C. A. Roberts Co.

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. UNIVERSAL METAL FINISHING 139 in this case, and hereby adopts the findings,' conclusions,2 and recom- mendations of the Trial Examiner.3 [The Board adopted the Trial Examiner's Recommended Order.] 1 Like the Trial Examiner, we find that employee Alvarez signed two union authoriza- tion cards, one on January 30, 1965, and one on February 3, 1965, only one of which was counted in establishing the Union 's majority status. 8 Respondent contends that the Trial Examiner was biased and "permitted his own emotional reactions to interfere with a considered judicial review of evidence in the record." This charge of bias is not based upon any alleged statements of the Trial Examiner which might indicate he had prejudged the case nor upon his conduct or rul- ings made at the hearing but, as indicated, is directed to his findings and conclusions and his analysis of the facts on which they are based . We have held that "[p]ossible errors of this sort are hardly sufficient to establish bias." Hot Shoppes, Inc., 146 NLRB 802, footnote 2, and cases cited therein. In any event , a careful review of the alleged bias set forth in Respondent 's brief does not, in our opinion, support the claim. What Respondent essentially complains of are the Trial Examiner ' s credibility resolutions, claiming that in every instance such were resolved in favor of the General Counsel. As the Supreme Court stated in N.L.R.B. V. Pittsburgh S.S. Company , 337 U.S. 656 , 659, ". [T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." As one example of bias, Respondent points to the fact that several General Counsel witnesses testified that Cauliflower, the Union 's solicitor of authorization cards, made certain representations to them, on the basis of which they signed the cards which established the Union's majority. Respondent states that the General Counsel's witnesses, discredited on this issue, were completely credited on all other issues and that Shaw, one of these witnesses , was the only completely disinterested witness-being a nonemployee. It argues that Shaw gave otherwise damaging testimony against Re- spondent and was fully credited thereon and that on the only issue whereon he was not credited, the alleged representations of Cauliflower, he was corroborated by other Gen- eral Counsel witnesses. It is a sufficient answer to this contention that the Trial Ex- aminer could give credence to certain testimony of a witness or witnesses while rejecting other portions of their testimony . N.L.R.B. v. United Brotherhood of Carpenters and Joiners of America, Local 517, AFL (Gil Wyner Construction Co., 230 F. 2d 256, 259 (C.A. 1). We note that the Trial Examiner based his resolutions as to Cauliflower's testimony, in part, on demeanor, stating that "his (Cauliflower's) testimony carried con- viction." As "no credited testimony herein 'carries its own death wound' and no dis- credited testimony 'carries its own irrefutable truth' " (N.L.R.B. v. Robbins Tire ci Rubber Company, Inc., 161 F. 2d 798, 800 ( C.A. 5), cited with approval in N.L .R.B. v. Pittsburgh S.S. Company, supra), we reject the allegation of bias and adopt the Trial Examiner's credibility findings. Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496-497. 8In view of the finding that Cauliflower did not make the representations in issue, we do not deem it necessary to pass upon the materiality and relevancy of such representa- tions with respect to the validity of authorization cards. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Trial Examiner William Seagle heard this case at Chicago , Illinois, on May 18 and 19, 1965, upon a charge filed on February 8, an amended charge filed February 11, and a complaint issued on March 30, 1965, alleging violations by Universal Metal Finishing, a division of C. A. Roberts Co., hereinafter referred to sometimes as Uni- versal Metal or the Respondent, of Section 8(a) (1) and (5) of the Act. Upon consideration of the entire record, including the posthearing briefs filed by counsel for the General Counsel and for the Respondent, and in view of my observa- tion of the demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE RESPONDENT _ Respondent is, and at all material times 'has been, a corporation duly organized under, and existing by virtue of, the laws of the State of Illinois . The Respondent's office and principal place of business is at 1330 West Fulton Street, Chicago, Illinois, where it has been engaged in the service of-metal finishing. