Trend Mills, Inc.

TREND MILLS, INC. 143 SUPPLEMENTAL CONCLUSIONS OF LAW Respondents did not violate Section 8 (a)(I) and (5) of the Act as alleged in the amended complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. Trend Mills, Inc. and Textile Workers Union of America, AFL- CIO-CLC. Case No. 10-CA-5385. August 2, 1965 DECISION AND ORDER On November 30, 1964, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dis- missal of those allegations. Thereafter, the Respondent, the General Counsel, and the Charging Party each filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed, except as hereinafter noted. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case and hereby adopts the find- ings,' conclusions, and recommendations of the Trial Examiner with the following modifications. In dismissing the allegation that the Respondent refused to bargain with the Union in violation of Section 8(a) (5), the Trial Examiner found that the appropriate unit comprised 96 employees on the demand date and, accordingly, that 49 valid authorizations were necessary to support the demand. The General Counsel's contention that he should have been permitted to litigate the supervisory status of 2 of the 96 employees appears to us to be well taken; therefore, for purposes of I The Trial Examiner's Decision occasionally refers to 1964 as the year in which cer- tain events of the Union's organizational campaign, and Respondent's subsequent inter- views with its employees, occurred. Since the campaign and the interviews all took place in 1963, these inadvertences are hereby corrected 154 NLRB No. 7. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this Decision, we shall accept his claim that the 2 disputed employees are supervisory personnel who should be excluded from the bargaining unit. The unit would then consist of 94 employees, and the number of employee designations necessary to establish the Union's majority status is reduced to 48. Of the 54 cards offered in evidence by the General Counsel, the Trial Examiner found that only 30 could be considered dependable delega- tions of bargaining authority. Since this figure falls far short of a majority of the employees by either of the contended methods for reckoning the size of the unit, the Trial Examiner thereupon recom- mended dismissal of the 8 (a) (5) charge. In concluding, as we do, that dismissal is the proper disposition of the refusal-to-bargain count, we find it unnecessary to approve all of the factual findings or evidentiary analyses made by the Trial Examiner. It is only necessary here to affirm his conclusion that the record raises such grave doubts about the validity of a sufficient number of the cards submitted by the General Counsel that the Union's assertion of majority representation at the critical time cannot be sustained. It seems clear to us that the authorization cards purportedly signed by William Fox, Benjamin Coulter, and Willie Cunningham may not be counted, in view of the testimony by the former two employees that they had never signed such cards, and the testimony by the latter that, although he signed a card, he quickly retrieved it, erased his signature, and threw the card away.2 Employees James Kirby, Charles Johnson, and Robert Pruitt did not read the cards, and authorized other employ- ees to sign on their behalf after being told merely that the cards would be used to secure an election in the plant. The solicitors told Billy Smith, Leroy Jones, Eugene Autry, and Larry Ray Brown that the only purpose of the cards which they signed was to authorize the hold- ing of an election .3 Jack Jones, who is unable to read, had his wife sign his name to a card upon the same representation. The circumstances under which these, and perhaps other, cards rejected by the Trial Examiner were signed lead us to the conclusion that the General Counsel has not established that at least 48 employees had selected the Union as their bargaining representative on the demand date. Accordingly, we affirm the Trial Examiner's dismissal of the Section 8(a) (5) allegations of the complaint. 2 We disagree with the Trial Examiner's ruling that the General Counsel could not in- troduce, through these witnesses, samples of their genuine signatures, for the purpose of contradicting their testimony that they did not sign the union cards which bore their names. Rather than an impeachment of the witnesses, the offer appears to have been an attempt by General Counsel to prove his case by the use of other, independent evidence, with the witnesses merely being required to authenticate the samples Cf. 3 Wigmore, Evidence § 907 (3d ed 1940). Our examination of the rejected samples, however, does not persuade us that the witnesses' testimony that the signatures on the cards were not theirs should be discredited. Member Jenkins would accept the cards signed by Smith, Jones, and Autry, but would exclude Brown's card for the reason that he was apparently unable to read and had been misinformed as to the meaning of the card. TREND MILLS, INC. 145 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Trend Mills, Inc., Plainville, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The issues in this case are whether Respondent, Trend Mills, Inc., during an organizing campaign of Textile Workers Union of America, AFL-CIO-CLC, herein called the Union, at its Plainville, Georgia, plant, (1) interrogated employees about their union affiliation and desires, promised them benefits and threatened them with various reprisals to dissuade them from joining or assisting said Union, and per- suaded them not to obey subpenas issued by the Board for their attendance at the hearings herein, in violation of Section 8(a) (1) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act, and (2) refused to bargain collectively in good faith with said Union as the exclusive bargaining rep- resentative of employees in an appropriate unit, in violation of Section 8(a)(5) of the Act. The issues arise on a complaint issued August 6, 1963 (as amended at the hearing),1 by the General Counsel of the Board through the Regional Director for Region 10, and the answer of Respondent, amended at the hearing, which admits jurisdiction but denies the commission of of any unfair labor practices. On due notice, a hearing on the issues was held before Trial Examiner Eugene F. Frey on 12 days between October 8, 1963, and June 26, 1964, in which all parties participated fully through counsel. During the hearing I reserved decision on admis- sion of various union authorization cards offered in evidence by General Counsel, and on Respondent's motion at the close of testimony to dismiss the complaint on the merits. My decision on the offers and the motion will appear in the appropriate findings and conclusions in this Decision. The parties waived oral argument, but I have received a written brief from Respondent, a telegram from counsel for Gen- eral Counsel summarizing arguments he made during the hearing on various issues, and a short statement of position from counsel for the Intervenors, all of which have been carefully considered by me, together with oral arguments of all counsel during the hearing, in making this Decision. Upon the entire record in the case, including my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Georgia corporation which at all material times herein has main- tained offices and plants at Plainville, Rome, and Dalton, Georgia, in which it has been engaged in the manufacture, sale, and distribution of carpets and rugs. In the 12 months preceding the issuance of the original complaint Respondent in the course of its business sold and shipped products valued in excess of $50,000 directly from its Plainville plant to point outside the State of Georgia. I find that Respondent is and at all times material herein has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is, and at all material times herein has been, a labor organization within the meaning of Section 2(5) of the Act. 1 The complaint Issued after Board Investigation of charges filed by the U uvn on June 27 and July 29, 1963. 206-446-66-vol. 154-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union campaign and request for bargaining, the representation proceeding In March 1963 the Union began an organizing campaign at Respondent's Plain- ville plant, during which it distributed white propaganda leaflets, with white union authorization cards as part thereof, to employees at the plant gates on several occa- sions, and also solicited employees through employee committees to sign both white and blue authorization cards. It also distributed other propaganda and held meet- ings for employees, which will be discussed below. On April 10, the Union formally notified Respondent, by letter to the Plainville plant, that it represented "the majority of your employees," and requested a meeting for contract negotiation. On April 11 the Union filed its petition with the Board in Case No. 10-RC-5551, seeking cer- tification as bargaining representative of employees in a unit consisting of "all pro- duction and maintenance employees including plant clerical employees at the Com- pany plant in Plainville, Georgia, excluding all office clerical employees, professional employees, truckdriver, guards, and supervisors as defined in the Act." The peti- tion estimated 84 employees in this unit. Respondent received the Union's letter, as well as notice of the petition and its contents, on Friday, April 12, and replied to the Union's request by letter of April 16, stating its disbelief that a "majority of our employees in an appropriate unit consisting of our three inter-related plants in Floyd, Gordon and Whitfield Counties" had chosen the Union as their bargaining agent, declined to meet with the Union, noted the filing of the petition seeking an election "limited to a portion of one of our plants," and suggested that since the matter was before the Board, it could best proceed through the Board machinery. The Union wrote back on the 19th that it claimed bargaining rights for employees at the Plain- ville plant only, and stated it was prepared to submit signed membership cards as evidence of its majority status at Plainville for check by a neutral party against the plant payroll. Respondent received this letter on the 22d, and answered on the 24th that it could not agree that the Plainville plant was the appropriate unit, and rejected the membership cards as evidence of free choice of representative by the employees because it did not know the circumstances under which the cards were procured, and assumed that these questions would be resolved in orderly fashion by the Board in the pending hearing (which the Board had already set for May 8). After the hearing, at which evidence was adduced on the appropriate unit, the Regional Director on June 7 issued his Decision and Direction of Election, finding that the employees at Plainville alone were an appropriate unit.2 On June 12 and 28 Respondent moved the Regional Director to reconsider the unit finding solely on the basis that actual removal of employees and operations from the Plainville to the Rome plants was underway, in accordance with a prior decision and schedule for merger of the two plants. The Regional Director denied the motions on June 21 and July 1, and Respondent appealed to the Board on the latter date for review of his decisions. The Board denied the appeal on July 23. The Union on August 2 with- drew its petition in the representation case, hence no election has been held. 1. Sufficiency of the demand Respondent attacks the letters of April 10 and 19 as legally insufficient requests for bargaining, because the Union did not clearly specify in either the scope of the appropriate unit, as required by the Board Decisions in The C. L. Bailey Grocery Company, 100 NLRB 576, 579, and Sportswear Industries, Inc, 147 NLRB 758. General Counsel admitted at the hearing that these letters fall short of specifying the unit with the particularity required by these decisions, but claims that the deficiency is supplied by the petition which limited the unit to production and maintenance employees at Plainville, with specified exclusions noted therein. I agree with this contention. Though Respondent was in doubt from the April 10 letter as to the exact scope of the unit (whether one plant or more), that doubt was clarified by the Union at its request in the letter of April 19, but even before that by specific relinea- tion of the composition of the unit, and its limitation to one plant, in the petition. 2 He found the exact unit as "all production and maintenance employees of Trend Mills, Inc., and of Trend Latex & Chemical Company at their Plainville, Georgia, plant, including the tufting machine fixer, serger fixers, plant clerical employees, shipping de- partment employees, and the local truckdriver, but excluding over-tbe-road truckdrivers, office clerical employees, professional employees, guards, Bryon Reeves, Pat Tortosa, John L. Wooten, Ralph White, the dispatcher , the plant manager, and all other supervisors as defined In the Act." TREND MILLS, INC. 147 After receipt of these documents, Respondent raised no question about its composi- tion when it wrote the Union on the 24th, claiming only that a three-plant unit was the only appropriate one. Although the Union's letter of the 19th had not specifically included or excluded truckdrivers, Respondent recognized, as it now admits, that the Union was thereby claiming all employees at Plainville, except those excluded by the terms of the Act. The letter did not allude to truckdrivers or the petition description, hence Respondent had no reason to believe that the Union was thereby changing or withdrawing the composition of the unit as stated in the petition, which was significant as the formal unit designation required by law. Considering the three documents together, I conclude that Respondent on April 12 (when it got the formal petition) had no reasonable doubt as to the scope or composition of the unit sought, hence I find that the Union made a proper demand for bargaining April 12, 1964,3 for employees at Plainville only in the unit set forth in the petition. 