seraydarian: This employee was one of the original group of employees at the plant who decided that they would like to have a union at the plant, and he contacted McCauley. He attended many of the union meetings and testified that McCauley told those attending the meetings that they needed to get 31 percent of the workers (to sign the authorization cards) in order to get a vote in the shop, and that they needed the vote to get the Union in the shop. He com- pleted his authorization card and printed his name on the line for signature, but did not read the card; it is dated July 15, 1963 (General Counsel's Exhibit No. IOGGG). (16) Anthony Stilloe: This witness identified his authorization card dated July 16, 1963 (General Counsel's Exhibit No. 1OWW). He attended several meetings at which McCauley and Babchin spoke to the employees about the authorization cards among other things. Regarding the card, he testified he was told that they had to 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get the workers to sign the cards in order to get a vote; that if they could not get the employees to sign the cards, they could not get a vote ; that 31 percent of the workers were needed to get a vote. He stated that he did not read the card before signing it but took the words of the union representatives regarding it. He passed out union cards to Andy Soblich and to George Kakusian . He told each of these to sign the cards so that they could get a vote for the Union. (17) Andrew Soblich: This witness identified his authorization card dated July 16, 1963 , and testified that he was given the card by Anthony Stilloe . He was told at the time, "Sign it so we can take a vote ... everybody else is signing them; we want everybody to sign them." He stated that he did not read the card and had the card in his possession an hour or half an hour before turning it in (General Counsel's Exhibit 1OXX). (18) Ann O'Brien: This witness testified that she was given a card and signed it on July 15, 1963, without reading it (General Counsel's Exhibit No. 1000 ); that she did not recall who gave her the card or to whom she returned the card. She did not attend any union meetings prior to signing the card , but recalled that she- was told when she was given the card that "it was for the purpose of being able to vote"- that "they needed so many percent of the workers to be able to vote and for me to sign the card." (19) Helen Sodan: This witness was given a card by Mandicott . He asked her "to sign the card so that we could vote ." She did so on July 24, 1963 (General Counsel's Exhibit No. 1OAAA); also she passed cards out to several other employees and told them "to sign so we could vote." (20) Francis Miller: This employee stated that she was given an authorization card by Helen Sodan ; that she read the card and signed it;' that Helen Sodan told her, "Sign this so we can vote." Her card is dated July 24, 1963 (General Counsel's Exhibit No . 1OJJ ). She did not attend any union meetings. (21) Robert Burns- This employee identified his authorization card dated July 16, 1963 (General Counsel's Exhibit No. lOG ), and testified regarding statements made to him by Clarence Young about the card. He stated that Young told him they had to have 31 percent in order to get a vote, and told him, "Here's a card. We want the Union in here." Although the witness testified that he did 'not read the card, he also stated that "I just went over it and put my address and phone number and that down." (22) Edwin Wood: This employee identified his union authorization card dated July 18, 1963 (General Counsel's Exhibit No. 1ONNN), and stated that Charles Seraydarian gave him the card. He did not recall that Seraydarian said anything to him when he gave him the card . He stated that he understood that if he signed the card he would be eligible to have a vote for the Union or against it. (23) Paul Fiacco: This employee identified his union authorization card dated July 17, 1963 (General Counsel's Exhibit No. ION ), and stated that he signed it at a union meeting on a Tuesday night. He stated that McCauley told them that the only way they could have an election was by having cards signed by a majority of the employees (24) Frank Yannuzzi: This employee identified his union authorization card dated August 20, 1963 (General Counsel's Exhibit No. 1ORRR ). He did not recall when he signed the card; the date of August 20 is not in his handwriting . The card was among those forwarded by the Union to the Board 's Regional Office and therefore was in the possession , of the Union prior to August 28, 1963. He was given the' card by Clarence Young; he signed it the same day and returned it to Mr. Young. He testified that when he was given the card he was told that it was for the Union but that he did not know what kind of union it was. (25) Glenn C. Hibbard: This employee ' identified the authorization card signed by him and stated that it was signed during the month of August 1963 (General Counsel's Exhibit No. lOT). It was among those forwarded to the Union with its petition for representation. 