Liz of Rutland, Inc.

LIZ OF RUTLAND, INC. 121 10. By assisting Boy's, as its agent, illegally to encourage Boy's employees to join and assist the Joint Board and to refrain from assisting and joining Local 770, the Council has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 11. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Liz of Rutland, Inc. and Upstate New York & Vermont District Council, International Ladies' Garment Workers Union, AFL- CIO. Case No. 1-CA-4907. December 17,1965 DECISION AND ORDER On September 15, 1965, Trial Examiner Thomas A. Ricci issued his Decision in the above -entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent and the Charging Party filed excep- tions to the Trial Examiner's Decision , and the Respondent filed a brief in support thereof. The General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in connection with this case to a three -member panel [Members Fanning, Brown , and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs , and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 The Trial Examiner found that in preemployment interviews with prospective em- ployees in July 1964 , the Respondent stated that he was going to open a nonunion plant and asked prospective employees if they had any objection to working in a nonunion plant. The Trial Examiner found that Respondent had thereby conditioned employment upon the employees' agreement not to seek representation through a union and had violated Section 8(a) (1) of the Act. We do not adopt such finding inasmuch as the conduct occurred more than 6 months prior to the filing of the charge on March 1, 1965, and is therefore barred from consideration as an unfair labor practice by Section 10(b) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A hearing in the above-entitled proceeding was held before Trial Examiner Thomas A. Ricci from May 24 through June 3, 1965, at Rutland, Vermont, on com- 156 NLRB No. 12. 122. DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint issued by the -General Counsel against Liz of Rutland, Inc., herein called the Respondent or the Company. The issues litigated are whether the Respondent vio- lated Section 8(a)(1) and (5) of the Act. Briefs were filed by all the parties after the close of the hearing. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Liz of Rutland, Inc., a corporation existing under the laws of the State of Vermont, maintains a manufacturing plant in the city of Rutland in that State, where it is engaged in the manufacture, sale, and distribution of women's dresses and related products. In the normal course of its business the Respondent causes large quantities of raw materials used in its manufacturing process to be purchased and transported in interstate commerce from other States of the United States into the State of Ver- mont, and substantial quantities of dresses sold and transported to States other than Vermont. During the period October 1, 1964, to February 28, 1965, the Respondent shipped goods valued in excess of $50,000 directly from its Rutland, Vermont, plant to points outside that State. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Upstate New York & Vermont District Council, International Ladies' Garment Workers Union, AFL-CIO, herein called the Union, is a labor organization as defined in Section 2(5) of the Act. . III. THE UNFAIR LABOR PRACTICES The Issue and the Setting In October 1964, the Respondent, for many years in business in New York City, opened a factory in Rutland for production of ladies' garments. Before its arrival in town there had been another company-called Rosenblatt-doing the same kind of work in the building which the Respondent rented, and with the very machines which it leased. Rosenblatt had given work to the townspeople for over 25 years, and for a long time had recognized and contracted with the International Ladies' Garment Workers Union. In November 1963 it discontinued operations entirely and 279 persons were left without work; that company had used as many as 350 persons at times. By the time the Respondent arrived at least 250 were still idle, many of them- perhaps 150-continuing to draw supplemental severance or unemployment benefits from the Union's welfare fund. The Respondent drew virtually its entire employee complement from this unemployed pool. By February 1965, employment had risen to over 80 persons, and a majority had signed authorization cards in favor of the Union. There was a demand for recogni- tion and bargaining; the Respondent rejected it. On March 17, the Union called a strike, still current at the time of the hearing in June. The heart allegation of the complaint is that the Respondent failed to bargain in good faith, and that its total behavior toward the Union and toward the employees reveals rejection of the statutory principle of collective bargaining, all in violation of Section 8(a) (5) of the Act. As will appear below, the Company's attitude toward the .Union at the time of the events was equivocal. Long after, at the hearing, its counsel advanced a number of defenses to explain why the Respondent refused to bargain: that the demand was premature because of an expanding unit, that the Respondent had a good-faith doubt as to the Union's majority status, and that, in any event, the Union never in fact had been authorized to bargain by a majority of the employees. Interference, Restraint, and Coercion About 60 employees-all ladies-testified concerning the authorization cards and about statements by management representatives. Despite their clear authorization of the Union, as revealed by card after card which almost each of them, in her own handwriting, had completed in great detail and which speak without equivocation, a considerable number of these ladies manifested outright hostility toward the Union. There is presented a direct question of credibility between one group of employees on the one hand, essentially those who later struck in support of the Union's bargain- ing demand, and the others who never left their jobs. This is a recurring problem in those situations where (1) an organizational drive produces prima facie written LIZ OF RUTLAND, INC. 123 authorization for the Union to bargain, (2) the employer rejects a demand for recog- nition and negotiations, (3) company officials engage in activities aimed at convincing employees to the view that collective bargaining is not desirable, (4) a strike ensues, and (5), after the events, the employees affected appear to tell their stories. To what extent is the employer's coercive conduct-if coercive it was-responsible for the employees' rejection of their previously clearly written signed authorization state- ments, or for their hostility toward employees testifying in support of the complaint? To what extent does the fact of the strike itself, with its attendant friction and ani- mosity between striker and nonstriker, cast a cloud on later testimony by both groups, those who attempt to prove the allegations of the complaint as well as those against? It is in the nature of the judicial process that resolution of credibility between con- tending witnesses at best falls short of absolute certainty. There is no question, how- ever, that one group of these witnessses-perhaps as many as 20-gave false testi- mony, for the divergence in recollections, and the necessarily dramatic import of one of the principal incidents, are such that the disagreements cannot be attributed to faulty memories or variations in phrasing. Between the two groups stands the testimony of Company President Leo Nussbaum, apparently the substantive owner of the business and the principal actor for the Respondent. He was called as a witness at the start of the long hearing and his story, necessarily binding upon Respondent, sheds a significant light upon virtually every question to be decided, large and small. A critical issue, if not the most central credibility issue, in the case is whether or not, immediately upon receipt of the Union's letter demanding recognition, Nussbaum told the assembled employees that he could leave Rutland as fast as he had come if he had to deal with a union, and then openly polled the employees in the plant to find out whether they were willing to continue "on a nonunion basis." Seven employees, their recollections varying in insubstantial phrasing, testified that he did this, and that he literally called for an open vote by a raising of hands so that he could know what their decision was. Three others testified they did not hear Nussbaum speak thusly, or that he did not state an intention to leave Rutland at all; these also could not recall his having asked them how they felt about the matter. Taken in its entirety, their testimony instead was to the effect that what expressions of opinion were voiced by the employees, what raising of hands took place, was a spontaneous outburst of loyalty to Nussbaum, unsolicited by him. The question must be decided in major part against the background of the economic picture in which the employees found themselves when Nussbaum came to Rutland and of what he said to them before opening the plant. The following is Nussbaum's own story. Aware that there was this considerable group of unemployed dress-shop workers readily available in Rutland, Nussbaum went there in July 1964, and spoke to a Mr. Quinn of the local United States Employment Service, where the women were registered in their search for work. At Nussbaum's request, and with the cooperation of a company which owned both the building where Rosenblatt had run its shop as well as the machines still in location there, the USES office called the women in for interviews with the prospective new employer in groups of six or more. On a