2. The appropriate unit On the unit issue, Respondent claims that at the time of the Union's request to bargain, it had a bona fide doubt as to the appropriateness of the single-plant unit claimed by the Union, and that it is not required to bargain as to that unit because in fact a multiplant unit covering Plainville, Dalton, and Rome (or in the alterna- tive, Rome and Plainville) is the only appropriate unit . It is well settled that an employer's good-faith doubt as to the appropriateness of the unit is a good defense to a charge of unlawful refusal to bargain. See N.L.R.B. v. Dan River Mills, Incor- porated, Alabama Division, 274 F. 2d 381, 386-389 (C.A. 5). But his doubt about this or the Union's majority status may not be considered bona fide if it appears that he has in fact denied recognition by using that excuse as a subterfuge to delay rec- ognition or to gain time in which to take action to undermine the Union or to dis- sipate its majority. N.L.R.B. v. Irving Taitel, et al., d/b/a 1. Taitel and Son, 261 F. 2d 1, 5 (C.A. 7), cert. denied 359 U.S. 944. General Counsel's main contention is that Respondent had engaged in a pattern of unlawful coercion of employees through- out the campaign of such kind and extent as to demonstrate that it never entertained a bona fide doubt of the Union's majority, but was trying from the beginning to avoid recognition by dissipating the Union's majority status by unlawful means, so that its defenses based on the lack of appropriate unit and majority status of the Union are untenable under the principle of Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified 185 F. 2d 732 (C.A.D.C.), cited in Cameo Lingerie, Inc., 148 NLRB 535. Since this contention rests upon alleged unlawful conduct of Respondent starting before the Union requested bargaining and Respondent posed the unit issue, it over- rides that technical issue and requires analysis of Respondent's overall conduct before we consider the unit question in itself. That approach is also required by General Counsel's argument that alleged coercive conduct of Respondent requires that only limited rules of evidence be applied in determining whether union authorization cards offered by him are reliable proof of the Union's majority status, However, the Board has held that resolution of a Joy Silk Mills issue alone requires a considera- tion of all relevant circumstances, and cannot be solved by any mere mechanical approach .4 3. The nature and scope of the Union's campaign, and Respondent's reaction to it The Union began its campaign on March 21, 1964, when it distributed white union leaflets containing a white union authorization card to employees at the Plainville plant gates. It distributed six other leaflets to employees through May 24, and held meetings with groups of employees on March 23 or 24 and 31 and April 7, 1964. Respondent learned about the campaign as soon as the leaflet distribution began, was also aware that employees at Plainville thereafter openly discussed it among themselves and with supervisors in the plant, and kept abreast of the progress of the campaign both from talks with and rumors among the employees and perusal of various union leaflets as they came out. After discussions among top management, 8Jaek Gordon, et al., d/b /a Ivy Hill Lithograph Company, and Record Packaging Cor- poration, 121 NLRB 831, 835, footnote 13. I have carefully considered other cases cited by Respondent on this point, but find them inapposite on the facts. ' In Cameo Lingerie, Inc., 148 NLRB 535, the Board held that "the question whether an employer who commits violations of Section 8(a) (1) also intends to undermine the Union's majority or otherwise defeat the employees ' unionization may not be answered mechani- cally ; it must turn upon a consideration of all relevant circumstances." 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Production Manager Harry Haines, who was responsible for production in the three plants, early gave plant managers and foremen orders to report to him anything they heard about the campaign, as well as employee complaints of any kind. When Respondent learned from these sources that the Union was making "serious inroads" among the workers (as stated by Vice President Lipson), it determined to have supervisors talk to employees, to ascertain their complaints, to acquaint them with existing company benefits and "sell them on the company," discuss with them the advantages and disadvantages of unionization, and explain its own reasons why it preferred no union at Plainville. In preparation for this, Plainville Plant Manager Jack A. Tolbert and Production Planning Manager John L. Wooten were briefed by Haines and company counsel on the procedure that supervisors could follow under the Act, including the advice that they could not interrogate employees about sign- ing cards or their union activities or sentiments, nor could they make any promises or threats to them to persuade them to abstain from joining or voting for the Union.5 Starting shortly after the filing of the petition, Tolbert began to have talks with employees on Company time, some at their work stations but most in the office, in the presence of Production Planning Manager John L. Wooten. He had several talks with many of the employees on the subject. In five or six of the earliest office dis- cussions Vice President Nathan Lipson was present. In this manner, management contacted most of the work force of about 85 within 3 weeks after April 11.6 In the discussions at which he was present, Lipson did most of the talking, with Tolbert and Wooten adding some comments. He asked the employees at the outset if they had any problems about which they were unhappy, and said they always had the right to talk directly to management about them. He and Tolbert also asked employees one of these questions: how, or if, they felt a union in the plant could better their position or get them more than they already had; what they thought or knew about unions in general and the purpose and operation of a union; and what they thought or knew about this Union. In answer to the questions, employee Wyman Autry told the officials that the employees needed a union because he felt some employees had not been treated fairly, and cited an instance where some had failed to receive requested transfers from second to first shift after a talk with former General Manager Hines in 1962 and 1963 before the campaign started. However, he also said that he did not know if the Union could help the Plainville plant. This led to discussion about the effect of unions in big and small plants, and Tolbert and Wooten stated their opinion that a union was good in large plants like the nearby Celanese mill, but the Plainville plant was too small for it to do much good. Wooten also cited his experience with a union in another local textile plant, saying 30 or 40 people had lost their jobs there during a strike. During the talk, Autry mentioned that he had been to a union meet- ing where the union agent and organizers had told the employee about the benefits the union could get them. Tolbert replied that the employees should go to these meetings to hear what the Union had to say. Lipson added that he felt the Union could not help the employees at Plainville in any way and, to prove it, he would be glad to debate the pros and cons of union benefits with the union men and try to prove they were liars. In closing, Lipson and Tolbert told Autry that it was a free country, that he had to make up his own mind how he would vote, and they would be very happy if he voted against the Union, but it was his own decision to do as he wanted. In answering the questions, employee Edward E. Chastain said he did not know how a union would benefit the workers, but complained that he did not like to work 12 hours a day, for 6 or 7 days a week, and wanted Sunday off. On query by Lipson, he said his complaint to former Manager Hines about the Sunday work had produced no result. Lipson then said that Chastain should see Tolbert about it, and they would arrange it so that he would not have to work any Sundays in the future. Lipson presented in all these talks the advantages of the Company by explaining how the Company was growing, its plans for the future, that it was always trying to do its best for the workers by paying the best wages and giving the best benefits it could afford, that an employer often can pay employees only what it can afford, and that a union can only get them certain benefits but not some things which the employer could not afford. 5 Tolbert already knew of these limitations from his past experiences with the same union while a supervisor at another local textile mill e The above facts are found on credited testimony of Lipson , Tolbert, Wooten, Haines, and James O'Shea. TREND MILLS, INC. 149 Employee Lumis B. McCormick answered Lipson's questions by asserting that he thought the workers would benefit by a union "if it was run right." Lipson asked him if he had ever belonged to a union or worked in a union plant and McCormick said he had in California. He also complained about a "raw deal" he had received in his transfer to another job after a carpet had been damaged in a machine be was operating; he felt he had been unfairly charged with the damage, but got nowhere in complaining to former Manager Hines. Lipson did not attempt to settle this problem for him, but made the same statements and arguments about Company benefits that he made to others.? He also told McCormick that the Company would not "take this lying down." 8 About May 1 Production Manager Haines called McCormick to his office for a discussion of his complaint. McCormick again recited the complaint and his inability to get redress. He also said other employees had problems on which they could not get help from Hines since he had transferred to Plainville. Haines said workers always had the right to see him (Haines) about such problems. He then asked McCormick what he thought a union could do for workers at Plainville, and McCor- mick said he really did not know, but felt it could do something about the problems he had mentioned, saying he had worked in a union plant in California and felt a union was a good thing for workers if run properly. McCormick also complained about his general lack of progress in the plant, and Haines explained to him the Company policy of promotion on merit plus other factors as job vacancies appeared, and said McCormick would be considered for such openings as they came up in accordance with the policy.° Later in May, Haines had a similar talk with employee Edward E. Chastain in which he asked similar questions and expressed some of the Company antiunion views pre- viously stated by Lipson and Tolbert. On an occasion about the middle of June, Wooten asked Chastain at his machine what he thought about the Union, and Chastain replied he did not think it would come into the plant.io Tolbert's remarks to most employees followed the same general pattern as Lipson's remarks. He began by asking the worker how he was getting along, how he liked his job, and if he had any complaints. If the worker stated a grievance, or indicated that he had been unable to have it settled, Tolbert would discuss it, find out what attempts the employee had made to obtain redress from his foreman, state the Company posi- tion on the matter, and try to satisfy the worker's complaint if possible. At the same time he would remind the worker that if he had any other complaints, he could always come to Tolbert who would be ready to discuss it with him and try to straighten it out. He then said he knew there was a union campaign going on, and he wanted to know how the worker felt "that the Union would help you and other workers, and in what way"; at times he phrased the question substantially thus- "What do you feel the Union can give you and other workers that the Company is not already giving"; he also asked some, "What do you know about this union" or "this union business," and others, "What do you know about Unions." Some workers replied that they knew little or nothing about this Union; others said they thought it would be a good thing for the workers if it was run properly, and that it was needed to get better conditions and wages or correct instances of unfair treatment of employees. In answer to both groups, particularly those who stated positive views and complaints, Tolbert explained in detail the advantages and benefits Respondent was already giving employees, explaining that it was paying them the best wages and benefits it could afford, that the Company was treating them right, and he did not think that the Union could get any- thing for them that they could not get for themselves; and that this was a small, new plant, and there was a limit to what the Company could afford to pay them and give them in benefits, if it did not have money to give them more. He also said that if the Union came into the plant and forced the Company to pay higher wages and give In a talk with Tolbert shortly before, McCormick had made the same complaint, and Tolbert had replied that he was not in charge of the plant when that happened, but that he did not think McCormick would do a thing like that, that he had more confidence in McCormick's ability to do any job he was given. 8 The findings on the Lipson talks are made on credited testimony of the employees involved, and corroborating testimony of Lipson, Tolbert, and Wooten. Testimony of any of these witnesses at variance with the findings is not credited. e This discussion is found on credited testimony of McCormick and Haines io These talks are found on credited testimony of Chastain. Testimony of Haines and Wooten In conflict therewith is not credited, in view of the Company policy and campaign of widespread talks with and interrogation of employees found above. However, for rea- sons stated below and in the face of Wooten's categorical denial, I do not credit Chastain's testimony of a query by Haines about signing a card. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits it could not afford, it might force the Company to shut down if it could not make a profit, and might put it out of business . He also told some workers that if the Union came into the plant , while it might get them a raise in wages by negotiation with the Company, the workers would also have to pay union dues, and , since the carpet industry was very competitive (with very small profits for the employers) if the Union compelled the Company to pay higher wages, it would have to make changes to cut costs in order to remain competitive with other concerns to stay in business- one change would probably involve cutting down on overtime work and putting on a third shift. He also stated that in his opinion the Union would not work well in a small plant, and that the workers would be better off without it. He explained to each worker that he was only trying to give him Tolbert's and the Company 's views about why a union was not advisable in the plant , but was not trying to tell the worker how to vote in the election or what to do about the Union, as that was the worker's own business, he was free to make up his own mind about it, to decide whether he was for or against the Union, that there would be a secret ballot election in which he could vote as he pleased, but Tolbert wanted him to think seriously before he made up his mind how to vote , and hoped that after considering the Company benefits, the workers would vote against the Union.11 In Tolbert's talk with Eddie Stanley, the latter asked if he would get a 5-cent raise, reminding Tolbert that workers in the Rome and Dalton plants had recently received one. Tolbert replied that Respondent had given those raises recently, in line with similar raises given throughout the industry, but that, on advice of its counsel, Respondent could not give raises at Plainville while the Union 's campaign and an election were pending, but when that was "settled" the Company would be free to do what it wanted about raises , except that if the Union got into the plant, any raise would be negotiated with it 12 On an unidentified date in mid-April , Tolbert called employee Emmett J. Brown in for the usual talk. That morning Brown had notified Tolbert that he was quitting; nevertheless, Tolbert called him in later that day and he and Lipson asked Brown the basic question found above , after first advising that they were calling all employees to the office to explain Respondent's position about the Union Brown replied that he did not think the Union would help the workers a bit. Tolbert said that if he felt so positive about that, he might go out and tell the other workers how he felt Brown replied that he did not want any workers mad at him. Brown asked Tolbert about a raise for the workers, and Tolbert gave the same reply