'It was dated by someone other than Hibbard and the date filled in is August 13, 1963. He turned the card in at one of the Union's meet- ings in August, which meetings were held on Tuesdays . He testified that he was told by McCauley that the signing of the cards was for a vote on a union; that they had to get a certain percentage , 30 or 40, in order to have a vote; that the employees' could vote 'any way they wanted ,to; that it would be a sealed ballot; and that just because an 'employee signed the card , this did 'not mean that he was, joining the Union. Hibbard stated that he read the' card before he signed it at the ;union meeting. ' (26) Robert Guinane: This employee identified his authorization card which he completed and dated on 'August 14, 1963 (General Counsel's Exhibit No. 10P). GOTHAM SHOE MANUFACTURING CO., INC. 879 He was given the card by one of the other employees the morning after a union meeting. He was asked by one of the employees to sign the card-that they had to have a certain percentage sign the cards in order to have an election. Guinane did not attend any of the union meetings prior to signing the card. (27) Louis Stilloe: This employee identified his union authorization card dated July 16, 1963 , and stated that he was given the card by Donald Knott. Louis Stilloe was told by his father, Anthony Stilloe, to sign the card, and Louis signed it. At one of the union meetings he recalls a statement by McCauley that they were supposed to sign the cards in order to get a vote in the factory (General Counsel's Exhibit No. 10EEE). (28) Marian Savage: This employee identified her authorization card (General Counsel's Exhibit No. 10YY); she printed her name in the signature space. The card is stamped "undated." She testified that she signed the card on or about August 1 or 2, 1963, or on or about August 15 or 16, 1963. The card was among those in the possession of the Union when it forwarded its representation petition to the National Labor Relations Board and therefore was signed and turned over to the Union prior to August 28, 1963. This witness is deaf and dumb and she was given the authorization card with a note by a fellow employee and asked to sign her name and address. She did this and returned the card to the unidentified employee. (29) Anthony Di Rado: This employee identified his union authorization card (General Counsel's Exhibit No. 10M ) and stated that he signed the card on or about the date that appears on the face of the card, August 18, 1963, but that he did not date the card himself . He signed the card at one of the union meetings. He did not read the card and all he recalls being told was "Here 's the card; just fill it in." (30) Paul Ruggeri: This employee identified his authorization card (General Counsel's Exhibit No. 10SS) and testified that he signed the card on or about August 6, 1963 . He was given the card by an employee named Stone ; he took the card home and signed it at his home . He stated that he could not read; he did not attend any union meetings ; he did not know what the words "represent me in col- lective bargaining" meant; and no one from the Union made any representations to him regarding the card. He did not testify as to any conversation with Stone regard- ing the card. Respondent challenges the card of this employee on the ground that he did not know or understand what he was doing when he signed the card. Ruggeri signed the card voluntarily after taking it home, which afforded him ample oppor- tunity to reflect on the consequences of his action . I cannot discount the conse- quences of his act of signing the card by the testimony regarding it (31) Benedict Kaufman, and (32 ) Paul Kaufman- Benedict Kaufman identified his union authorization card (General Counsel's Exhibit No. IOZ). He testified that he had the card in his possession about a week, that he did not read the card although he can read; that he knew it was a card "about the Union." He does not recall who gave him the card but stated that "when they handed you the card they just wanted you to vote , you know, to get the Union in. That's all I know." He stated, "Everybody else signed so we signed ," referring to himself and his brother. Benedict Kaufman also signed and completed the card of his brother, Paul Kaufman, (General Counsel's Exhibit No. 10Y). His brother cannot read or write. He gave the card to his brother, and his brother, Paul Kaufman, turned the card in to a union representative in his presence at one of the union meetings . Paul Kaufman was not called as a witness . Benedict dated his card July 25, 1963, and testified that that was the date on which he signed the card. His brother's card is dated Sep- tember 6, 1963 , but the date is not in the handwriting of Benedict Kaufman. Both the cards of Benedict and Paul were forwarded by the Union to the National Labor Relations Board with its representation petition and therefore were in the possession of the Union on and prior to August 28, 1963. A question arises as to whether or not the card of Paul Kaufman can be counted in view of the fact that he did not testify, and there is no evidence of his authoriza- tion to Benedict Kaufman to sign the card for him except the testimony of the agent, Benedict Kaufman. However, Benedict also testified that he saw his brother Paul hand the card to a union representative . Based on his testimony of his observation of this overt act, I find the card of Paul Kaufman to be a valid authorization of the Union to represent him. (33) Lorenzo Romeo: This employee identified his signature on his authorization card (General Counsel's Exhibit No. 10TT). Romeo cannot read and can write only his name. The remainder of the card was completed by someone else, but Romeo does not know by whom. The card bears the date of July 18, 1963, and 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Romeo does not recall when he signed the card. The card was submitted by the Union with its representation petition filed with the National Labor Relations Board, and therefore was in the possession of the Union prior to August 28, 1963. Romeo attended one union meeting. The statements he remembers with reference to the authorization card are that they wanted the card signed so that they could have a vote and that they had to have 30 or 31 percent in order to have a vote . He stated that he saw everyone signing cards, so he also signed a card. He could not read the card and it was not read to him. He signed the card at the factory. (34) Ethel Heaton: This employee took leave of absence from Respondent on June 27, 1963 , because of illness. She never returned to work after that date and died in approximately December 1963 of a brain tumor. There is no evidence of anyone having personal knowledge of the signing of an authorization card by Heaton; but the General Counsel offered evidence from the company records for the purpose of comparing signatures of Ethel Heaton. From the records of Respond- ent the General Counsel offered a U .S. Treasury Department Form No. W-4, enti- tled "Employee's Withholding Exemption Certificate" which contains a signature purporting to be that of Ethel Heaton (General Counsel's Exhibit No. 20B). The General Counsel also offered (General Counsel's Exhibit No . 