single day Nussbaum spoke to about 75 of them. To all he explained how he had for over 30 years been in this business in New York, what type of garments he manufactured, the kind of machines that were used, and the fact that ". . . we were non- union in New York. We had been non-union for quite some time, and we intended opening a factory in New York, in Rutland, on a non-union basis, and I wanted to know if there was any objection to them working for a non-union, under non-union conditions. No one that I did speak to seemed to object. The important thing for them was there was a possibility of a firm opening in Rutland." Fortified with this assurance by the employees, Nussbaum proceeded with plans to move into the old Rosenblatt location for his own operations. On October 14 he placed a notice in the local newspaper inviting "employees who worked for Rosenblatt" to a meeting in the "Rosenblatt building" the next day. At least 250 women came, and Nussbaum explained anew the type of operation he planned and his hope that, with their help, he could flourish in Rutland, bring more and more work, and hire an ever-increasing number of the ladies. Again he took pains to remind them that "We were non-union and we were opening in Rutland also on a non-union basis," and that he wanted to continue that way. That same day he signed a lease for space and entered into a purchase agreement for the machinery. Operations began on October 27. As will appear in detail below, by February 4, 1965, 45 employees had signed union authorization cards in favor of the ILGWU; 32 signed on the evenin o e ruary 3 at a special meeting of the Union. Nussbaum knew of these activities. A demand letter was received at the Respondent's Rutland office by February 8 and Nussbaum responded by agreeing to meet with union representatives on the evening of Febru- 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary 10 at a Rutland hotel. He arrived in town early that day and about 3:30 p.m. shut off the machine power, agreed to pay the employees for the half hour thus lost from scheduled work, and called them together in the plant to listen to him. As to what he said at this meeting, the most important event detailed in the total record, Nussbaum's testimony was evasive and inconsistent . For its real import, it must be appraised in its totality, a revealing phrase here and a significant admission there. More than once he denied flatly having asked the employees to express their sentiments concerning the Union, or having said, in so many words, that he would leave Rutland rather than run a "union" business. Nussbaum said he started by reading the Union's letter claiming majority repre- sentation and demanding recognition. Beyond this he said nothing clearly, but tried indirectly to create the impression that, led by Veronica Boudreau, the first employee to speak out, the group spontaneously and enthusiastically raised their hands to express confidence in him, loyalty to his hopes, and a desire to continue working as in the past. He also admitted, on pressing examination by the General Counsel, that early in his remarks he told the employees he knew what their "feeling" about the Union was, that his "mind was made up" as to what he was going to say to Karesky, the union organizer, that evening . Had he told the employees he was "determined to operate nonunion?" Nussbaum answered • "That was determined from the inception." He also admitted having said, "I have always had the feeling that you were satisfied with me." On exactly how the employees conveyed their thoughts to him, on whether they had spoken out clearly, or raised their hands, he said: "It isn't that there was just words, that there was a yes. You can get a feeling, people can nod their heads and you can get a feeling .... I don't remember if the words they used were yes or it was nodding their heads, or just a smile or a beam of the face is sufficient for me too." As Nussbaum continued to answer probing questions , his first statement that it was Boudreau who initially provoked the employees into indicating their rejection of the Union, began to change. . I explained to them again how I felt as far as my relationship with them, and I had the feeling for the fact that I knew that they were in agreement with me. They were content, satisfied with the way the operation was working on that non-union basis. I felt that the majority were with me. It was at that point that, I didn't know her name at that time, but I found out since, one of the stitchers by the name of Veronica Boudreau said, `I'm not afraid.' " Quite later in his testimony Nussbaum repeated that it was only after he had told the employees he had "a feeling" they were with him , that Boudreau spoke up. In the end , asked again whether he had put any question at all to the employees during the meeting, Nussbaum said he had asked them : "If they were satisfied with the operation as we had gone up to that particular point." Had words of "loyalty," or protestations such as "We want to work," come with no interrogation by Nussbaum, there would have been no occasion for him to ask any question at all. It follows on his own admission , therefore , that whatever senti- ment was then expressed by the employees reflected their reaction to what he had told them. It is clear on the record as a whole that before the employees were dismissed, virtually all had raised their hands in response to his interrogation ; even Margaret Buggiani and Elizabeth Burke, who had been union secretary and shop chairlady, respectively, with Rosenblatt while the shop was "union" and who were foremost in soliciting authorization cards again among the employees, indicated they would remain "satisfied with the operation as we had gone up to this particular point." By this time Nussbaum's use of the phrase "operation as in the past," even assuming these were his words , had a single and very clear meaning; i.e., "nonunion ." In his original interviews with the ladies at the USES office in July , he had literally made "non-union conditions " a fact of life in any employment with him. Indeed , his total testimony at the hearing reveals a mind which conceives the matter of union or non- union conditions of employment in the same grouping of management prerogatives as dress styles, product price ranges, and cloth designs-all to be determined by the manufacturer in the regular course of business . He spoke of his operating "non- union" in the same vein with which he described his production methods, and asked the women were they willing to work for him thusly. Nonunion methods were as much a condition of employment with him as was the requisite skill and experience to operate his machines . He left no doubt in their minds that absent their agreement to accept employment on this basis , he had no intention of coming to Rutland at all. The ladies had long been out of work, and their unemployment benefits, from the State as well as from the ILGWU, were running out ; they said "yes" to him then. They reneged, and 4 months later Nussbaum was faced with precisely the "condition" which for years he had considered no part of his business . If the girls later quoted LIZ OF RUTLAND, INC. 125 him as having said, in February, that he could leave Rutland as fast as he had come unless they were willing to operate "as in the past," they only put those words in his mouth which in the natural course of events he was most likely to utter. There was more in Nussbaum's testimony which served to discredit him as a wit- ness. When speaking to the girls in the USES office in July, did he know they had worked for the Rosenblatt Company? "I did not-there was no way of me knowing that." Had he asked where they had worked before? "No." Did they tell him dur- ing the interview where they had worked Nussbaum answered. "That was unim- portant." Had he known the employees had been represented by the ILGW? "I would not know that. It was not told me." Why had he taken pains to ascertain whether they would work in a nonunion shop? "Because I was non-union." Q. Didn't you ask this question because you knew that they had worked ... in a union shop ... ? A. I don't know whether that was important or not. It was important for me to know that they were willing to work in a non-union shop. Whether they were union or not, it was unimportant. Q. But wasn't the reason you asked a question like this ... because you knew in them there were many in a union? A. I don't know whether I had it in my mind then. As a minimum Nussbaum was less than candid at the bearing. Nussbaum said he spoke to the ladies in the shop on February 10 between 15 and 30 minutes; he must have said much. Allowing for inevitable and natural vagaries in their recollections, I credit the substance of the following testimony by certain employees: Lucia Balestra: .. he took a vote by hand. And he told us that if the union come in, he would leave .... He asked us to raise our hands if we were with him about the union ... if the union was coming in, he was going to leave because he didn't want the union." Giacomina Balestra: "Mr. Nussbaum read a letter he received from the union stating that they had a majority . . . and that he didn't believe them. He thought the girls were behind him .... Then he asked that the girls that were behind him would they raise their hand .... That he could move out of Rutland as fast as he moved in." Stella Rocchi: ". . . he told us he did not want a union, that he would move out as fast as he came; ... he asked us to raise our hands, those who would work for him without the union." Aurore Herrick: "... he asked us, those that were willing to work without a union, to raise our hands ... he said he could leave as fast