as he had made to Stanley as found above.13 71 These findings are based on credited testimony of numerous witnesses of General Counsel , and admissions of Tolbert and Wooten However, I make no finding that supervisors in these talks asked any witnesses if they signed union cards or went to union meetings, for employees who testified to this, such as Robert T. Bailey, Willie F. Drain, Roy Max Tomlinson , Marvin E Jackson , Barbara J. Gravitt, and Eddie Stanley , placed such questions in short talks which consisted for the most part of nothing but the question from Tolbert, at times with a short answer from the employee, other times not ; some were vague about the dates and details of these talks ; others contradicted themselves on the point ; and their general credibility was fur- ther weakened by the fact that they very reluctantly admitted other remarks by Tolbert which indicated that there was far more to each discussion along the lines stated by other witnesses and the supervisors as found above . I therefore credit denials of Tolbert, Wooten, and Lipson of any questions about signing of cards or attendance at union meetings ( except as noted hereafter ), particularly since their other admitted questions were well calculated to, and did in some cases, lead employees to disclose their union sentiments , as Tolbert admits za I find this talk on credible testimony of Tolbert and partial corroboration from admissions of Stanley . I do not credit other testimony of Stanley to the effect that Tolbert suggested he tell other employees the Union was not good for workers and not needed in the plant , for, even if I credited Stanley's testimony about queries about the union card and attendance at union meetings , his answers were noncommittal and not the type of positive answer indicating an antiunion bias consistent with the Company views, which might lead Tolbert to suggest that he express his feelings to other workers and thus support the Company position. Is This talk is found on clear and credible testimony of Tolbert , as corroborated in Part by testimony of Brown , whose memory of the occasion was very vague , particularly on the exact terms and sequence of the talk about raises In view of his unimpressive testimony on this, I do not credit other testimony of his at variance with the findings, particularly in the face of Tolbert's categorical denials. TREND MILLS, INC. 151 When some employees were questioned about their union views, they replied that they felt a union would be good in the plant, based on their experiences in other plants, and others said they were not sure if it would work in Plainville. In response to such answers, Tolbert and Wooten repeatedly referred to workers' experiences with the same Union in the nearby Dixie Bell textile plant.'4 Thus, when William Holbert told Tolbert that he thought the Union would be a good thing in a big mill, but not in a small place like Trend, he explained that he had seen how workers at Dixie Bell had lost worktinie. Tolbert then told him, "If you feel that strongly" about it, "you might tell the other workers how you feel, and find out how they feel." When Dixie Bell entered the discussion, Tolbert also reminded employees that workers there were on "short time" (which was a seasonal condition in the industry and at Plainville at the time) and that when orders for products dropped off during the slow season, so that workers were on "short time" or laid off, the Union could do nothing about it, because the Union could not get orders for Respondent. Employee Eugene T. Autry answered the usual questions by Tolbert by saying that he did not know too much about the Union, and they then reverted to the Dixie Bell situation, where both knew that the workers had been talking about a strike during the contract negotiations, and Tolbert asked Autry what would happen if the Union organized Trend Mills and called a strike at Plainville. Autry asked what he meant, and Tolbert asked him if he had not just finished building a new home. Autry said, "Yes,"and Tolbert asked what would happen if Autry was out of work 3 or 4 months during a strike. Autry replied that he did not know, but he guessed "that the First Federal [holding the mortgage on his home] would probably take over the house." In response to the usual queries, Barbara J. Gravitt told Tolbert she had heard about the Union, but did not know anything about it, and her "nerves had stood about all they could," mentioning that she had relatives and friends working at the Dixie Bell plant, that they were on "short time," talking about a strike, having arguments about the Union, and a "rough time," and that there had been some fighting reported there during the labor trouble. Gravitt told Tolbert her nerves were so torn up that she wanted to take her hat and quit her job. Tolbert talked her out of quitting, saying that what she did or how she voted about the Union was entirely her own business, that he did not want to talk to her about that. In the discussion with employee Mills H. Lemons, Tolbert said that Lemons could say anything he wanted to about the Union, it would have no effect on his job. He asked where Lemons' father worked. Lemons said, "At Dixie Bell," and added that he knew about the labor situation there and it was not good, his father was on slack time, and the workers there had been promised many things by the Union but it had gotten them nothing. Tolbert said he had heard talk of a strike there, and asked Lemons if he and his father were the only ones working in his family. Lemons replied they were. Tolbert commented that if his father lost his job at Dixie Bell, then Lemons would be the sole support of the family, to which Lemons agreed. He also said that if the Union came into Plainville, and "if we start having labor and strike problems, our customers would take their business elsewhere where they can get their orders filled, and that could cause the Company to lose some customers and also cause slack time." Tolbert also said that whatever Lemons wanted to do, or had done, about the Union was his own business, that he could do as he pleased, that if he had signed a card it would not affect his job, but that he should think it over care- fully before he did anything, as he had a responsibility toward his family. Lemons then admitted that he had signed a card. Tolbert asked him if he had been to a union meeting. Lemons said he had. Tolbert replied that be had a right to go to union meetings, and told him to get the facts on both sides and then make up his mind, but assured him that his job would not be affected by whatever he did.'5 Tolbert and Wooten talked to brothers Loyad E. and Jerry Carter together in the office. As will appear hereafter, both boys were active in soliciting employees to sign union cards. After Tolbert asked the basic question about the benefits of the Union "The record shows that in November 1962 there had been a Board-conducted election at the Dixie Bell plant, about 10 miles from Plainville, which the Union won, and there- after it conducted protracted negotiations for a contract with the employer, but although it had promised the employees many things, no contract had been signed at the time the Union began its campaign at Plainville. Many of the Plainville employees had relatives and friends working at Dixie Bell, who had told Plainville workers about the Dixie Bell situation, and it was freely discussed by workers at the Plainville plant. The Union victory and negotiations at Dixie Bell were also discussed in various union leaflets dis- tributed at Plainville. "The Lemons talk is found on the basis of credited testimony of Lemons and admis- sions of Tolbert. Testimony of either witness at variance with the findings is not credited. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this plant, the boys replied that they thought it would benefit them by getting more wages and better working conditions if it was run right, mentioning that their father worked at the local Celanese plant where the Union had represented the workers for years and had done a good job. Tolbert agreed that the Union would probably do a good job in a place as large as Celanese, but he did not think it would help workers in a place as small as the Plainville plant. He also said that President Munchak had always taken a personal interest in his workers and done everything he could for them, and that any benefits they got would come from the Company, and the Union could not get them anything which the Company could not give. Tolbert also out- lined the present company benefits, and said the Company was paying the best wages it could afford to pay. Tolbert also added that if the boys had any complaints about wages, jobs, or working conditions, they should come to Tolbert who would always try to straighten it out if he could. Tolbert also mentioned the Dixie Bell plant, and that employees there were on slack time. Wooten said that employees there had been driving new cars before they tried to get the Union in, but that when they went on "short time," they were losing their cars and "riding bicycles." In closing, Tolbert told the boys he was not trying to tell them how to vote, because they could make up their own minds and do whatever they wanted, but he was only explaining the situa- tion and why he and the Company felt the Union would not help the workers in this small plant, and that they did not need it there.1e In separate talks with some workers who approached him for his views about the Union, Wooten asked them the same questions as Tolbert asked, expressed similar opinions about wages and other advantages at Plainville, compared their wages and working conditions with those at the Dixie Bell plant, expressed the opinion that the Union would not "work out" in a small plant like Plainville, indicating to some that he had once lost a good job in another plant because of a union, and concluded with the same reminders that the final decision as to whether they wished to vote for or against the Union would be theirs in an election.17 Respondent argues strongly that the questions put to employees were not unlawful because they came incidentally in the course of frank and legitimate exchanges of views and opinions about unionization between employer and employees. It is clear that much of each discussion involved such lawful expressions of views by both sides, and that most of the Employer's statements on the disadvantages of unionization, illustrated by references to happenings in other unionized plants, were legitimate expressions of opinion on some possible consequences of unionization to the employees in their job security and aspects of their personal life,18 but Respondent also admits that questions about union sentiments and knowledge of unions, both in general and with respect to this Union, in fact caused many employees to disclose their prounion or antiunion sentiments. This was not a mere happenstance during lawful exchange of views, for Lipson admitted that the interviews were designed to learn employees' grievances, and that during the campaign and these discussions Respondent made an analysis of the work force to show which workers were against the Union. from information "volunteered" by the employees or others, and that Lipson and Tolbert thereby learned most workers' views on the subject I am satisfied that much of this information was "volunteered" in response to Respondent's questions Hence, I find that the systematic and all-inclusive interrogation of workers during these talks about their union sentiments were not incidental or casual queries, but deliberate inquiries designed to find out the extent of the Union's "inroads" into the work force, were well calculated to coerce and restrain employees' exercise of their right of free choice of representative protected by the Act (even though Respondent took pains to tell each one that the way he voted was his own decision), and that Respondent thereby violated Section 8 (a)( 1) of the Act. I also find that Respondent violated Section 8 (a) (1) by: (1) Lipson's, Tolbert's, and Haines' suggestions to employees that they could always bring their grievances direct to management for settlement. Lipson's direct settlement of the grievance of Chastain about Sunday work, and Tolbert's similar consideration of grievances and attempts to settle them on the spot. By this conduct, Respondent made it clear both by word and action to employees that they did not need a union but could bargain and settle their own grievances directly with manage- 16 These findings are based on credited and mutually corroborative testimony of Tolbert, Wooten, and the two Carters 17 These findings are based on credited testimony of Wooten, Mincey, C. W. Wilson, and Robert F. Payne. 1s See Mayfair Midwest, Inc., 148 NLRB 1602. TREND MILLS, INC. 153 ment, and this amounted to a promise (and in Chastain's case a grant ) of benefit well calculated to coerce employees in the exercise of their free choice of bargaining representative.la (2) Tolbert's suggestions to Emmett J. Brown and William Holbert that they tell other employees the antiunion views they had expressed to him.20 This unlawful conduct is the type which under well-settled Board law would be well calculated to undermine a union's position with the employees and dissipate its majority status, and would normally justify a rejection of the defense of lack of majority status or good-faith doubt of such status on a refusal-to-bargain issue, under the Joy Silk Mills doctrine. However, the record clearly shows that all this conduct occurred after the Union on April 11 announced publicly to employees that it had signed up 71 percent of the Plainville workers and had filed a petition with the Board for an election. The record shows that all of 54 cards offered as proof of its majority status are dated prior to April 11, the date the petition was filed and the cards were formally received by the Board's Regional Office as evidence supporting the petition. The complaint alleges that the Union achieved majority status on or about April 8. Hence, it is fundamental to the position of General Counsel on the basic refusal-to- bargain issue and the application of the Joy Silk Mills doctrine that the majority status as of April 8 or I1 be established. Respondent argues that no bona fide majority in fact existed on the latter date, hence an essential element of General Counsel's case is lacking, and it cannot be said that Respondent's actions were taken, or designed, to dissipate the majority status. This requires examination of the authorization cards offered on this point. B. The alleged refusal to bargain 1. The appropriate unit As found above, the Union began its campaign at the Plainville plant only and its petition in the representation case claimed a unit of production and maintenance employees confined to that plant, with the usual exclusions. Respondent does not here contest the specific inclusions or exclusions. There is no proof that the Union extended the campaign at any time material herein to the Rome or Dalton plants. Respondent contended in the representation proceeding that the only appropriate unit comprised the three plants, or in the alternative, Rome and Plainville, on the theory that prior to and during the campaign Respondent had been preparing to effect a merger of operations of the three plants, on the basis of an economic decision reached long before, and that the solidation had not been completed before the campaign solely because of the illness of its president, Theodore M. Munchak. This issue was litigated in the representation case, in which the Regional Director found that the Plainville plant unit was appropriate, and rejected the proof indicating the projected merger and its effect as largely speculative. Respondent adduced evidence here tending to show that certain steps of the merger pending at the time of the R-case hearing (May 8, 1963) had since been taken, to the extent of transfer of some Rome operations to Plainville, involving expansion of that plant. However, when the hearing herein began, the consolidation was not complete, all three plants were still operating, and it appeared that even after the changes are completed, the three plants will still be operating, though the exact fate of the Rome plant has not been decided. Munchak also admitted that in October 1963, the operations at the three plants were still entirely separate and subject to different marketing conditions, which would not mutually affect operations at the three plants. On these facts, I must find that, while there is indication of a growing interrelation between the three plants which might increase as and when Respondent's merger and expansion plans are completed, as of the time when Munchak testified there was still enough disparity between the opera- tions of the three plants to indicate that a unit limited to Plainville was not inappro- priate. Hence, as the Union had confined its organization campaign to that plant, I Cincinnati Cordage and Paper Company, 141 NLRB 72 ; American Manufacturing Company of Texas, 139 NLRB 815, 816; The Triple AAA Water Co., 142 NLRB 803, 807. 