12) a record from the Respondent on this employee which is entitled "Statement of Earnings and Deduc- tions" for the period ending March 6, 1963, which purports to bear the signature of Heaton. I have carefully examined the authorization card of Ethel Heaton dated August 15, 1963 (General Counsel's Exhibit No. 10R) and General Counsel's Exhib- its Nos. 20B and 12; and I find no difficulty in deciding that the signatures on the three documents were written by the same person. The authorization card of Heaton was submitted by the Union with its representation petition and therefore was in the possession of the Union prior to August 28, 1963. 1 conclude that the card of Ethel Heaton is a valid authorization card. (35) Lyle Hewitt : Hewit was not called to testify and as evidence of the authen- ticity of his card dated August 20, 1963 (General Counsel's Exhibit No. 10S), the General Counsel offered from the records of the Respondent the employee 's with- holding certificate, U.S. Treasury Department Form W-2 (General Counsel 's Exhibit No. 20A) and a statement of earnings and deductions for the period ending August 24, 1963 (General Counsel's Exhibit No. 15 ). I have compared the signature that appears on the authorization card with the signatures that appear on the documents taken from the records of the Respondent, and I find that the signature on the authorization card is clearly in the same handwriting as the signatures that appear on the company documents .17 I therefore find that the card of Lyle Hewitt is a valid and timely authorization to the Union to act as his bargaining agent. (36) Lorraine Mapes: This employee began her employment at Respondent on August 13 and quit on September 21, 1963. Her card (General Counsel's Exhibit No. 1011 ) is stamped "undated", but she could not recall when she signed the card except that it was about a week or two after she started to work for Respondent. She attended no union meetings and was given the card at the plant by employee Ann O'Brien. She read the card prior to signing it . Her card was among those submitted by the Union when it filed its representation petition ; therefore, it was signed and turned over to the Union prior to August 28, 1963. (37) Fidelia Osborn: This employee identified her signature on her authorization card (General Counsel's Exhibit No. 10PP ). The card is dated August 1963. She testified that she signed the card either on August 12 or 13, 1963; that she was given the card by Anna Balanda; and that she took the card home that night and signed it and returned it to Anna Balanda the next day. The card was in the possession of the Union when it filed its representation petition prior to August 28, 1963. McCauley testified that the cards of Fidelia Osborn, Vivian Angevine , and Jennie Lee came into his possession on August 27, 1963. Each of these cards was included in the collection of cards submitted by the Union with its representation petition forwarded on August 28 or 29, 1963 , and filed August 30, 1963. (38) Vivian Angevine: This employee identified her authorization card dated August 22, 1963 (General Counsel's Exhibit No. 10UUU ). She was given the card by Verna Van Valkenburg, and filled in and signed the card at her home. She did not attend any union meetings prior to signing the card and was told by Van Valken- burg that it was for a vote for the Union . She testified that she did not read the card, but on cross-examination she stated that she did read at least part of the card- enough to enable her to complete all of the blanks on the card with the exception 'of her department. Van Valkenburg testified that she turned .the card in at the next union meeting, which was on August 27, 1963. 17 Philamon Laboratories, Inc., 131 NLRB 80, footnote 1. GOTHA-M SHOE MANUFACTURING CO., INC. 881 (39) Jennie A. Lee: The- authorization card of this employee was identified by Verna Van Valkenburg (General Counsel's Exhibit No. IOTTT). She stated that she gave a card to Jennie Lee; that she did not complete it in front of her but returned it to her completed- after a few hours; that it was returned to her on Au- gust 22, 1963; and that she turned it in to the union representatives at the next union meeting on August 27, 1963. Jennie Lee was not called as a witness. (40) Kathleen Pond: Pond identified her authorization card and testified that she signed it on August 18, 1963, and gave the card to Ray Heatherman (General Coun- sel's Exhibit No. IOVVV). McCauley testified that he did not have the card of Pond in his possession at the time that he submitted the union petition to the Board. He discovered it in his file- after the petition was dispatched-that is after August 28 or 29, 1963; and he turned it over to a Board field examiner sometime after that date. Since the act of authorization occurred prior to August 28, 1963, I conclude that it constitutes a valid and timely designation of the Union as her bargaining represen- tative, although not delivered to the Union until after Respondent's refusal to bar- gain on August 28, 1963. . Summarizing what these 40 employees were told by solicitors-(1) Six employees solicited by Mandicott (Zott, Sariti, Leonard, Standard, Schutt, and Scott) and one employee solicited by DeMaria (Stanley) were told in words