as he came in ... he would leave town as fast as he came in." Mary Mirti: ". . . he said, `You knew when you came to work here it was a non- union shop and you should be thankful to have a job. You have been out of work for a year and I can pull out as fast as I came in.' And after he got through making his speech, he said, `But I know the girls are going to stick by me, and those that are going to stay with me please raise your hand."' Gertrude Burke: . . he reminded us, rather of the fact that we had been unem- ployed for 10 and 11 months and that he had given us a job. He went on to tell us of the accomplishments that he had made since the plant had opened in October .... Then he made the statement that if the shop went union that he could move out of Rutland as fast as he moved in. Then he said there would be an election and he wouldn't mind this election being in the shop, and he asked for a hand vote of the employees that planned to be loyal to him." The contrary testimony of other employees who, denied Nussbaum polled them or threatened to leave Rutland cannot countervail against all of the foregoing. The most outspoken of these was Veronica Boudreau, who said flatly that as soon as Nussbaum had finished reading the Union's demand letter, she promptly called out "I'm not afraid. I want to work." As she would have it, a large number of girls immediately shouted out in chorus "We want to work," and only then did Nussbaum ask the rest, "Well, how do the rest of you girls feel" But if Boudreau is to be believed, there had been no talk of working or not working to give reason for her declaration, or for the like statements offered by any other lady. In fact, her words could only be explained as a response to the question Nussbaum admittedly asked, and that was whether the women were willing to work "as before." Moreover, the very fact of so many employees shouting out their desire to remain at work fits more plausively into the testimony of others that Nussbaum had just finished announcing, as a personal commentary upon the Union's demand for bargaining, that he could leave Rutland as fast as he had come. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that Nussbaum reminded the assembled employees that day of his intended methods of operation "on a nonunion basis," that he recalled to them their promise to work for him without union representation, that he threatened to close the shop and leave Rutland if they persisted in their prounion resolve, and that he asked them forth- with to decide between having any job at all or adhering to their decision to bargain collectively with him, all in violation of Section 8(a)( I) of the Act.' In view of the background of a long period of unemployment suffered by all these ladies, of this being the only real source of work for them at the time, and of Nussbaum's very recent demonstration to them that he would only start in business upon assurance that he would be free of any obligation to deal with a union, this was the most potent weapon of restraint and coercion that the Respondent could have wielded to achieve an objective clearly prohibited by the statute. Nussbaum's interviews with consecutive groups of employees in July, when he told them he had long been "nonunion" and intended to remain so, and asked each of them whether she was willing to work with that understanding, was virtually the exac- tion of a promise to refrain from union activity so long as the employee worked for him. This was no different from imposing an illegal condition of employment. The Respondent argues essentially that what Nussbaum really meant by "nonunion'; was that he paid substandard wages, that he could not afford to contribute 111/2 per- cent of the payroll to the ILGWU welfare and pension fund, which everybody knew that Union always includes in its collective-bargaining agreements. From an employer 38 years in this business and who admittedly was very familiar with union parlance and methods, and to these employees who had for over 20 years been covered by union contracts in their work, words like these are not without meaning. If Nuss- baum wanted to know whether the ladies would work for him for less than they had been paid by Rosenblatt, or whether they were willing to forego unemployment bene- fits from a union later in the event of discharge or economic layoff, all he had to do was ask them. He did not do so . No more may any employer who opposes collective bargaining out of fear that wages may mount, disclaim proof of direct union animus on the ground of economic necessity. I therefore find that by conditioning employ- ment upon a promise not to demand collective bargaining through a union, Nussbaum in each of his interviews with the employees in July 1964 restrained and coerced the employees in their right freely to engage in self-organizational activity and thereby violated Section 8(a) (1) of the Act. Demand and Refusal The greatest number of authorization cards were signed at an important union meeting on the evening of February 3, 1965. The next day District Manager Alec Karesky, Organizer Harold Dudman, and a third union official called at the plant to demand recognition; they left their card because no one in sufficient authority was there. By letter to the Respondent dated that same day the Union asserted majority authorization, claimed recognition, and requested an appointment for negotiations. Nussbaum answered by telephone and agreed to a meeting on the 10th. That evening, together with Mrs. Nussbaum, he had dinner in a Rutland hotel With Karesky and Dudman, where they talked. At the end of the meeting the parties scheduled another conference for New York City, where, on February 19, Nussbaum met with Karesky and higher officials of the ILGWU. Again there was considerable discussion and the parties separated with Nussbaum promising to let the union agents know where, in a few days, he would meet with them again. There was no other occasion for them to talk until March 18, the day after the strike started. Then, in the street in front of the plant, Nussbaum conferred with Union Representative Jack Albano and offered a deal: he would permit another dress company-called Foggarty, and which operated "on a union basis"-to move into the Rosenblatt Building which Nussbaum con- trolled, if the ILGWU would permit Liz of Rutland to remain "nonunion." 2 The complaint alleges that the Respondent "did refuse to bargain" with the Union within the meaning of Section 8(a) (5) of the Act. The answer admits the precise i Blue Flash Express, Inc., 109 NLRB 591. 2 The parties met again once or twice in the months following the strike , but these meetings may have been brought about by matters unrelated to the issues presented in this case, and all parties, including the General Counsel, stipulated that nothing that may have been said or done at the later meetings either supports or detracts from the merits of the complaint, and should therefore not be considered in reaching decision here. LIZ OF RUTLAND, INC. 127 allegation that it "refused to bargain," and states affirmatively that it "refused to bar- gain because of a good-faith doubt that the Union represented a majority of the employees." 3 If the things that were said by both Nussbaum and the union agents at the meetings of February 10 and 19, conversations evidenced by the recollection of Nussbaum himself, were to be considered without regard to (1) the positive assertion set out in the answer itself that the Respondent refused to bargain, and (2) Nussbaum's insistence at the hearing that he never meant a thing he said and was only stalling for time to defeat strike action when it came, it would be difficult to avoid a finding that the parties in fact did bargain and only failed to sign a contract because the Respondent refused to yield to certain of the Union's economic demands. Nussbaum met with the union representatives whenever requested to do so; in each instance he discussed the terms of whatever contract they wanted him to sign. He asked what benefits would flow to him if he signed, would the Union agree to permit him to pay the established Vermont or upstate wages instead of the higher New York City rates, was it possible for the ILGWU to waive the health and welfare contribution which all other employers paid into the Union's fund? The union men explained they could show him how to improve the efficiency of his production operations; they indicated the Vermont rates might very well be acceptable to the Union; they held firm to the 111/2 percent of payroll health and welfare payments. Once or twice, quite passingly, Nussbaum threw in the thought that his employees did not really want the Union. Dudman scoffed at the idea and said this was because Nussbaum had personally polled them at his own private party, and that if such a meeting were called by the Union for a hand-raising demonstration, they would vote in its favor. Nussbaum agreed this was probably true. At no time did Nussbaum even claim that the employees had signed authorization cards in payment of bribes or because of a material misrepre- sentation as to what the cards meant, factual assertions which much later at the hear- ing formed the principal grounds for the defense of his admitted "refusal to bargain." The record as a whole permits no doubt that at the time of his conferences with the Union, when, as he now insists, he was only acting to cover an ulterior motive, Nussbaum very well knew, or at least did not seriously doubt, that a majority of his girls had signed conventional authorization cards. Whether or not they had signed was simply a matter of no moment to him. He may have felt he had succeeded in weaning them back again to be "loyal" to him, but