'Reeves Broadcasting & Development Corporation (WHTN-TV), 140 NLRB 466, 467; Brennan's, Inc., 147 NLRB 1545 I find no violations of the Act in Tolbert's or Wooten's statements indicating that (1) forced shutdown of the plant, layoffs, or loss of overtime might be an action forced on Respondent If the Union compelled it to pay wages or give benefits it could not afford, (2) if a strike were caused by the Union, loss of work occasioned thereby might have an adverse effect on workers with debts , etc., (3 ) Respondent's legal inability to consider or give raises while the union campaign and an election were pending , or (4) Respondent would consider employees for promotions or job vacancies in accordance with its normal policies as vacancies appeared. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find on all the facts that all production and maintenance employees of Respondent at its Plainville, Georgia, plant, including the tufting machine fixer, serger fixers, plant clerical employees, shipping department employees, and the local truckdriver, but excluding over-the-road truckdrivers, office clerical employees, professional employ- ees, guards, Byron Reeves, Pat Tortosa, John L. Wooten, Ralph White, the dispatcher, the plant manager, and all other supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act 21 2. The alleged majority status The record shows that in the period April 10 through 19, 1964, Respondent employed 96 people in the appropriate unit found above. The minimum number of cards to establish a majority is 49. General Counsel offered 54 cards in evidence, which will be discussed in groups where possible for sake of brevity.22 a. Cards not signed by employees 23 I conclude that the following cards are not reliable evidence of majority status: William A. Fox did not sign the card containing his name nor authorize anyone to, fill it out or sign it for him. His repudiation of the name written on the card is cor- roborated by the obvious difference between that writing and his actual signature which he placed on the back of the card under a written repudiation of the signature on the face, when interviewed later and privately by a Board agent. Benjamin H. Coulter received a white card as part of a union paper, like that issued by the Union on March 20, 1964, as noted hereafter, but denied that he signed the proffered card containing his name or anything similar to it.24 2i This is the unit found appropriate by the Regional Director after full litigation of the issue In reaching this decision I have considered carefully the testimony adduced by Respondent in the representation case, and the extent to which testimony of Munchak shows changes in the overall operating picture of the three plants. It is well settled that, even where a single-plant unit and multiplant units are ap- propriate, the Board will often find that the smaller unit is appropriate, particularly where the union confines its campaign and majority claim only to that unit. See Liebmenn Breweries, Inc. of New Jersey, 142 NLRB 121, 124, 125 22 Most witnesses called to prove cards ( except those repudiating cards ) gave credible testimony that they signed, or authorized execution of, cards on or about the dates set forth thereon, but all before April 11 Where some witnesses' memories failed them on the date, as in the cases of James E. Shelley, Jerry M McClure, and John Smith, I conclude that their cards were signed or execution authorized sometime before April 11, on the basis of credited testimony of O'Shea that he received them all by the 9th, and deposited them with the Board on the 11th with the petition filed that day I also have noted that all cards offered bear a date stamp of April 11 , showing their receipt on that date at the office of Region 10. 23 The ensuing findings on each card are based on credible and uncontradicted testimony of the person named on the card , except where otherwise noted 24 Knowing beforehand that Fox and Coulter would repudiate their alleged signatures, General Counsel tried to impeach them as his own witnesses by offering genuine samples of their signatures made the day they testified , claiming they were "necessary" witnesses whose testimony could be impeached by the party calling them, by proof of a genuine signature, on the theory that if mere comparison of the two writings in each case in- dicated they were the same, this would clearly prove that both were falsifying, and entitle me to find that they in fact signed the cards. General Counsel did not show that either witness was hostile; nor did he prove how the cards got into the hands of the Union, whether by mail or messenger ; and the mailer or messenger, if any, was not iden- tified. While I rejected the offer of recent signature by Fox as an improper attempt to impeach his own witness , without any proof that he was hostile (he was no longer em- ployed by Respondent when he testified ), comparison of this signature with Fox's signa- ture on the back of the card shows clearly that the same hand wrote both, and that a different writer signed the name on the face of the card Even though the questioned and proven writings in Coulter's case appear on inspection to have similarities in forma- tion of some letters, I find no rule of law or evidence under which the signer of a piece of paper, which is not required by specific statute to be signed or witnessed , can fall in the category of a "necessary" witness as to the paper, so as to permit his impeachment in this manner and acceptance of other acts by him to prove the contrary of his sworn testimony. Even if both witnesses' adoption under oath of recent signatures be treated as a sworn statement or affidavit as to that signature, it is well settled under the rules of evidence applicable in the Federal Courts that prior ( and perhaps contemporaneous) TREND MILLS, INC. 155 Sometime before April 11, Willie Cunningham signed a blue authorization card like the one offered by General Counsel (General Counsel's Exhibit No. 60), but wrote nothing on it but his name, and gave it back in that condition to employee Jesse Carver who had solicited him to sign. Carver had told him only that it was "for more money"; Cunningham did not iead it before he signed, and knew nothing about its contents or purpose except what Carver told him, from which he gathered that it would be used by Respondent to get him more pay. After talking to another employee who advised him not to sign, Cunningham got the card back from Carver in order to mutilate his name. Carver said he could not use it unsigned, so Cunningham threw it into a trash can, still blank except for his signature, and never saw it again until a Board agent showed it to him in July in a private interview, at which time he printed his name on the back with the notation "I did not sign no card." He rejected the proffered card as the one he signed, saying the one he signed and discarded had his fingerprints marked in glue from his fingers in the upper corner; the proffered card has no such soil marks; however, he admits the signature on the card looks like his 25 The other information now appearing on the card, while correct, is in another hand- writing, as is the name "Jesse Carver" in the space for signature by the solicitor or recipient of the card. Although Jesse Carver was called by General Counsel after Cunningham and testified at length about the signing of his own card, he gave no testimony about the Cunningham card, hence Cunningham's testimony on it stands uncontradicted, and from this and the card itself I find that Cunningham signed the card, gave it otherwise blank to Carver, then retrieved it and threw it away, still blank except for signature, and that in some unexplained fashion it was filled in later by another person 26 and sent to the Union. On these facts I conclude that Cunning- ham first signed the card and gave it to Carver with the implied authority to fill it in and give it to the Union, but then retracted that action and authority by getting it back and throwing it away. Hence, the card is not reliable evidence counting toward majority status.27 Some time before April 8, 1964, James H. Kirby and J. R. Bennett got blue authorization cards with union leaflets at the plant gate, and were thereafter solicited to sign them by employee William Holbert, an employee solicitor for the Union. Holbert told each that the cards were needed to get an election, and that there would be an election if 70 percent or more workers signed them. Kirby replied that if that was all it was, Holbert should go ahead and sign a card for him and send it in. Kirby wrote his name and address on a slip of paper and gave it to Holbert, and at the same time Bennett gave Holbert his name, address, and telephone number on another slip. Both employees told Holbert to fill out and sign the cards and send them in. Bennett had read the blue card that he got beforehand, and on the basis of the wording on it, various union leaflets he had read before, and other remarks of Holbert, he under- stood that the card would be sent to the Board to get an election , at which he could vote as he pleased, and that after the Union won the election, he could join it or not as he pleased Kirby never read the card he got at the gate, or the one sent in for him. Neither employee gave anyone other than Holbert authority to use the information they gave Holbert or to send in cards for them. Holbert later told Bennett that he had not filled out or sent in the card for Bennett, but had some other unidentified person do it. He never told Kirby anything about his disposition of the Kirby slip, although the latter heard that some other worker had sent in a card for him. Holbert corroborated both men on the stated "election" purpose for which the cards would be used, and admitted he did not state any other purpose, and that he also told them the cards would be kept confidential, that no one but the Union would know who had signed them. He made these statements to them on the basis of similar statements self-contradictory statements under oath cannot be treated as having any substantive or independent testimonial value ; at most they can be used to discredit sworn testimony of a witness, and, if they do that, there is then nothing of record (absent other, independent credible proof) on which the trier of the facts can make a finding. Cf. N.L.R.B. V. Quest- Shon Mark Brassiere Co, Inc., 185 F. 2d 285, 289 (C.A. 2), cert. denied 342 U.S. 812; G & H Construction Company, 130 NLRB 923, 930. as The signature on it strongly resembles a genuine signature of Cunningham on General Counsel's Exhibit No 61 21 The "Jesse Carver" at the bottom of the card appears very much like the proven signature of Carver on his own card, and the fact that he did not testify to contradict Cunningham warrants the inference that he could not truthfully deny Cunningham's story. However, though a strong suspicion arises that Carver retrieved the card from the trash can and sent it in without authority from Cunningham, I find it unnecessary to make any finding to this effect. On these findings, I admit the card, General Counsel's Exhibit No. 60, and proven signature, General Counsel's Exhibit No. 61, in evidence 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made to him by employee Winford (Junior) Tomlinson, Jr., who had solicited him to sign a similar card, and by Union Business Agent James O'Shea. The cards offered as the documents of Kirby and Bennett were in fact filled out by employee Jerry McClure on April 8 at the request of Holbert who gave him the slips of paper which Kirby and Bennett had filled out, and were given to the Union by McClure. McClure's testimony, and inspection of the cards, shows that he stapled these slips of paper to their respective cards before he sent them in, but those slips were not on the cards when offered, and there is no proof as to what happened to them. I reject these cards on two grounds: lack of general or specific authority from Kirby and Bennett to anyone other than Holbert to complete and send them in, and, even if that basic defect were cured, the clear proof from all witnesses concerned that the only purpose made evident to both employees was that the cards would be used only for an election and no other purpose.28 I had reserved decision on the admissibility of the alleged Kirby and Bennett cards, and now reject them as not proven to be actual or authorized acts of either employee. Charles R. Johnson received a blue card sometime before April 8 from an unidenti- fied employee who told him it would be used to get an election. He did not read the card, but gave another employee, whose name he did not know but described as a young, sandy-haired man working on a beamer, the card and a slip of paper with his name and address, telling him to put them on the card and send it in. The man said he would do it. McClure testified that when he came to work the night of April 8, Holbert gave him a piece of paper with Johnson's name on it, and asked him to put it on a union card, which he did at the same time he filled out cards for Bennett and Kirby, He attached the Johnson data slip to the card itself, but the slip is not now attached to the card offered, though it bears a staple mark showing something had once been fastened to it; the whereabouts or disposition of the slip is not shown in the record. On these facts I must reject this card as evidence of majority status because of the lack of substantial and credible proof that it was made out by McClure upon either specific or general authority from Johnson. I therefore reject this card, General Counsel's Exhibit No. 26, on the offer of which I had reserved decision. Respondent claims numerous employees who either signed cards, or had others sign for them, did so solely upon the representation that they would be used only to get an election. Before