to the effect that the only purpose of the cards was to secure an election; 18 (2) many were asked to sign a card "so that we could vote," and told that if they could get signatures of 31 per- cent of the employees, they could have an election; and (3) those that attended the union meetings were informed of the Board election procedure and other methods for gaining recognition. There may be a fine line of distinction between what one is told and what one is led to believe by the teller's emphasis. The point is that the employees signed their names to written documents that were clear and explicit. I do not believe this act should be treated lightly. Parol evidence that the employees did not intend to do the very thing that they did do-authorize the Union to represent them-should be limited to evidence of false statements or trickery by the solicitor of the signature.19 It is certainly a false statement to tell an employee that the card is only for the purpose of securing an election. Is it trickery or beguilement to tell an employee "to sign the card so that we could vote," or to tell' an employee that if they could get 31 percent of the employees to sign, they could have an election, as many employees were told? These statements were certainly accurate, and I do not see trickery or beguilement in them. As things turned out, they were misleading; but they were not so at the time they were uttered by the solicitors. It was the unfair labor practices of the Respondent that changed the representation route of the Union. Normally, an employer may insist on a Board-conducted election. Such an elec- tion conducted in a "laboratory atmosphere" is the most accurate and secret method for determining the employees' true desires, although it is not the only method. Where an employer has destroyed the "laboratory atmosphere" by unfair labor prac- tices, calculated to affect- the Union's majority and the outcome of the election, as here, the Board has held that this conduct, by its nature and timing, colors an employee's expression of good-faith doubt, and has recognized an alternative method of determining a union's majority status-by a count of signed authorizations. The Respondent can no longer be heard to assert a good-faith doubt of the Union's major- ity, and for these reasons I find that the doubt advanced on August 28, 1963, as the reason for refusing to bargain was not in good, faith.20 Having found that the cards of Zott, Sariti,, Leonard, Standard, Schutt, Scott, and Stanley were solicited by improper false representations, I exclude these seven cards from the count. This leavesr the Union-with a total of 66 cards, whereas 52 are needed to establish a majority.21 I find that on August 28, 1963, when Respondent Is Mandicott testified that several of these employees ( Sariti , Leonard , Standard, and Schutt) agreed to sign the cards after and based on his representation that it was not actually a vote for the Union Testimony of subjective understanding or reaction to re- marks of solicitors is not considered and in most instances was excluded, as was proffered testimony of change of mind or desire regarding the Union 1e I do not intend to categorize all tvnes of false statements as justifying a challenge to an authorization card There may be some types of false campaign propaganda inducing a signature on an authorization card that would not negate the effectiveness of that act, anymore than it would warrant the setting aside of a representation election 20 Joy Salk Mills. Inc , sutra '' Employee Raymond Heatherman testified that he signed an authorization card, but General Counsel was unable to produce it The witness was also confused as to when lie signed it Under the circumstances . I do not accept his testimony as proof of his authori- zation of the Union prior to August 28, 1963. 770-076-65-vol. 149-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to recognize or bargain with the Union, the Union had valid and timely authorization cards from a majority of the employees in an appropriate unit. Respondent contends that the Union cannot properly proceed with a representa- tion case and a refusal-to-bargain case simultaneously . The Board is not at this point proceeding with the representation case, and has not done so since the refusal- to-bargain charge was filed. To proceed with both at the same time would be of questionable value. The filing of a refusal-to-bargain charge stymies and supersedes the representation case until the refusal-to-bargain case has been disposed of.22 Having found that the Union represented a majority of Respondent's employees in an appropriate unit on August 28, 1963, and made a proper request for recognition and- bargaining, which Respondent declined, and having found that Respondent's questioning of the Union's majority is, for the reasons stated herein, not advanced in good faith, I find that Respondent has refused to bargain collectively in good faith in violation of Section 8(a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Resopndent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it bargain collectively with the Union, upon request, and that it post appropriate notice to employees as provided in the Recommended Order set forth below, which is found necessary to remedy the unfair labor practices and to effectuate the policies of the Act. Upon the basis of the foregoing findings and conclusions, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW o 0 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Shoe Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act - 3. All production employees including shipping and receiving employees employed at Respondent's Binghamton plant, excluding office and plant clerical employees, all guards, professional employees, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been at all times material herein, and is now, the exclusive repre- sentative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. Commencing on August 28, 1963, and continuously thereafter, Respondent has refused to recognize and to bargain collectively with the Union, thereby violating Section 8 (a) (5) of the Act. 6. Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent did not engage in an unfair labor practice within the meaning of Section 8 (a) (3) or (1) of the Act as alleged in paragraphs Nos. 7, 8, and 9 of the complaint with respect to Nancy Morabito. 9. The Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(1) of the Act as alleged in paragraphs Nos. 6(g) and (h) with respect to instructions to employees not to discuss the Union. "'The Board has recently held that a union may file a refusal-to-bargain charge after losing a representation election where unfair labor practices have been committed Bernel Foam Products Co , Inc., 146 NLRB 1277, May 1964. Also, I have been administratively advised that the representation proceeding, Case No. 3-RC-3234, was withdrawn by the union after the close of the Instant hearing. GOTHAM SHOE MANUFACTURING CO., INC. 883 RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions, and upon the entire record in this case, it is recommended that the Respondent, Gotham Shoe Manufactur- ing Co., Inc., its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening to close or to move its Binghamton plant as a consequence of union activity or affiliation. (b) Interrogating employees about their union activities or the union activities of other employees. (c) Offering to deal directly with the employees and to make adjustments and improvements in employee benefits and working conditions for the purpose of dis- couraging their union activity and affiliation. (d) Conveying the impression of surveillance of union meetings by statements to employees. (e) Requesting employees to engage in surveillance of union meetings or activities. (f) Threatening employees with the discontinuance of its medical plan as a con- sequence of unionization. (g) Refusing to bargain collectively with United Shoe Workers of America, AFL- CIO, as the exclusive representative of all production employees including shipping and receiving employees at its Binghamton plant, exclusive of office and plant clerical employees, and all guards, professional employees, and supervisors as defined in the Act. (h) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, bargain collectively with United Shoe Workers of America, AFL-CIO, as exclusive representative of all employees in the above-described bargain- ing unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Binghamton plant copies of the attached notice marked "Appen- dix." 23 Copies of such notice, to be furnished by the Regional Director for Region 3, shall, after being signed by a managing representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecu- tive 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 such notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days of the date of the receipt of this Decision, what steps it has taken to comply herewith.24 32 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order Is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order " u In the event this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 bargain collectively, upon request, with United Shoe Workers of America, AFL-CIO, as the collective-bargaining representative of all of our employees in the unit described as follows: All production employees including shipping and receiving employees employed in our Binghamton plant, excluding office and plant clerical employees, all guards, professional employees, and supervisors as defined in the National Labor Relations Act. WE WILL NOT threaten to close or move our Binghamton plant or to discon- tinue our employee medical plan as a consequence of union activity or affiliation. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT offer to deal directly with our employees or to make adjustments and improvements in employee benefits and working conditions for the purpose of discouraging membership in United Shoe Workers of America, AFL-CIO. WE WILL NOT request employees to engage in surveillance of union meetings or activities, nor will we convey the impression of surveillance of union meetings by statements to employees. WE WILL NOT interrogate our employees about their union activities or the union activities of other employees. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the National Labor Relations Act, and to refrain from any and 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. All of our employees are free to become or remain, or refrain from becoming or remaining, members of United Shoe Workers of America, AFL-CIO, or any other union. GOTHAM SHOE MANUFACTURING CO., INC., 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, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. Tl. 6-1782, if they have any questions concerning this notice or compliance with its provisions. Atlantic Mills Servicing Corp. of Wisconsin d/b/a Atlantic Thrift Center and Retail Store Employees Union, Local 400, affiliated with Retail Clerks International Association, AFL- CIO Amalgamated Clothing Workers of America , AFL-CIO and Re- tail Store Employees Union, Local 400, affiliated with Retail Clerks International Association, AFL-CIO. Cases Nos. 5-CA- 2566 and 5-CB-563. November 19, 1964 DECISION AND ORDER On May 5, 1964, Trial Examiner James V. Constantine issued his Decision in the above-entitled consolidated proceeding, finding that Atlantic Mills, herein called Respondent-Company, had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Amalgamated Clothing Workers, herein called Amalgamated or Respondent-Union, had not engaged in the unfair labor practices alleged in the complaint, and recommended dismissal of that portion 149 NLRB No. 81.