this was in consequence of his threat to close the plant and could hardly be turned into evidence of honest or real doubt as to signed authorization cards in the Union's hands.4 I must accept Nussbaum's repeated statements that he met and met again with the Union's agents only because he was vulnerable at the beginning to economic pressure in his New York operations. "I needed a little bit of time for myself. As I say, we had, we were operating in New York, and I know it would have been a simple thing for them to stop me in Rutland and stop in New York and cripple my production. I felt as important. I needed time on my side to get to the point where I can have my entire operation here in Rutland, and I want to get a cutting room set up." "I was buying time. It was very important that I buy time." Nussbaum was asked was it true Karesky had offered the cards for a check. "I don't know, but if he did, I would have refused to look at them." With the record thus showing obvious inconsistency between Nussbaum's ostensible negotiations with the Union in February and his position at the hearing that he always honestly doubted the Union's majority status, his lawyer asked him toward the very end of the trial to state once again why he met with the Union at all if he did not believe it spoke for the employ- ees. His answer was: "Yes, sir, that I didn't feel that he did represent the majority of the people." Whether the false front which Nussbaum admits he simulated toward the Union represented fundamental rejection of the statutory obligation to bargain in good faith is thus the heart question to be decided. In addition to the foregoing persuasive indications that the Respondent was absolutely opposed to dealing with the Union regardless of all considerations, there are other factors lending material support to this essential allegation of the complaint. s There is also no issue raised as to the appropriate bargaining unit, the answer again admitting the pertinent allegation of the complaint. Accordingly, I find that all produc- tion and maintenance employees of the Respondent employed at its Rutland, Vermont, plant, excluding all office clerical employees, guards, professional employees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4 The Colson Corp. v. N.L.R.B., 347 F. 2d 128 (C.A. 8). 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Friday, February 5, 2 days after the mass union meeting where a large number of employees signed cards, was the regular payday. When the office girl circulated among the ladies distributing the pay envelopes in her usual fashion, she was accom- panied in this instance by Plant Supervisor Josephine Rotella; Rotella is in complete charge of the entire shop in the absence of Nussbaum and Sales Manager Blackstone, each of whom only visits Rutland for 1 day on alternate weeks. As she went from one employee to another Rotella told each one that if she was not satisfied working there she should not return the following Monday. When one girl told her this was not a nice thing to say, Rotella answered that these were her "orders." Asked by company counsel to explain why she had done this, Rotella said: "Well, I was con- stantly besieged with requests for price adjustment, and we'd had so many problems that it was really rather frustrating, so I decided to go around and have a chat with all the girls." Rotella also admitted she knew the day before about the card signing activities. Exactly 6 days later, on February 11, the day after Nussbaum had extracted the vote of confidence from the employees to be used as a basis for his attitude toward the Union, Blackstone was in the plant and gave a raise in wages to virtually every- one of the 86 employees. At the hearing everybody conceded, employees and man- agement representatives alike, that complaints about wage rates were an old story. The company officers had said in the beginning, and reassured the employees from time to time, that as soon as conditions warranted and production efficiency was improved, wages would be adjusted upwards. Four girls approached Blackstone on the 11th with the usual demand for more money; they wanted their minimum rate raised. from $1.25 to $1.40 per hour. He talked with them, looked at some records, and decided to give them exactly what they requested. That evening he called together the entire complement of stitchers-over 60 employees-and announced he was giving all of them the same raise . That same day Blackstone gave comparable raises-5 cents, 10 cents, or 15 cents-to other categories, except for the eight pressers . Where there were only one or two employees in a class, he said, at the hearing, his reason was because the work duties of those persons had been increased in volume, or because additional functions had been added to their earlier duties. As. to the large bulk of the employees, the 60 stitchers, Blackstone testified that he made the decision that day because "production at that time started to increase," because the payroll records showed "they were all earning a minimum of $1.40 and better," "around the February period when we started reaching what we call our stabilization point." Blackstone also said, as to some of the raises at least, that it was Plant Supervisor Rotella who had told him "it was time for them to get an increase, and based upon her recommendation I gave an increase to those people." That same day Nussbaum himself raised the guaranteed minimum wage of the pressers from $1.40 to $1.50 per hour. He said he chose that time because ". . . our production had been getting increasingly better. We were shipping more each week. Beginning with that, I think the first week in February, and the girls were entitled to, for me to come through with one of the promises I made, that when production did increase, we would take care of them, and it was timely now." Nussbaum also added that Rotella was in the room with him when be spoke to the pressers as a group, that she is "the only one I ever discuss anything with the running of that place .... I always look to her for confirmation in anything I did." Alone, Rotella runs the shop on the day-to-day basis and certainly knows all about production, efficiency, and earnings. If in fact the girls had already been earning the higher amounts of $1.40 or $1.50 per hour she must have known it. On February 5 she found the requests for these pay raises "frustrating" to the point of asking the women to leave; in less than a week, according to Blackstone and Nuss- baum, she recommended the same raises. Somewhere, somehow the signals were crossed. In the total circumstances, and especially the apparent inconsistency between her testimony and that of her superiors, I do not credit the two men's explanation that they chose to give all these raises at that particular moment because business improvement warranted it. Rather the significant sequence of events, cou- pled with Nussbaum's other direct antiunion activity of the day before, compel the inference that the real reason was to make more certain that the Respondent's design to divert the employees from their desire to operate `union",' instead of "nonunion" would succeed. ` On February 3 the Union held a much publicized meeting, attended by about 150 of the old Rosenblatt employees,, including many now working for Liz of Rutland, at which time 30 or so of Respondent's people signed authorization cards. No doubt the Company learned generally of what was going on. Plant Supervisor Rotella told the employees 2 days later they were welcome to leave if not "satisfied" there. This .during the very period when the Respondent, according to a separate defense to the LIZ OF RUTLAND, INC. 129 entire complaint based on an assertion of expanding unit, was adding machines to the plant and seeking more employees to hire. This, also, during the week when, as Blackstone testified, the girls were earning better than ever before, in fact enough to warrant the raises at no cost to the Company. On the 8th, 3 days later, Nussbaum received the Union's request for bargaining. He reacted by frightening the women with the threat that they could find themselves without employment again, as they had been only 4 months earlier. That same evening he gave a sham performance before the union representatives , "'stalling for time" to gather strength for the eco-. nomic struggle to come. And the next day everybody in the plant received a raise. That the raises, following so closely upon the heels of the union activity, were caused by those events is inescapable . Indeed they appear as a further defensive measure taken by Nussbaum to assure that if a strike did materialize, the girls would not quit. With this as prelude , the representation petition , calling for a secret Board election, which the Respondent filed the day of the strike, added no significant weight to the present assertion that Nussbaum always doubted the Union' s majority status in good faith. I find that by granting raises to the employees on February 11, 1965, the Respond- ent deliberately interfered with their free exercise of the right to self-organization, and thereby restrained and coerced them in violation of Section 8(a)(1) of the Act. I also find that during that month Nussbaum did not in fact doubt that the majority of his employees had authorized the Union to bargain on their behalf. He was completely indifferent to their real desires in the matter . His refusal to extend real recognition to the Union and to bargain honestly, as the statute requires, was therefore not a decision based on a good-faith doubt of majority status, but instead part and parcel of a pervasive decision to continue in business on a "non-union basis" regardless of law or the desire of the