considering the reliability of their cards, the contemporaneous remarks of the Union to employees about the cards must be outlined, as there is no proof that Respondent discussed the purpose or effect of the cards with them. The record shows that the first release of the Union was a white leaflet distributed by its agents at the plant gate on March 20, 1964. The four-page document listed benefits received by carpet workers who were members of this Union in other plants, suggested that Plainville workers could get the same benefits and a better standard of living through a union contract at their plant by filling out the "pledge card printed below," and urged them to join the Union and "win a union contract for your plant." A union authorization card was printed as an integral part of the leaflet, with dotted lines indicating it could be cut out. Addressed to the Union at its Dalton, Georgia, office, the card stated: (DATE) ---------------------------- 1963 I hereby accept membership in the Textile Workers Union of America, affiliate of the AFL-CIO-CLC, and of my own free will hereby authorize the Textile Workers Union of America, its agents or representatives to act for me as a collective bargaining agency in all matters pertaining to rates of pay, wages, hours of employment, or other conditions of employment with my employer, ----------------------------------- NAME OF COMPANY It had blanks to be filled in with the signer's name, his address and phone number, his employer, and other facts about his job. Prominent at the top was the word "Confidential"; at the bottom the card also stated "no initiation fee" and "no dues until you have a signed contract." These cards will be called "white cards" to dis- tinguish them from blue authorization cards distributed later in the campaign which do not contain the three words and phrases last quoted above, and which state in the body: (DATE)---------------------------- 196- 28 Englewood Lumber Company, 130 NLRB 394; Morris & Associates, Inc., 138 NLRB 1160, 1164. As will appear below, this limited purpose of the cards comprised the whole thrust of the Union's representations to employees , employee solicitors, and, through them, to other employees. TREND MILLS, INC. 157 I hereby accept membership in the Textile Workers Union of America of my own free will and do hereby designate said Textile Workers Union of America as my representative for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment or other conditions of employment. The Union became interested in the plant when employee John Pope conferred with Business Agent James O'Shea on March 12, 1964, about dissatisfaction of workers with working conditions at Plainville. After its first distribution of leaflet with card on March 21, O'Shea on March 23 or 24 conferred with employees Pope, Lumis B. McCormick, and Jerry M. McClure, explaining the Union's organization and opera- tion, and instructing them how to solicit other workers to sign authorization cards. In describing the Union's procedure, he said that: Under the law the Union needed only a majority of employees signed up to be recognized as bargaining agent, but it had a policy of getting about 65 to 70 percent signed up before he asked the employer to bargain with it. If the employer denied recognition, the Union petitioned the Board for an election, giving the signed cards to the Board. He emphasized that the cards would be kept secret and never shown to the public, and that only the signer, the Union, and the Board would know who had signed cards. He explained the bargaining procedure if the Union was recognized or won the election, pointing out that no dues were payable by employees until the Union got a signed contract from the employer. He gave the three employees blue cards for solicitation of other workers. At a second meeting on March 31, attended by about 11 employees, O'Shea reported on the number of cards procured, and said they needed about 65 to 70 per- cent of the workers signed up before the Union could ask for an election. He emphasized the confidential nature of the cards, telling employees they could vote as they pleased, for or against the Union, in the election, that if the Union won and came into the plant, the employees could still join or not join the Union as they pleased, and that if they signed the card they did not have to pay any union dues until a contract was negotiated and signed. He also told them that under Georgia law, although they signed cards, they still did not have to belong to the Union. He never told them that by signing the cards they became members of, or joined, the Union, or that they were presently "authorizing the Union to represent them"; the most he said on this point was that after signing they "had the protection of the Union" if the employer discharged or otherwise discriminated against them. As the Union did not have a card majority at this meeting, O'Shea urged those present to get more cards signed, and appointed several worker committees to solicit for that purpose. In soliciting workers thereafter, the committee members told workers sub- stantially what O'Shea had said about the election purpose. Thus, Winfred (Junior) Tomlinson told workers (including his brother Roy Max Tomlinson) the only reason for signing the card was to get an election, that it was "for a vote"; when some workers asked him if they would be making more money if they signed the card, he replied, "No, we will be just like we are, we have not had an election." However, the record does not show that any of the employee solicitors told employees that the card would presently put them under the "protection of the Union" for any purpose 29 At a final meeting on April 7 or 8, attended by about 22 workers, O'Shea announced that 21 That the election Purpose was impressed on the solicitors by O'Shea to the exclusion of all else, and that they in turn emphasized only this purpose in their solicitations, is highlighted by the fact that two solicitors, Winfred Tomlinson, Jr., and Jesse Carver, knew from reading the white leaflet that they were signing the attached white card partly to enable the Union to get more benefits for them, which indicated "representation for collective bargaining"; yet they did not state this purpose to workers. Other facts in- dicating the overriding emphasis on the election purpose are: (1) the Union's filing of the petition on April 11 without giving Respondent a chance to respond to its April 10 re- quest for bargaining, which Respondent received April 12; and (2) the Union's distribution of a leaflet at the Dalton plant on April 18 or 19 advising workers there about the campaign and filing of the petition at Plainville, and urging that they could have their own union by 65 percent or more of them signing TWUA cards, sending them to the Union, and representing that the cards would be "confidential. The Company never sees them. They are used to show the Government to get an election in your plant " Al- though O'Shea professed no knowledge of this leaflet, he did not deny that it was Issued by the Union, and its composition including the same name, address, and telephone num- ber at the bottom as the Union used in the Plainville campaign , convinces me that it was an official union propaganda leaflet, and a cogent Indication of the Union's intent to secure cards at Plainville only for an election. 15S DECISIONS OF NATIONAL LABOR RELATIONS BOARD enough signed cards had been procured to make a majority and win the election, that he would notify Respondent of that fact, and if Respondent refused recognition (which O'Shea says he expected), the Union would petition the Board for an elec- tion 30 It is clear from the above facts that the only actual and announced purpose of procurement of the cards was to secure an election, in which employees who signed were not bound to vote for the Union, nor even to join it later if the Union won. The Union's whole conduct was thus clearly calculated to point out to employ- ees only this limited purpose of the cards, and to impress on them that the card did not obligate employees in any way. Respondent claims cards bearing the names of 12 employees who did not sign cards,31 but authorized others to sign and fill them in, must be rejected because these employees gave that authority only on the representation that the cards would be used only for an election I consider these seriatim: Robert L. Mincey received a white card, read it over, had his wife fill it out, signed it personally, and mailed it to the Union on March 24. No one talked to him nor did he read any literature about it before he signed it, but he testified that he under- stood the card was "for us to have a union out there," and " to get a union," that no one talked to him about an election, and he did not know how the Union would get into the plant, although he "figured it would come to an election," and if it came to that he would vote "yes." He admitted that he heard "everybody" talk about "our union election" and he "took for granted the union was for an election, you have got to have an election to have a union,' and "we were betting on our election." It is clear from this testimony that, although he had read the card and presumably could understand the wording on it, Mincey realized he was signing a document designed to get a union in the plant, and that, while he was not sure about the exact proce- dure, he understood that an election was necessary before the Union could get in. However, since he clearly wanted the Union in, I must conclude that he signed the card with the understanding from it that it amounted to a voluntary adherence to the Union even before an election, and despite the prevalent talk about the election. I consider the card reliable evidence toward majority status 32 Loyad E. Carter on March 21 had his wife sign the white card he cut out of the leaflet distributed on the 20th. He read the card before she signed, and knew that it was an authority to the Union to represent him, which he understood both from reading it and what he had been told about such cards by his father who had been a union member 17 or 18 years. He says he signed it to get the Union in the plant to help the workers get more pay and benefits. He also admitted that before the Union came in, and could get benefits, an election was necessary, and that he learned from talk with other workers that there would be an election if enough of them signed cards, that the card did not bind him to vote either way at the election, and that he could join the Union if it came into the plant. While he knew that an election would have to be held before the Union could get benefits for him, I find he signed the card to enable the Union to represent him for that purpose, hence the card is reliable evidence toward majority status. On some date shortly before April 1, John Pope authorized McCormick to fill in, sign, and send in a blue card for Pope. McCormick did it on or about March 26. Pope was the employee who had first contacted O'Shea about bringing the Union into Plainville and, when he asked McCormick to send in the card, he explained to McCormick that he had talked to O'Shea, the card was "to organize the Union," and the Union needed a certain percentage signed by employees in order to get an election. Pope had been in the past a member of the United Furniture Workers Union in a nearby furniture factory, and he had seen similar union authorization cards there and knew their basic purpose.33 From these facts I find that Pope authorized McCormick 11 The above facts are found from credited admissions of O'Shea and numerous witnesses of General Counsel. Testimony of O'Shea at variance therewith is not credited. n Robert L. Mincey, Loyad E Carter, Clifford W Wilson, Winfred Hobgood, Jr, Robert T. Bailey, Robert L. Pruitt, Willie F Drain, Hollis V. Bailey, Jack H Jones, Eddie Stanley, Benny Stanley, and John Pope 12 See Cumberland Shoe Corporation, 144 NLRB 1268 33 These findings are based mainly on credible testimony of McCormick and O'Shea, as corroborated in part by testimony of Pope. While testifying, Pope was laboring under the handicap of knowing that he had an incurable bone and blood disease ; he was ob- viously sick when testifying, which accounts in large part for his vague and self- contradictory testimony. However, he admits various talks with O'Shea both at the union hall and elsewhere, and admits he might have authorized McCormick to send in a card for him, but cannot recall the incident. I therefore have credited his admissions to the extent that they are consistent with the clear testimony of McCormick and O'Shea. TREND MILLS, INC. 159 to send in the blue card for him with knowledge that he was thereby designating the Union to represent him for collective bargaining, and conclude that the card should be counted toward majority status. Clifford W. Wilson had received the union leaflet and white card passed out on March 20, and understood from it that the white card was to join the Union in order to get more benefits in the plant. On or about April 8, William Holbert solicited him to sign the card to "join the Union," Wilson said he was agreeable, and authorized Holbert to get a card, fill it out, sign it for Wilson, and send it in. Holbert did so on April 8 and reported this to Wilson on the 9th. Wilson had talked about the blue card with Holbert just before giving the authority, and knew from reading the leaflet and from Holbert's remarks that he was thereby "signing up for" the Union for his own benefit, whether or not it got into the plant. He also knew that the card would be used to procure an election, that he could vote either way in the election, and join the Union either when he signed the card or later on; at another point he stated he was signing the card "to go ahead and join up if they won at that time." It is clear from this testimony that he knew the card would presently affiliate him with the Union for his benefit, regardless of an election. I conclude that this card should be counted toward majority status. After Winfred Hobgood, Jr., got the white card with leaflet, he had his wife read both to him, had her fill out and sign the card, and he mailed it to the Union on March 23. While he did not understand the big words on the card, he understood that the cards were "for better pay and to be under a union." Lumis McCormick had told him beforehand that the card would be used for an election, so he also under- stood it was "to have an election" in which he could vote as he pleased, and that if the Union won the election he could join it; he did not consider the card as forcing him to vote for the Union at anytime. He understood that if he signed the card "things would get better on the job if they won the election," "that the cards would be used to get a vote, and if the Union won, it would bring better things." This clearly indicated that he signed with the idea that the Union would act for him to get better wages and working conditions, though possibly after an election. I conclude the Hobgood card should be counted toward majority status. Robert T. Bailey received and read over the white card with leaflet on March 20. About the same time he was told by Lumis McCormick and others that he should sign it because they needed a certain percentage of employees signed to show that they "wanted a union," and if a majority wanted it, they would hold an election to see if it would come into the plant. He was told by his brother, a union mem- ber, that in such an election the employees had a chance to decide if they wanted a union or not, that they did not have to join but could if they wanted to. From all this he gathered that by signing the card he was joining the Union and accepting membership in it "if it was going to come in." After hearing these explanations, he filled out the card (except for the date), signed it, and mailed it to the Union some- time before April 11.34 While it appears that most of the information Bailey got about the card clearly emphasized that it would be used to get an election after enough workers had signed the cards, and he says he signed it largely to "go along" with the other workers who, as he was told, were also signing, and that he could vote as he pleased in the election, he also gathered from the card itself that he was in effect presently accepting membership in the Union, conditioned only upon its winning the election. On this basis, I conclude and find that the card is reliable evidence toward majority status. Sometime in March 1964, employee J. B. Drain, with whom Robert L. Pruitt rode to work, solicited him twice to sign a blue card, saying it was to get an election, and that about 70 percent of the workers had to sign cards before they could get an elec- tion. At first Pruitt refused to sign, but the second time said he would not sign but Drain could sign one for him and send it in if he wanted, it did not make any differ- 34 This witness contradicted himself seriously by saying on direct examination that he filled out, executed, and mailed the card entirely himself, and on cross-examination admitted he lied, saying he had his sister do it all for him. He also repudiated his earlier statement to the Board which is consistent with his direct testimony. I have decided that his direct testimony is more likely the truth, after having compared his admitted initials put on the back of the card at the request of a Board agent isith the written signature on the face, which comparison indicates that he probably signed the face The card has a date of April 5 written in pencil, which is not explained in any way, but I find from the Board date stamp on the back that it was received by the Board from the Union on April 11 (with the petition) so that the Union must have received it that day or earlier 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence to Pruitt. Pruitt did not see or read the blue card offered in evidence before it was filled out by someone , nor was it ever read to him. J. B. Drain was not called to testify about this, but the card is filled out and dated March 30, 1964, all in one handwriting, which appears far different from the rather crude initials which Pruitt put on the back of the card in July for a Board agent. On these facts I must conclude that Pruitt authorized the signature of a blue card on his behalf only on the repre- sentation that it would be used for an election, and find that it is not reliable evidence of majority status.35 Willie F. Drain received the white card with leaflet on March 20, but never read the document. Shortly after he heard some employees say that the cards should be signed to see if a majority of the employees wanted an election. He then had his wife fill out and sign the card for him and mail it to the Union on March 25.36 He testified that he had her send the card in to "find out what they had to offer, what there was about it, to get more information." He indicated steadfastly that he did not know that the card was an "authorization" for the Union to "represent him for purposes of collective bargaining," and does not know the meaning of the words in quotes; his understanding at the time was only that there would be an election, but he was "not obligated for nothing"; 37 at another point he stated his understanding of the card was "to see who wanted it and who did not, to find out if it was worth running an election for it or not, and to explain to some of the people what they would be getting, and what they would not be getting," he did not understand that he was thereby "lining up on one side or the other" ; the card was "to bring us in and let us know what would happen and what there was about it." On the basis of this uncontradicted testimony, I find that Drain sent the card in only to secure more infor- mation about the Union, and understood it would be used only to find out if there should be an election, and that by signing it he was not obligated in any way.38 I conclude that the Drain card cannot be counted as reliable evidence toward major- ity status. Hollis V. Bailey received the usual white card and leaflet at the gate, and had his wife fill it out for him and mail it in to the Union on March 28. He glanced at the card before she did this, but did not understand what it said because he reads only poorly. Before she filled it out, he heard from employees that there would be an election if enough employees signed cards and sent them in, and on that understand- ing he told his wife to send it in . There is no proof that he tried to, or could, read the leaflet that came with the card. I hereby admit the white card (General Coun- sel's Exhibit No. 39 ) in evidence as sufficiently authenticated , but I find that Bailey had the card sent in only because he understood it would be used for an election, and that it is therefore not reliable evidence toward majority status.39 I find from credible testimony of Jack H. Jones and Jesse Carver that Carver asked Jones to sign a blue card shortly before April 3, telling him that if enough employees signed the cards they would have an election, and that a certain number had to sign ae There is no proof that Pruitt talked to other workers or to O'Shea , or read the card or any union literature , which might warrant any inference that he might also have understood that he was joining the Union or making it his bargaining agent. Hence, the ruling in the Cumberland Shoe case, supra, Is Inapposite . The situation here is far more like that In Jas. H. Matthews & Co., 149 NLRB 161 (re the White card). "Drain could not remember the date this was done, and his wife did not testify, but the card is dated March 25, 1964, in the same handwriting as the remainder of the writ- ing on It which he said was his wife's. 87 He told these things to two different Board agents who took statements from him privately on July 5 and October 16 , 1963, but the agent preparing the first statement apparently did not put this down , but wrote the contrary of It, to the effect that he was authorizing the Union to represent him for collective bargaining . The second statement does, however , contain the gist of his testimony on this point. 80 In reaching these findings , I have also considered both statements given by Drain to Board agents, but have placed no reliance on the first, insofar as It tends to contradict his sworn testimony on the stand , for it Is clear that on this point It contains a statement directly opposite to what he told the agent at the time, and I am convinced he did not realize this when he signed that statement . However, he adopted much of the pertinent parts of the second sworn statement, consistent with his sworn testimony. 80 See footnote 35, above. General Counsel offered a second blue card (General Coun- sel's Exhibit No. 40 ) which Bailey admitted was apparently prepared by his wife, but denied he authorized her to send It in at any time. I reject the offer of this card. TREND MILLS, INC. 161 to get an election 40 He also advised him the card would be used only to get art election. Jones cannot read, so he took the card home to his wife who filled it out and signed it for him in his presence and at his request, but without reading it to him. He then took it back to Carver who signed it in the lower left corner, put the date April 3, 1963, on it, and sent it to the Union 41 I admit Jones' card (General Coun- sel's Exhibit No. 45) in evidence as sufficiently proved, but I find that Jones author- ized its execution and transmission on the representation that it would be used only to get an election, and conclude that it is not reliable evidence of majority status. Jas. H. Matthews & Co., supra. Business Agent O'Shea gave Eddie Stanley the usual white card in a leaflet on March 20, without saying anything to him about it. Stanley cannot read or write, so he took it home to his uncle, William Barnett, who read the whole document to, him and then, at his direction, filled out and signed the card for him, and Stanley then mailed it to the Union. In reading the leaflet to him, Barnett told him the card was "to vote to get a Union in there," and that he could vote any way he wanted; he did not state any other purpose for the card, such as joining the Union, but he did' tell Eddie that if the Union won the election, he could either join or not join the Union as he pleased. While his uncle told him the card "could be used for an elec- tion," he did not say that was the only purpose. Examination of the card (General Counsel's Exhibit No. 79) shows that Stanley cut it out of the white leaflet previously described, which clearly does not say anything about an election. Hence, although Stanley testified without contradiction to the remarks about an election by his uncle, I do not credit his further testimony that his uncle read them out of that leaflet, and can only infer that they were not prompted by anything in that paper. On the con- trary, it is inferrable that if Barnett read aloud all that was in the leaflet, Stanley could only have understood therefrom that signing of the card would help to get him the benefits which the Union described in it, and that this was one of the things which the card would enable the Union to get for him. This is not inconsistent with Bar- nett's remarks that the card "would be used for an election." Thus I find that, before Stanley had the card executed for him, he was apprised of both purposes for which the card would be usable, and as the first is in effect a designation of the Union to get benefits for him, I find that the card is reliable evidence of majority status. See Cumberland Shoe Company, supra. Jack B. (Benny) Stanley received a blue card from employee Loyad E. Carter at the plant sometime before April 1. At the time, Carter told him the employees had to sign them to get an election "in the Union," and that a certain number had to be signed for that purpose. Carter did not otherwise explain the card or state any other purpose of it. Before that, Stanley had attended a union meeting (apparently March 31) at which he heard the statements of O'Shea found above. Stanley took the card home, read it over, and then had his wife fill it out and sign it in his pres- ence on April 1. The next day he took it back to Carter. Stanley testified that from his reading of the card before his wife filled it out, he understood it to mean that "we would sign the cards, get them to represent us, to vote on it and let the Union come in, that we could vote either one way or the other." However, I am satisfied and find from the card and his whole testimony that he understood from the card wording alone that the Union would "represent" the workers for some undefined purpose, but that he also knew from the union announcements and remarks of Carter that they would also be used to get an election. Hence, on his understanding of the first purpose, I find that the card is reliable evidence of majority status. In summary, I find that eight cards in this group should be counted toward major- ity status, while four should not. B. Cards signed by employees Winfred Hobgood, Jr., was active in soliciting employees to sign blue cards, telling Dale Young, Anderson D, Chastain, and Barbara Joe Gravitt, among others, that the cards were being signed by employees to get an election, and that they should' "go along and sign" so that they all could have an election, that they needed about w Carver's testimony indicates that he was telling Jones, as he told other employees, the gist of what O'Shea had told him and others about the election purpose of the cards, and need for more, apparently at the meeting of March 31, as outlined above. a Carver did not testify about this, but the proven signature on his own card (Gen- eral Counsel's Exhibit No . 69) is apparently the same writing as his name on the Jones' card. 206-446-66-vol. 154-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 70 percent of the workers signed up to get the election, and that at the election they could vote either way they pleased. Hobgood did not state any other purpose for the card. Young testified that he read his card before he signed it and turned it in, but insisted that his understanding of the words then and now was that he was authorizing the Union to ask for an election, and to "represent us in an election." This appears credible in light of what Hobgood told him, hence I conclude that Young signed the card only for that limited purpose, and that it is not reliable evi- dence of majority status. Although Hobgood, Lumis McCormick, and William Smith solicited Chastain to sign a blue card and all told him the same story about its election purpose, he read and understood the wording on it before he signed and turned it in and understood therefrom that he was presently "joining the Union," whether or not it came into the plant with an election. In addition, McCormick or Smith told him the card was "for a union and to get a vote." Clearly, Chastain was made cognizant of two purposes for the card, one being acceptance of membership in the Union and designation of it as his bargaining agent. I find Chastain's card reliable evidence of majority status. In addition to the election purpose stated by Hobgood to Gravitt, he also told her that if she did not sign the card, and the Union won the election, she would lose her job. Gravitt refused to sign the card then, but took it with another blank card to the home of her friend, employee Alice Louise Bowling, on April 6 to discuss the mat- ter. Gravitt's brother, employee Clifford Ray, was also present. Gravitt told Bowling what Hobgood had said to her, including the fact that 70 percent of the workers had already signed, the Union was "coming in," and if the two did not sign they would lose their jobs. She also urged Bowling to sign because "they would get more money." Bowling read the card and at first refused to sign it, but after Gravitt's remarks about losing their jobs, and Ray's added comment that the Union would know from the signed cards who had signed for the Union and who had not, Bowling filled in and signed her card. Gravitt then did the same with hers.42 Although this evi- dence shows that one probable reason for Bowling's execution of the card was the possibility that they might get more money thereby, it appears that Gravitt and Bowling took very seriously the threat of loss of job stated by Hobgood, whom Grav- itt had known for some years, and that this threat of possible reprisal from the Union, which was enhanced by Ray's remarks about the Union's knowledge of who favored the Union and who did not, was well calculated to obliterate any other reason stated to the two girls as the inducement to sign the card. While there is no proof that the Union authorized or can be charged with this threat, nevertheless it was the most prominent factor in their signing of the cards and, by analogy with the Board's rulings that threatening and coercive remarks by an employer, or even inde- pendently by outsiders, may affect the employees' freedom of choice in an election and thus vitiate it, even though they thereafter have the protection of the secrecy of the voting booth, I must conclude that the clear threat of reprisal by the Union (which would be sure to know if they did not sign cards), initiated by Hobgood, an active employee solicitor for the Union, was enough to vitiate the signing of these cards, even though both girls read them before signing and may also have had some idea that they could be used to get better working conditions. Obviously, a clear threat of job loss is far more potent in coercive effect than a vague possibility of monetary benefit accruing from signing the card 43 I therefore find that the Gravitt and Bowling cards are not reliable evidence of majority status Leroy Jones signed a blue card on April 8, after reading it over and understanding from the words that it involved acceptance of membership in the Union. He signed only after repeated solicitations both at the plant and at home by various workers, who told him the card was merely for an election. On one occasion the union adherents told him that if he did not sign they would "take me up before the boys," 42 The talk at Bowling's house is based on credited testimony of both women. Ray did not testify on this point. 