employees. I also find no merit in the separate and unrelated defense that the complaint must be dismissed because the number of employees at work at the time of the demand was too small to be deemed representative of the eventual complement which the Respondent intended to hire. It is conceded that there were employees at work in each and every classification used in this type of business . Starting with about 30 employees when the plant opened in October, the overall group grew to 86 for the week of February 6, 1965, and then in successive weeks to 95, 99, 102, and 105; when the strike started on March 17 there were 112 employees. There is no defini- tive or objective proof of binding, contractual commitments upon which it could be found that this number, with certainty, was to expand greatly within predictable and short periods . Without producing company records for support, Nussbaum said at the hearing that before the strike the plant produced 3,000 units per week; he added that after the strike he turned down an order for 22,000 units. The precise rela- tionship between such an order and the number of employees required is not explained on the record . Moreover, apart from repeated statements made by Nuss- baum and other company officials from the start of the business that they hoped, or expected to continue to grow as time passed , there is no evidence that this meant more than the usual expectations of a new businessman or any merchant. In its totality what testimony was offered by the Respondent in support of this defense is more aptly described as the unsupported hopes and expectations of a man in busi- ness. More significant, so far as the defense is concerned in this case , no officer of the Respondent ever advanced this present assertion as a reason for not bargaining with the Union at the time of the organizational activities and the demand and refusal. The record as a whole shows convincingly that the entire concept of an expanding unit defense was entirely an afterthought thrown in as makeweight at the hearing. Authorizations to Bargain ; Majority Status When the Union wrote to the Respondent on February 4, claiming recognition, it had in its possession 45 duly signed authorization cards for the 86 employees then in the unit. As the weeks wore on, and as Nussbaum continued to mislead the Union into believing he did intend to negotiate, more persons were hired and union repre- sentatives kept pace with the increased complement by successfully soliciting addi- tional cards. During the events in question the Respondent occasionally referred to the fact the employees had indicated "loyalty" to the Company on February 10 in the plant, and that based on that expression of intent Nussbaum doubted the Union's majority status. At the hearing the Respondent injected a new element for the purpose of defeating the complaint, an affirmative contention that the employees who signed intended a purpose other than the plain language of the cards. It argues that this fact, if true, must serve to excuse Nussbaum's conceded refusal to bargain even though at the time of his action he may have neither known nor cared about the 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards at all. In his effort to establish this defense, counsel for the Respondent exhaustively examined and cross-examined virtually every employee in the p1nnr delving into almost everything that was said `uy anyonb in die course of the several months of organizational activities. There were received into evidence a total of 69 identical authorization cards, the fact of their having een signed by t! - emoloyccs_mvolved in-, lmpst every instance proved by_ the testimony ui inc`employee herself, and In a few cases by otherwise probative evidence.- The priuiea cards read as tollows International Ladies' Garment Workers' Union Affiliated with the A.F L -C 10. AUTHORIZATION CARD I, of my own free will, hereby authorize INTERNATIONAL LADIES' GARMENT WORKERS' UNION, its affiliates and its representatives, to act exclusively as my agent and representative for the purpose of collective bargaining. Print Name -------------------------------------------------------- Address ----------------------------------------------------------- (Street and Number) City ---------------------------------------- State ----------------- Employed by ------------------------------------------------------- Employer's Address ------------------------------------------------- Signature ----------------------------- -------- Date ------------- STRICTLY CONFIDENTIAL A broad attack is directed at 33 of the cards, all signed at the meeting of February 3, where the Union distributed severance benefit checks to about 150 per- sons who had worked for Rosenblatt, among them at least these 33 then working for the Respondent Under Rosenblatt's contract with the Union employer contribu- tions had long been made to a health and welfare fund which paid unemployment, or severance money to members who had been covered by contract, the benefit period depending upon the length of membership, or perhaps on contract-covered employment. Rosenblatt had closed 14 months earlier, and many of the women, having worked 5, 10, or over 20 years there, were still entitled to such payments The Union announced the meeting in the newspapers, detailing its purpose to be distribution of severance checks to the Rosenblatt employees and ceremonial honor- ing of retirees. It seems there were a number of long-time Rosenblatt employees who had reached retirement age under the Union's pension system and were to start receiving such payments at that time. With about 150 women present at the hotel gathering, various union officials were presented, the retirees were asked to come forward, and everybody applauded them; they were even photographed to commemo- rate the occasion. A great many severance checks were given to the members of the Union. During the meeting the officers, assisted by several employees, also passed out authorization cards and sought as many signatures as they could obtain. There is conflicting testimony as to whether the authorization cards were dis- tributed before or after the severance checks, the disagreement among the witnesses separating largely those who later joined the strike from those who did not, the former group saying the severance checks came first, and the latter contradicting them. The Respondent contends that this was an improper method for soliciting authorization cards, that distribution of money in this fashion by the Union directly to the employees solicited at the very moment they were asked to sign, unduly coerced them in the matter, and that therefore all 33 cards signed that night may not be used as reliable evidence of intent to be represented by the Union. I find no merit in this contention and deem the precise moment during the meeting when the cards were circulated to be immaterial. There is no evidence, nor is it claimed, that the receipt of severance money was conditioned in the slightest upon the signing of authorization cards. No doubt distribution of such checks, from a union welfare fund, without more was eloquent argument in favor of union membership, and of working with a union contract instead of under "nonunion conditions." To an employee group such as this, all of whom had long been unemployed, and with many still out of work, there could hardly be more dramatic, and therefore persuasive, illustration of why they should continue union membership and make every attempt toward collective bargaining under union contract conditions at their work. Indeed, it must be assumed that the union officers staged so formal a presentation of retirees and so extensive a distribution of severance payments, and coupled the display with the solicitation of authorization cards, for the very purpose of emphasizing the 5 Irving TaiteZ, et aZ., d/ b/a I. Taitel and Son, 119 NLRB 910. LIZ OF RUTLAND, INC. 131 benefit flowing from collective bargaining. It could hardly be argued that an orga- nizer may not speak at length upon the advantages to be derived from union member- ship, including detailed explanations of retirement or unemployment benefits enjoyed by members under contracts negotiated by his union. Here the fact of the benefits spoke for itself. What the Respondent is really suggesting is that this was too effec- tive a way to make the point, and therefore unfair in some fashion, or not to be permitted. The position is untenable. The Respondent also contends that the 33 cards signed at that meeting must be rejected in this proceeding on the further ground that the union officers misrepre- sented the purpose of the cards and that therefore the employees never in fact intended to authorize immediate bargaining. In support of this assertion the Respondent called a number of employees who quoted District Manager Karesky as saying that he intended to use the cards to seek an election through the Board. Some employees also testified that in one fashion or another Karesky gave them to understand that the cards would serve to bring another dress company to Rutland- a company called Foggarty-and that Foggarty being a "union" manufacturer, the cards were for the purpose of assuring employment later with that company. The sole area of agreement among the many women who testified about what was said at that meeting is that there was much confusion, with groups of ladies congre- gating here and there chatting among themselves, others circulating back and forth either picking up authorization cards and severance checks on the front table or bringing them back to the people in the rear, and a general air of sociability. Wit- ness after witness recalled only single phrases and