43 There is no proof that either woman had received or read the first white leaflet reciting union benefits. It is also significant that, although Ray (who had signed a white card March 25) testified that he read that leaflet and knew its contents, he did not recite them to Gravitt or Bowling in trying to induce them to sign up, but merely enhanced the coercion in Hobgood's threat, as relayed by Gravitt, by emphasizing that the Union would be well aware if they did not sign up. The overriding consideration must always be whether the employee was given an un- trammeled freedom of choice, and whether that was interfered with by employer, union, or some outside source. See N.L.R.B. v. Dadourian Export Corporation, 138 F. 2d 691, 892, 893 (C.A. 2). TREND MILLS, INC. 163 -which meant to him that they would "mob me." He still refused to sign, saying he wanted to do as he desired. Finally, after further solicitation at his home, he signed the card "so I could have a little peace" and on the understanding that it was intended to be used only to get an election without "signing my rights away." This uncon- tradicted and credible testimony indicates that he signed the card unwillingly, for a limited purpose, and in order to avoid further solicitation and threats to hale him "before the boys." I find that it not reliable evidence toward majority status, even though he was aware of the meaning of the words on the card.44 Respondent claims that at least 13 other cards signed by employees must be rejected because the signers did not or could not read or understand them, but relied only on the representation of other employee solicitors that they would be used only to secure an election. I find from credible testimony of Ray Bunch, Larry R. Brown, Marvin E. Jackson, Jerry A. Penney, Donald C. Skeen, Millard E. Weaver, Roy M. Tomlinson, Russell Edwards, Wm. N. Smith, and William Holbert, that each was told by the employee or agent who solicited him that the card was needed (or would be used) in order to get enough signed cards to hold an election, that the card would be held confidential, and that no other purpose or use of the card was stated or indicated to him. In addition, Brown had been solicited by workers four or five times, but always refused to sign; however, when Wyman Autry again solic- ited him with the above explanation, asking him to "go along with the other boys, to help them get an election," emphasizing the confidential nature of the card and the fact that Brown could still vote as he pleased in the election, Brown gave in and signed on April 8, both because of the last statements and to stop employees from pestering him further. Substantially the same representation was made to Jerry A. Penney by Agent O'Shea just before he signed his card 45 Since it is clear from the repeated and emphatic remarks of O'Shea to workers about the election pur- pose, and the arguments stemming from that purpose which he and employee solici- tors used to get them signed during the intensive drive for signatures at and after the second union meeting, all of which the solicitors passed on to unsigned employees at the plant thereafter, I am convinced and find that the above workers had impressed on them and were led clearly to understand that the cards were needed, and would be used, only to get an election and that they were not bound thereby in any manner, and that this purpose was impressed on their minds to the effective exclusion of any other purpose stated on the cards or expressed otherwise in union literature. Hence, I must reject these cards as reliable majority proof4e I also find from credible testimony of Wyman Autry, Mills H. Lemon, John Smith, Emmett J. Brown, and Warner Roden,47 that, while each of these witnesses at or " See case cited in previous footnote. 45 Penney testified vaguely and with much self-contradiction from a sickbed, long after the event, and as his recollection was obviously very hazy, due to his condition, counsel agreed that his two statements to the Board, dated July 18 and October 16, 1963, should be considered for all purposes, in connection with his sickbed testimony, to determine the truth. The July 16 statement merely shows he signed a card for O'Shea at a meeting. The October statement clearly sets forth statements by O'Shea indicating the election purpose like those found above, and indicates that they were probably made at the March 23-24 meeting In it Penney also denies any knowledge at the time that the Union was being made his "representative" Penney's personal testimony in large part jibes with the latter statement, hence I have concluded that the only representations made to him were those found above, and that although be says in his October statement that he read the card before signing, he did not gather from its wording any other pur- poses than that stated by O'Shea. 161 consider the ruling in Cumberland Shoe Company, supra, inapposite on the facts, mainly because of the intensive and narrow thrust of the Union's arguments and efforts toward an election. 4'i Brown could not read well enough to understand the "big words" on the white card, but got the meaning when his wife read it to him, as well as the leaflet He re- ceived no information from any other source. Roden signed and mailed in a white card about March 20, after reading both card and leaflet. It was apparently lost, and when employee solicitors told him his name was not listed at the union hall as a signer, he signed a blue card for Lumis McCormick about April 1, after McCormick had emphasized the great need for it to get an election. However, I must assume he knew, as he testified, that the first card would authorize the Union to represent him presently, at least to get an election, and that the same purpose was in mind when he signed the substitute blue card which is in evidence, for he thought that the blue card had the same wording as the white. Hence, I conclude he clearly understood that the latter would authorize the Union to represent him generally if it won the election 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before signing cards heard the representations from solicitors for the Union which have been found in the preceding paragraph, they were also told at the same time some of the benefits which the Union might get them in the plant, or that signing of the card would enable the Union to help workers get such benefits, or that the card would appoint the Union to act for the employees in the plant if it won the election. Hence cards of these witnesses should be counted toward majority status. I also find that cards of the following employees should be counted because their credible testimony indicates that all of them read the card and understood its wording and meaning, as well as wording of the white leaflet issued with the white cards, or other literature, although most of them were told and had impressed on them in one form or another, and understood, the election purpose in substantially the terms stated by O'Shea and his employee solicitors as found above: Clifford Ray, Newton F. Rogers, Jr., Jesse Carver, James E. Shelley, Winfred Tomlinson, Jr., Jerry W. Carter, Jerry M. McClure, Ronald K. Nix, William H. Barnes, Edward E. Chastain, Eugene T. Autry, James L. Causby, Robert F. Payne, Lumis B. McCormick, and Charles F. Keown48 3. Conclusion on majority status and the refusal-to-bargain issue Summarizing the above analyses, I find that prior to April 11, 1963, the Union received only 30 cards which were executed or authorized under circumstances indi- cating they were reliable evidence of majority status,49 and as this falls far below 48 Testimony of Autry, Causby, Payne, and McCormick indicates that their understand- ing from these sources was that they were presently selecting the Union as their repre- sentative to function as such if it won the election. I consider this a present designation, subject to cancellation upon a condition subsequent; ie., loss of the election. Substan- tially the same conclusion can be drawn as to the understanding of Loyad E. Carter, C. W. Wilson, Hobgood, R. T. Bailey, Roden, E. J. Brown, John Smith, W. Autry, and Lemons, whose card signings have been analyzed above. Keown read only the white card, but is not sure about the leaflet. He says he turned in the card to "learn more about it, and if I still liked it and if it was as good as they said it was, I was going to go ahead and vote for it" ; before he signed, workers solicited him almost daily, stating only the election purpose as outlined above. However, from all his testimony I conclude that he was in effect appointing the Union as his representative, but subject to cancellation of the authority after be learned whether the Union would get him all the things it promised ; I think he must have learned these union representations from the white leaflet. +e Throughout the hearing General Counsel argued that, in view of the coercion to which employees were subjected by Respondent, the Board should apply the strict rule of parole evidence to each card, deciding its validity only on the fact of signing. This argument is without merit for several reasons. At the outset, the unfair labor practices of Re- spondent occurred after employees had signed or authorized execution of cards and the Union had completed its solicitation, and I find no theory by which later coercion can be extended backward so as to rule out all testimony as to what outside influences from parties other than Respondent created the understanding on which employees executed cards. Second , this argument cannot, of course, apply to cards which certain employees lever saw, signed, or which were sent in without their knowledge or authorization. Third, under the principles stated in Englewood Lumber Company, 130 NLRB 394, and Cameo Lingerie, Inc., 148 NLRB 535, all the circumstances of the signings must be con- sidered to determine not only what was said to employees, but also whether there was in fact contemporaneous coercion or duress exerted by parties other than Respondent. In fact, the salutary need for careful examination of all circumstances of the signing of cards is demonstrated in this case by O'Shea's admission that the Union as a matter of policy never relies on procurement of a mere 51 percent of signed cards in a unit before seeking an election, but always procures from 65 to 70 percent, because it recognizes the ever-present possibility of forged cards, some not signed under actual authorization, and that in other instances signers may change their minds after signing. The instances of cards signed without authorization, the use of one after it had been repudiated, and procurement of others by coercive remarks, as found herein, show that the union policy was realistic. Nor can General Counsel's argument be supported by the fact that many witnesses called by him had refused to honor subpenas , but retained special counsel to fight en- forcement proceedings by the Board in the U.S district court. The fact that they took these steps but were unsuccessful and finally testified under order of that court does not automatically make them hostile witnesses or serve to affect their credibility. Quo Enterprises, Inc., 140 NLRB 1001, 1003. TREND MILLS, INC. 165 the 49 minimum required, I find that the Union did not represent a majority of .employees in the appropriate unit aforesaid on or prior to April 11, 1963. Lacking -such status before April 11, and in the absence of proof that Respondent's unfair labor practices found above began, or could have had any effect on that status, before April 11, when the Union ended its solicitation campaign with the petition for an -election, I am unable to conclude that those unfair labor practices can be considered on any theory as evidence of a bad-faith doubt of a majority status (which did not exist) or of an attempt to undermine any status of the Union, within the principle of Joy Silk Mills, supra.50 Hence, Respondent was not required to bargain with the Union on and after April 11, 1963, in response to its demand of April 10. I there- fore grant Respondent's motion to dismiss the amended complaint insofar as it -charges Respondent with an unlawful failure and refusal to bargain 51 C. The alleged interference with Board process Late in September 1963, General Counsel subpenaed numerous employees of Respondent to testify at the initial hearing of this case at Rome on October 8. Shortly after getting their subpenas by mail, many of the employees brought their subpenas, with an accompanying letter from counsel for General Counsel,52 to Wooten and Tolbert, asking what they were, what they should do with them, and whether they had to appear at the hearing in response to the subpena or appear at the union hall as requested in the letter. Most of these employees indicated plainly that they did not know anything about court, and did not want to appear because they would lose time from work. Some said that they did not want to come to court to be ques- tioned about the union card, because they felt the cards they signed were confiden- tial, that no one was supposed to see them. A few indicated reluctance to appear because of personal reasons, such as medical treatment. When William N. Smith asked Wooten if he had to go to court, and if the paper was legal, Wooten said he did not think so, but "if it was a court order, you would have to go." Smith replied that if he did not have to go, he would not. When employees asked Tolbert about it at first, most of them asked what "they" would do to them, or what would happen to them, if they did not go to court. Tolbert read the subpena shown him by the first few employees and told them that, as far as he could see, there was no penalty stated on it for not going to court, and he did not think there would be any penalty if the worker did not appear,53 but it was apparently a legal subpena from the Board, and the worker could go or not, as he or she decided Referring to the letter, Tolbert said he did not think the worker had to comply with the letter, that nothing could be done to him if he did not. When other workers continued to ask Wooten ques- tions about the subpenas, he asked Tolbert what he should tell them. Tolbert called Respondent's counsel who advised him that under the Act, when persons did not honor subpenas, the Board could procure an order of the Federal court directing 50 See N L.R B. v Harold W. Koehler, et al , Partners, d/b/a Koehler's Wholesale Restaurant Supply, 328 F. 2d 777 (C.A. 7), and cf Flomatic Corporation, 147 NLRB 1304. In this connection , there is a signicant lack of substantial proof that Respond- ent took any unlawful specific retaliatory steps, such as discharge or other actual dis- crimination , against any employees whose union affiliation or sentiments it had procured by its interrogations and promises Neither General Counsel nor the Union have cited any cases which would indicate that subsequent unfair labor practices of the type found above by an employer are sufficient to deny its defense of a good-faith doubt of majority status to a refusal-to-bargain claim, or to establish a majority status for the Union which never existed beforehand. "This conclusion makes it unnecessary to analyze the circumstances surrounding Respondent's letters of April 16 and 24, and its later conduct , for purposes of determin- ing the validity of Respondent 's claim of bona fide doubt of majority status. See cases In preceding footnote. ea The letter , after referring to the enclosed subpena and requesting attendance of the employee a half-hour early on October 8, also requested the employee to meet with counsel for General Counsel on the 7th at the union hall in Rome "in order to review with you in advance the testimony which you will give at the hearing " 0 Tolbert was correct in his appraisal of the subpena , because the yellow subpena issued by the Board contains no statement of any violation of law or penalty for not obeying its direction . The only intimation of that lies in the single word at the top "Subpena" which, while it is a modern contraction of the earlier Latin form "subpoena ," which means "under penalty," does not convey the idea of any penalty or punishment to the ordinary reader; nor did the form letter sent with the subpena by counsel for General Counsel indicate that consequence in any way. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their appearance , which could be served on them by a U.S. marshal , and if they did' not appear in response to the order , they could be fined or sent to jail . The attorney said that probably, as a practical matter, the Board might have subpenas served by a U.S. marshal , and not go to the extent of getting a court order .54 Tolbert told this procedure to Wooten, and also in substance to the workers who queried him about it thereafter, telling them that they had to decide personally whether to go, and, if they did, they need only tell him and Respondent would let them off from work. When some employees did not appear at the hearing of October 8, and Gen- eral Counsel charged in the presence of Tolbert that there had been interference with Board process by Respondent , Tolbert prepared a notice that afternoon which he read to employees at the 4 p.m . change of shifts, and also posted over his name on the plant bulletin board. The notice read: We are still getting questions from employees about the Labor Board hearing that is being held and whether employees who have received subpoenas have to go and testify. We want to make our position clear. Whether an employee goes to the Labor Board hearing or not is his own decision . We have not told anyone to go. We have not told anyone not to go. What you do is up to you . I want to say that the Company does not object and holds nothing against any employee who does go to the hearing and testifies. I also want to say that the subpoenas you have received from the Labor Board are lawful and the Labor Board can obtain a court order requiring you to go to the hearing and testify.55 When Loyad E. Carter asked Wooten on October 7 if an employee had to appear under the subpena if he did not want to, Wooten replied that he did not have to go if he did not want to, but if he did the Company would let him go, that the decision was up to him. When Carter asked what would happen if he did not go, Wooten said that a "court order " might be served on him, and he would have to go, and if he did not, a deputy marshal would lock him up . The morning of the 8th , Carter told Wooten he had to go to the hearing that day. Wooten asked if he had a "court order." Carter said it was. Wooten replied that then he had to appear Later in the day, Carter told Wooten it was not a court order, and Wooten then said it was up to him to decide what he wanted to do, he was not going to tell him what to do, but if he wanted to go to the hearing, he would be given time off from work to go. Carter then asked for time off, got it, and went to the hearing.56 Wooten also told some workers in Carter's hearing that they were not required to appear at the union hall in response to the letter from General Counsel.57 On the afternoon of October 9, before the start of the second shift, Tolbert saw second-shift worker Dale Young talking to first-shift employees at work, causing them to stop work while he talked. At this time, one worker reported to Tolbert that Young was telling workers they would be fined several hundred dollars if they did not appear at the hearing. As Young was about to start work, Tolbert asked him if he had been going around trying to get workers to go to the hearing. Young cs It Is apparent from various colloquys between counsel about the subpenas at the hearing, that Respondent's counsel was speaking from personal experience as a former member of the staff of the General Counsel of the Board and from extensive experience In trial work in cases under the Act. 55 The above findings are based on credible and mutually corroborative testimony of Tolbert and Wooten, and documentary evidence, as corroborated In substantial part by admissions of Gravitt, Bowling, and William N. Smith Testimony of other employee witnesses In conflict therewith is not credited. sa Carter lied about having a court order, explaining In testimony that he used this as an "excuse" to get permission to attend the hearing This is not credible in face of Wooten's remarks the day before which plainly indicated that such permission would be given if requested There is a strong suspicion that the second talk with Wooten was deliberately staged by Carter for an ulterior motive, for be says he went back to check with Wooten after hearing other workers say that both supervisors had told them the same thing Wooten told Carter on the 7th, and after conferring with counsel for Gen- eral Counsel and Business Agent O'Shea the night of the 7th about his talk with Wooten that day Carter actually testified on the 9th s7 These facts are found from credited testimony of Wooten, corroborated in part by admissions of Carter. In view of Carter's vacillation In his testimony on this point, I do not credit any of his testimony at variance with the findings. TREND MILLS, INC. 167 denied it. Tolbert told him this was not Young's concern, whether they went to the hearing, that he should leave them alone and not bother them while at work, that it was none of his business whether they went to court or not, and that if workers did not want to go the hearing of their "own free will," that was their business, not his. Immediately after this incident, and after consultation with Respondent's attorney, Tolbert read to the assembled employees and also posted on the bulletin board a notice stating: The Labor Board hearing is still going on. We have heard it said that some employees are afraid that if they go to the hearing and testify they will be dis- charged or mistreated by the Company. This is not true. Any employee who desires to go to the hearing to testify is free to do so. I want to assure you that no employee will be discharged or mistreated in any way for going to the hearing and testifying. If any employee wants to go to the hearing and testify, he should notify his supervisor and the Company will make arrangements to let him off and to pro- vide transportation if needed.58 The record shows that workers had long been accustomed to seek out supervisors, particularly Tolbert, for advice on personal and other problems, and that he always freely gave them the best advice he could. I find that workers voluntarily approached Tolbert and Wooten in like manner for advice about the subpenas served on them by mail, and that when employees indicated their reluctance to appear in court for various reasons, Tolbert indicated truthfully that the subpenas on their face did not carry any penalty for failure to appear, hence in his opinion nothing would happen to them at that time if they did not appear, but that thereafter court proceedings could be taken to enforce their appearance, and that the decision about honoring the subpena was their own decision, and the Company would give them time off if they decided to go to the hearing. I find nothing in this advice which tended to encourage employees to disobey the subpenas, or which interfered with Board process in any other manner.59 Nor do I find any violation of the Act in Tolbert's warning to Young to stop trying on company time to induce workers to attend the pending hear- ing. It is clear that such conduct interfered with employees while at work, and Tolbert had a right to prevent any interference with their work by others during working time. I therefore grant Respondent's motion to dismiss the amended com- plaint insofar as it charges Respondent with illegal conduct in the opinions and advice it stated to employees about the subpenas and their enforcement and shall recommend that the complaint be dismissed in that respect. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violating Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the limited nature of the unfair labor practices found herein, I shall recom- mend only that Respondent be ordered to cease and desist from any like or related conduct. 18 These facts are found on clear, credible testimony of Tolbert, as corroborated in part by testimony of Young. I do not credit Young's testimony at variance therewith, be- cause of his vague and vacillating testimony on the talk , It is notable that in response to one question of the Union's counsel, Young said his impression of Tolbert's remarks was that he was accusing him of trying to prevent employees from attending the hearing 59 If such encouragement could be implied on any theory, the implication was promptly canceled by Respondent's oral and printed announcements of the 8th and 9th which made it clear that it was standing neutral, leaving the employees to decide whether to attend the hearing, and offering time off and transportation if they obeyed the subpenas Considering all the facts in context, Respondent's conduct falls far short of the type of employer conduct found illegal by the Board in Certain-Teed Products Corporation, 147 NLRB 1517. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of See- lion 2(2), (6), and (7) of the Act, and the Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interrogating employees regarding their union sentiments, promising and granting them benefits and suggesting direct negotiation of grievances with Respond- ent, and actual settlement of such grievances with employees, to dissuade them from choice of or adherence to said Union as their bargaining agent, and suggesting that they express antiunion views to other employees, thereby interfering with, restrain- ing, and coercing employees in the exercise of rights guaranteed to them by Section 7 •of the Act, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and 2(6) and (7) of the Act. 3. All production and maintenance employees at Respondent's Plainville, Georgia, plant, including the tufting machine fixer, serger fixers, plant clerical employees, ship- ping department employees, and the local truckdriver, but excluding over-the-road truckdrivers, office clerical employees, professional employees, guards, Byron Reeves, Pat Tortosa, John L. Wooten, Ralph White, the dispatcher, plant manager, and all other supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union was not at any time mentioned in the amended complaint the freely chosen collective-bargaining representative of a majority of Respondent's employees in the above unit, and was not the exclusive representative of employees in such unit within the meaning of Section 9(a) of the Act. 5. Respondent has not at any time mentioned in the amended complaint failed or refused to bargain with said Union in violation of the Act, or engaged in any coercive conduct toward its employees except as found above. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Trend Mills, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from interrogating employees regarding their union senti- ments, promising and granting them benefits and suggesting direct negotiations of grievances with Respondent, and actual settlement of such grievances with employ- ees, to dissuade them from choice of or adherence to said Union as their bargaining agent, or suggesting that they express antiunion views to other employees, or in any like or related manner interfering with, restraining, or coercing their employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Post at its Plainville, Georgia, plant, copies of the attached notice marked "Appendix." 60 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by its authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith.61 w In the event that this Recommended Order is 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. In the further event that the Board's Order be en- forced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 81 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 10, in writing, within 10 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith." INT'L BROTHERHOOD ELECTRICAL WORKERS, LOCAL 903 169" It is further recommended that the amended complaint be dismissed insofar as it charges Respondent with an unlawful refusal to bargain or with any coercive con- duct other than that found in this Decision. 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 Rela - tions Act, as amended , we hereby notify you that: WE WILL NOT interrogate our employees regarding their union sentiments,. promise or grant them benefits, or suggest direct negotiation of grievances with us, or make actual settlement of grievances with them, in order to dissuade them from the choice of or adherence to Textile Workers Union of America, AFL-CIO-CLC, or any other labor organization of our employees , as their collective-bargaining agent, or suggest that they express antiunion views to other employees , or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above Union or any other labor organization. TREND MILLS, 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, 528 Peach- tree-Seventh Building, 50 Seventh Street, NE., Atlanta, Georgia, Telephone No. 876 3311 , Extension 5357, if they have any questions concerning this notice or compli - ance with its provisions. International Brotherhood of Electrical Workers, Local Union No. 903 and Gulf Coast Building and Construction Trades Council and Pass Development, Inc. Cases Nos. 15-CC-235 and 15-CP-38. August 2,1965 DECISION AND ORDER On June 1, 1965, Trial Examiner George J. Bott issued his Decision. in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. There- after, the General Counsel filed exceptions to the Decision and a sup- porting brief. 154 NLRB No. 10.