insisted she remembered noth- ing else, despite the fact the meeting lasted 11/2 hours. In the middle of it all, at the very moment when Karesky started talking about the cards, Mary Mirti, an employee, stood up and asked to be heard. She then announced that she had been told by management "that if the girls signed the cards that the company, they didn't want a union, that they would pull out." s The statement added further hubbub to the meeting, despite Karesky's next statement that the employees should not be disturbed, because employers always make threats but very seldom carry them out. Karesky's testimony is that after Mirti's statement about the Company's threat to leave Rutland he explained the purpose of the cards as follows: "I said very emphat- ically, it's up to you to sign. If we have a majority, I'm going in for immediate recognition, or we'll ask for a consent election . Every one of these cards are con- fidential. I'm not going to twist anyone's arm. You've been union members for a long time." At one point Williams, president of the AFL-CIO of Vermont, made reference to the Foggarty Company. During the period the Union was making attempts to per- suade Foggarty, which normally recognizes the union in its operations elsewhere, to open a plant in Rutland so as to provide work for more of the old Rosenblatt employees. Williams spoke out that although the announcement might be prema- ture he believed Foggarty would in fact arrive in a few weeks. Karesky then told the women he would really believe it only if he saw a signature on a binding lease, or some other contract. 6 Mirti testified that during working hours that day Plant Supervisor Rotella told her that she had seen the newspaper notice of the meeting, that she had heard authoriza- tion cards would be solicited there, that the girls knew when they started to work "it was going to be a non-union shop," and that therefore she wanted Mirti to "get up at the meeting and tell them that if they organized the company would pull out as fast as they came in." Rotella recalled having seen the newspaper announcement that day but denied telling Mirti to make any such statements on the Company's behalf. On the basis of the demeanor of both these witnesses, plus the testimony of Nussbaum and his total activities reported above, I credit Mirti, and I find that by giving such instruc- tions to the employee for referral to the group as a whole, Rotella committed a further unfair labor practice in violation of Section 8(a) (1) of the Act for which the Respondent is accountable . Winchester Electronics, Incorporated, Pyne Moulding, Inc., 128 NLRB 1292. I also credit Mirti's testimony , although denied by Rotella, that on or about March 3 the plant supervisor called all of the ladies together and told them she had received "a phone call from Mr. Nussbaum and they were planning to buy the building or negotiating to buy the building and it all depended on the way we voted, but she knew that the girls would stick by Mr. Nussbaum ." By this statement Rotella again violated Section 8(a) (1) of the statute. 217-919-66-vol. 156-10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A> the meeting , 32 women appeared as witnesses and each testified she signed the authoriza ion card rec=lved in evidence. Nine of them simply said ey un ers cod th or a un n an n ing more.7 With their words varying only in phrasing but not in substance, 10 others 8 testified affirmatively to havng herd Karesky explain the cards were for the purpose of demanding immediate recogni- tion, and for an election only in the event Nussbaum should refuse to bargain on demand. Howland: . . he [Karesky] says that we'll take them down to Mr. Nuss- baum and if the cards were recognized, that if he didn't recognize the cards, we'd call for an election." Steele: ". . . if we get the majority, we will go in and see Mr. Nussbaum and see if he will recognize the Union." Gertrude Burke: . . he went on to explain that if he had over 50 percent of the cards signed he could ask man- agement for recognition." Mirti: . . that those were cards for authorization cards and that it was for them to be able to go in and bargain with the company if they had the majority." Frankiewicz: "[They said] it was an authorization card that would give the Union the authority to go in and bargain for us." Yrsha: "To rep- resent-to have them as our bargaining agent if we wanted to, the International Ladies Garment Workers' Union." Drozd: "Just to go in, to have the right to go in and bargain with Liz of Rutland for us to give them the right to go in and bargain with the Company." Wozniak, who did not strike and who quoted other employees as saying the card would help obtain work in "other union shop," recalled Karesky as saying: . those cards were signed, authorized by us for collective bargaining; ... collective bargaining or a vote...." The testimony of the remaining 13 ladies who were present that evening and signed cards was clearly intended to offset the purpose directly printed on the authorization cards. Each gave a different version of what she heard; the variances in the recol- lections of this group went to the substance of what Karesky said, although almost each of them in one way or another also recalled language consistent with the testi- mony of the union spokesmen. For example-Cameron: "They were going to negotiate or something, that we would have a chance to vote." Williamson: "Well, he told us that there would be a vote; if there was a majority that signed them, there would be a vote." Sophie Hyjek: "He wanted us to sign the cards so we could represent the Union ... he wanted to get the Union in the Liz of Rutland ...." Several women testified they were told the purpose of the cards was to obtain a Board election, some directly and others more vaguely. Molenaor: "He stated ... the cards would be turned over to the National Labor Relations Board; and at the time designated by the National Labor Relations Board there would be an election held and the girls would have a chance to vote." Elizabeth Burke: "They needed the signatures to get to the National Labor [Relations] Board to get a vote for us, and he talked about the vote that was in the shop, about the hand-raising, [sic] but I wasn't there on the hand-raising, so I don't know." Taggart: "They said the blue cards were to give a chance to vote whether we wanted a union." Zawistowski: he says that we were going to have another factory within 3 weeks, and it's going to be a Union factory, and this signature will bring us closer to a voting with the National Labor Relations Board. . . . They were a confidential card that the voting will follow later." Two ladies recalled nothing about any election; they testified the union officers spoke of the cards as 'necessary for holding present jobs, or obtaining new ones. Woods: . Mr. Karesky got up and said that he wasn't going to tell us that night, but seeing that this other man got up and made this statement [the expected arrival of the Foggarty Company], that he would say yes, that it was true, and in a very short time this would come about . . : that those that didn 't sign the card would never work in a Union shop ...." Stephie Bujek: "He said about those cards that they will give us another new shop, better place to work, something. I can't remember." From three women there was ambiguous testimony that Karesky spoke about employees "crying on his shoulders." Cijka: . . he said that he hoped if a union comes in that they don't come back crying on his shoulder." Kaspshak` "He said, I don't want you girls to come crying on my shoulders if the Union comes in." Mollie Hyjek: "He said something about crying, but I didn't get what he said." Lastly, Pinkowski, who also said she could neither write nor read English, recalls Karesky as saying: . . he said that Foggarty shop supposed to come in Rutland, you better sign those cards because I no want you to cry over my shoulder to the job after ... they supposed to vote on this card." 7 Carmel Amoriello, Catherine Giancola, Pierina Crosta, Jane Ricci, Stella. Rocchi, Genevive Giebutowski, Anna Smyrski, Dorothy Amoriello, and Mary Goodrich. e Hazel Howland, Nancy Steel , Gertrude Burke, Mary Mirti, Julia Frankiewicz, Wanda Yrsha, Grace Drozd, Elizabeth Oczehowski , Aurore Herrick, and Bernice Wozniak. LIZ OF RUTLAND, INC. 133 Recalled in rebuttal after all these women had spoken, Karesky denied having said one word about people not holding their jobs, or not being hired by Foggarty or any other employer, in consequence of signing or not signing cards. He also insisted he in no way conveyed the thought that the cards were for the limited purpose of seeking an election. Harold Dudman, the other principal organizer at the meeting, corroborated Karesky, and also repeated that what Karesky said was that he would demand immediate recognition of the Company if a majority signed cards, but would ask for an immediate election only if Nussbaum refused to bargain .9 I credit Karesky and Dudman, and those employees whose testimony was con- sistent with the cards all the ladies signed. There are many reasons for this broad credibility resolution, which goes to the substance of what the union agent said rather than the details of all the words that were used. It would be futile to attempt to reconstruct all that took place at the meeting, in part because in the very nature of human experience the stories of so many participants will conflict, but in particu- lar because the record as a whole shows that both groups of employees colored their testimony in some degree. They repeated essentially what they claimed Karesky told the entire group; there therefore cannot be one precise credibility finding between him and a particular lady, and another on what some other employee allegedly heard him say. The first objective fact is that the cards say nothing about elections, or hiring privileges, or job guarantees. They literally authorize a union to represent the employee in collective bargaining. These employees knew about union representa- tion and collective bargaining; they had long been members of the ILGWU, and at that very moment held in their hands the material evidence-in form of the sever- ance checks-of what union representation means. It is not likely therefore that they would misunderstand the purpose of what they signed. There are eight places on the card calling for information to be supplied by the applicant. Of the 13 women who attempted to disown the cards, 7 said they filled the card entirely in their own handwriting. A look at three additional cards shows without question this was also true as to Neola Williamson, Mary Cameron, and Sophie Hyjek. Two women were not asked and their cards are part print and part longhand, so that one cannot tell. Pinkowski alone signed only her name and nothing more. The state- ment on the witness stand by Woods, Bujak, and Mollie Hyjek that, although each of them filled out the entire card, they "did not read it," serves only to impair their credibility. Moreover, the testimony of this group of witnesses was much more vague and unpersuasive in its totality than that of those who adhered to the cards they signed. Repeatedly they said they could recall nothing more than the pinpointed phrases which conflict with the wording of the cards-an improbable state of affairs after attending a meeting lasting over an hour where much must have been said. And some couched their recollections partly in terms of their impression of what was said, or as their present "understanding" of the union agents' message.'° Karesky did mention an election as the alternative only in the event Nussbaum should refuse to deal with the Union, and conceivably some of these witnesses, out of failing memories, might recall some of his words and not others. It must be stated that some ladies in the other group also showed unexplainable lapses of mem- ory as to details that ordinarily would be remembered. However, from my personal observation of the entire stream of witnesses, I am convinced that the women who contradicted the direct and clear testimony of union agents made a much more studied attempt to evade telling the whole story, or to persist in reporting those single phrases which would preclude a finding now that they had in fact, back at the start of February, authorized the Union to act for them. There is, however, a much more significant factor to be considered here. English- speaking persons all of them, after signing the clear and unequivocal authorization cards these women had been subjected to the most intimidating form of coercion avail- able to the Respondent for the very purpose of prevailing upon them to change their minds and to reject the Union. After signing the cards they had received a raise in pay, no doubt one of the very objectives of their initial desire to bargain collectively. Despite the Union's attempt to bring another dress manufacturer to Rutland, and after all the talk among the employees and in the newspapers about the expected Foggarty Company, nothing came of these hopes. Many of the old Rosenblatt employees were still out of work and there was no place for these people to go if the Respondent were to leave town. In these circumstances, Nussbaum's threat that if 6 Cf. Cumberland Shoe Corporation, 144 NLRB 1268. 10 S.N.C. Manufacturing Co., Inc., 147 NLRB 809, 822. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his people insisted on his dealing with the Union he would close shop, must have had a continuing effect, this time with the realization that unemployment would not be softened by any union severance checks. It would be unrealistic to ignore the Respondent's illegal conduct toward the employees during the period between the signing of the cards and the time of the hearing. I find that the 32 employees named above who signed cards at the February 3 meet- ing in fact authorized the Union to bargain forthwith for them. The first move toward bringing the Union into the plant was made by Margaret Buggiani, the old union secretary when Rosenblatt was in business. In December she called Helen Clemens, ILGWU business agent, who had serviced the town earlier. Within a period of 5 days, from December 14 through 18, they visited a number of ladies at home and successfully solicited signatures to cards. A few were also dis- tributed in the plant, with employee Louise Himes asking other ladies to sign. ere were received into evidence 13 cards signcd in this brief period and again there is no quesfion ut to c was in ac signed b the em IoyeeKimself. - ine of these cards present no issue whatever. Irene TITMey did not testify, but her signature was authenticated by the solicitor. Wilma Foster, Erminia Vitagliano, Margaret Buggiani, Giocomina Balestra, Lucia Balestra, Lena Ronca, Lottie Kurant, and Mary Altobell, each testified; those of them who spoke at all about what was said at the time related that the conversations dealt with "so they could go in and bargain with Mr. Nussbaum, ...," or "to have them have the right to bargain union." 11 As to the remaining four cards obtained by Buggiani and Clemens in December, there developed the same kind of conflict in testimony concerning what was said by the solicitors as arose respecting the union meeting of February 3. Louise Himes said she was told "it would be so it would give them a right to come in and have an election." Frances Thomaszewski was solicited by Himes and returned signed cards to the latter, who thus authenticated the signature. Thomaszewski did not testify, but Himes said she advised her of the purpose as it had been stated to her. Olga Johnson testified Buggiani told her: ". . . This outfit is not here for long; and she says if you want to hold your job, you better sign a card." And Martha Banik said Himes told her before she signed "that we can vote for it or against it. That is all I understood." Buggiani denied having said anything about an election either to Himes or to Johnson, or that she told Johnson she might for any reason lose her job. She testified she asked each of these women whether they wished to be represented by the Union, and that Himes responded by agreeing to accept additional cards to see what the other girls might like to do. Himes in fact held her card for a few days and only then returned it signed, together with that of Banik and Thomaszewski. Much of what is explained above as pertinent to the credibility issue dividing the two broad groups of employee witnesses in this case applies to the question between Buggiani on the one hand and Himes and Johnson on the other. The cards are clear; Himes' statement at the hearing that she kept the card for "sometime," then filled it in in its entirety, but did not read it, casts a serious reflection upon her credibility. She also conceded that Buggiani told her the Union was trying to obtain a "majority" of the cards, and that she answered it was her wish also to go along with the "majority." Johnson too wrote in a good part of the card and then said she did not "actually read the card." Moreover, her story lacks persuasion on its face. She had a job and she knew Nussbaum intended to remain in business but without a union. It is there- U Altobell and Kurant were not on the payroll when they signed their cards ; after working a number of weeks they had been discharged for failing to earn the minimum guaranteed wage. Kurant said she returned on January 20; her card is dated Decem- ber 17. She was invited to the Respondent's Christmas Party and told "around" that time that she would be recalled. Altobell signed on December 14 and was told by Sales Manager Blackstone, after Christmas, she would be recalled as soon as there was enough work. She returned on January 16. Both of these ladies had been union members with Rosenblatt; Altobell filled in her card entirely, and Kurant almost all of it. They un- doubtedly understood its importance and there is no indication either thereafter sought to retract her authorization. I find no merit in the Respondent's contention that because they signed during the short hiatus in employment their clear authorizations to the Union must be ignored. LIZ OF RUTLAND, INC. 135 fore unlikely Buggiani would have told her the union card was insurance against losing such a job. Buggiani's testimony is also supported by the fact she did not say any of these things to the many other women she solicited at the time. And, again, there is the significant fact that between the time of the conversations now being recalled and the day of giving testimony there was the illegally coercive conduct directed against these employees by the Respondent. On the basis of demeanor of the witnesses, plus all these other considerations, I credit Buggiani and find that Himes, Johnson, Banik, and Thomaszewski, when they signed the cards in evidence, in fact intended to authorize the Union to bargain on their behalf. It thus appears that by February 10, 1965, when Nussbaum was meeting with the union representatives in the Rockland hotel and pretending to bargain but in reality seeking time to prepare himself for the union pressure which he felt would eventually come, the Union had been authorized by 45 employees in writing. In addition the record shows that Ruth Renard, also an employee and long a union member, was in good standing with her dues paid periodically and consistently through the entire year 1964 and up to and including the month of April 1965. The Union's representative status on February 10 was therefore 46. The parties stipulated, and the company payroll records show, that for the week ending February 13 there were 86 employees in the bargaining unit. By the payroll period ending February 20, 9 additional employees had been hired, making a total of 95. It is with respect to this number that the Union's majority status may be established, for on the 19th the Respondent again met with the union agents, this time in New York City, and again went through the empty motions designed to cloak its determination to deny recognition regardless of all else. During that same week the Union continued its organizational campaign, this time through Organizer Dud- man who visited employees at home together with other union agents. Lucille Nolte signed on February 16, Sophie Lengel on the 17th, and Anna Dutelle and Gladys Shelvey on the 18th. Helen Wilczynska had been present at the union meeting on February 3, where she filled out a card but did not hand it in. She signed it and delivered it to Dudman at her home "two weeks later"; this would be Febru- ary 17. Mary Bujak also signed on the 17th, and Josephine Przybyl the next day. There is no evidence raising a question as to the validity of the cards as signed by the first four of these women. The Respondent's contention that those of the last three enumerated may not be counted is without merit. Wilczynska testified that she told Dudman she did not believe there would be a union in the Respondent's shop, but that the organizer answered by saying they were negotiating in New York the next day, and he would bet a contract would be signed by 10:30 a.m. She recalled nothing else of the conversation. Bujak said Dudman told her he had good news and that "Foggarty was coming"; she said she was told nothing else. She then added that although she filled in the entire card she did not read it. And Przybyl recalled that Business Agent Clemens, who accompanied the organizer, explained the union benefits to her and said that there would be more work if the Union "got in." She signed and told these people ". . . I feel like a hypocrite because I did promise Mr. Nussbaum to stay with him, and now I say you have me sign a card." The record thus shows, and I find, that on February 19, 1965, the Union had been authorized to bargain by 53 employees in the overall complement of 95, and that therefore it represented a majority of the employees in the appropriate bargaining unit. It having been found that the refusal to bargain on that day was motivated by a fundamental rejection of the statutory principle of collective bargaining, and not by good-faith doubt as to the Union's majority status, it follows, and I find, that by such refusal the Respondent violated Section 8(a)(5) of the Act, as alleged in the complaint.12 12 In addition to the 52 authorization cards discussed above, 17 more were placed in evidence, all but 3 executed after February 20, some during March. These reflect the Union's continuing effort to maintain its majority strength as the Respondent hired new employees ; the total employment at the time of the strike on March 17 was 112. Like the earlier dated cards these too fall into two categories , some presenting no question as to whether or not they prove an intent to authorize bargaining , and some coupled with conflicting testimony as to what the employees were told when they signed. Where 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I _also-find that when the employees struck on March 17, 1965; their, purpose was to protest against the Respondent's illegal refusal to, bargain, and that therefore they were engaged in an unfair labor practice strike. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set out in section III, above, occurring in connec- tion with the operations of the Respondent set out in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct, and to take certain affirmative action designed to dissipate the effect thereof. The Respond- ent having refused to bargain in good faith with the Union upon request, it must be ordered to do so, and, if an agreement is reached, sign such a contract. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recom- mend that the Respondent be ordered to cease and desist from in any manner infring- ing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Respondent employed at its Rutland, Vermont, plant, excluding all office clerical employees, guards, professional employees, and all supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Upstate New York.& Vermont District Council, International Ladies' Garment Workers Union, AFL-CIO, was on February 19, 1965, and at all times since has been, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union as the representative of the employees in the aforesaid unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the foregoing conduct, by interrogating employees concerning their union activities, by threatening to discontinue business operations, by granting raises as inducements for discontinuing union activity, and by asking employees to leave work in consequence of their union activities, the Respondent has interfered with, restrained, and coerced employees in their right guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. witnesses gave each other the lie, essentially those same factors for resolution come into play that are considered above, and the demeanor of the witnesses as well as the character of their stories, again separating striker from nonstriker , was the same. Were it neces- sary for decision in this case , I would decide, from my observation of the witnesses, that the things they were told were consistent with the language of the authorization cards., There is no need, however, to burden this Decision with a detailed analysis of these addi- tional cards, for the illegal refusal to bargain was clear on February 19, the Respondent must bargain upon request pursuant to this finding, and the remedial order will. be the same regardless of whether any or even all of these 17 cards be discounted. For the same reason it is unnecessary to decide whether Dominic Coull,Itti was hired on February 23, as the Respondent contends, or on March 8, 1965. LIZ OF RUTLAND, INC. 137 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, I recommend that the Respondent, Liz of Rutland, Inc., Rut- land, Vermont, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Upstate New York & Vermont District Council, International Ladies' Garment Workers Union, AFL-CIO, as the exclusive representative of all employees in the appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employment. (b) Interrogating employees concerning their union activities, threatening to discontinue business operations, granting raises as inducement for discontinuing union activities, or asking employees to quit in consequence of their union activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights to self-organization, to form labor organizations, to join or assist Upstate New York & Vermont District Council, International Ladies' Gar- ment Workers Union, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request bargain collectively with Upstate New York & Vermont District Council, International Ladies' Garment Workers Union, AFL-CIO, as the exclusive representative of all employees in the above appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Rutland, Vermont, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by the Respondent's 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 by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith 14 "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 is enforced 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." 14In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, In writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Upstate New York & Vermont District Council, International Ladies' Garment Workers Union, AFL-CIO, as the exclusive bargaining representative of all employees in the appropriate bar- gaining unit described below. WE WILL, upon proper request, bargain collectively with Upstate New York & Vermont District Council, International Ladies' Garment Workers Union, AFL- 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO, as the exclusive representative of all employees in the bargaining unit described below, and if an agreement is reached sign such an agreement. The bargaining unit is: All production and maintenance employees in our Rutland, Vermont, plant, excluding all office clerical employees, guards, professional employ- ees, and all supervisors as defined in the Act. WE WILL NOT interrogate our employees concerning their union activities, threaten to discontinue business operations, grant raises as inducement for employees to discontinue their union activities, or ask employees to quit their jobs in consequence of their union activities, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protec- tion, or to refrain from any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. Liz OF RUTLAND, 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. If employees have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts,. Telephone No. 223-3358. Universal Metal Finishing, a Division of C. A. Roberts Co. and Metal Processors' Union, Local No. 16, International Union of Doll & Toy Workers of the U.S. and Canada, AFL-CIO. Case No. 13-CA-6887. December 17,1965 DECISION AND ORDER On August 12, 1965, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief to which the General Counsel filed an answering brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The. Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record 156 NLRB No. 19.