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the past calendar year, the Respondent, in the course and conduct of its business operations, processed, sold, and distributed at its Chicago, Illinois, plant products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from the said plant directly to States of the United States other than the State of Illinois. H. THE LABOR ORGANIZATION INVOLVED Metal Processors ' Union, Local No. 16, International Union of Doll & Toy Workers of the U.S. and Canada, AFL-CIO, herein called the Union , is a labor organization which has organized the employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The organizing effort and the Union's request for recognition on February 4 On January 23, 1965,1 Charles Cauliflower, who was then an employee of Universal Metal,2 and who was, apparently, dissatisfied with his working conditions, visited the union hall to pay the dues of a sick friend, and while he was there he had an interview with Donald G. Glenn, an organizer for Local 16, who persuaded Cauliflower to sign a union authorization card and to take along with him a batch of such cards in order to secure the signatures of other employees of Universal Metal. Cauliflower did not solicit any of his fellow employees, however, to sign union authorization cards until Saturday, January 30, when he visited their homes and obtained the signatures of a number of them .3 On February 4 General Manager Wallace G. Crawford received a visit from Glenn and Joseph P. Cicero, the union's attorney, who acted, apparently, as spokesman on this occasion. Throughout the visit there was present Bea Klug, who was not.only Crawford's secretary but also his boookkeeper. All four persons present at the meeting on February 4 testified concerning it, and their testimony is in agreement that Cicero and Glenn informed Crawford that they had in their possession 8 authorization cards signed by employees of Universal Metal; that the union representatives claimed to represent a majority of the employees in the bargaining unit that they deemed appropriate; and that they described this bargaining unit and requested recognition as the majority representative of the employees in such bargaining unit, which on the date of the -visit of Cicero and Glenn at the plant con- sisted of 15 employees .4 The testimony of all four persons present at the meet of February 4 is also in agreement that Cicero and Glenn tendered to Crawford for examination the eight authorization cards in their possession; that Crawford at no time during the meeting himself examined the union authorization cards, which the union representatives handed over to Crawford's secretary; and that at no time during the meeting did Crawford question the authenticity of the union authorization cards but told the union representatives that since he was only the plant manager-the plant was part of a larger enterprise owned by the Roberts' interests-he had no authority to recognize the Union, and that he would have to consult his superiors. Beyond these details the four witnesses are in disagreement. The testimony of Cicero and Glenn is that when they tendered the authorization cards to Crawford the latter told them to give the cards to his secretary; that the secretary then pro- ceeded to count the cards and to check the signatures on them against some records; that after she had done so she announced that it looked as if the Union had a majority; that Crawford thereupon remarked; "All right, you have a majority. Now, what?"; and that they thereupon repeated their request for recognition, after which Crawford conducted them through the plant to show them how small the operation was and how little it stood in need of a union. Crawford testified, however, that Cicero gave the union authorization cards to his secretary without any suggestion from him that he do so, and that while she did count the cards, she did not have them long enough to check the signatures, although he conceded that there were records lying around from which she could have done so. 'Unless otherwise specifically indicated , all dates hereinafter mentioned will be in 1965. 2 Cauliflower left the employ of Universal Metal on February 12, 1965. 3 The reason -may have been that Glenn had to do some preparatory work before the actual solicitation could take place . After Cauliflower's visit to him, Glenn distributed union literature at the back of the plant on several occasions , and was observed in this activity by Plant Foreman Ben Tucker. ' It was so stipulated by counsel for the General Counsel and for the Respondent. Although there were only 15 employees , the plant was operated in 3 shifts. UNIVERSAL METAL FINISHING 141 Crawford testified further that when - the union representatives claimed to have a majority, he told them: "I didn't believe they really did have the majority," and stated that he wanted to have an election ; that when Cicero became importunate and demanded immediate action , he asked why they had to have immediate action when the plant had been operating for 4 years without any problems, and objected to being "crowded" for recognition . Rather inconsistently Crawford conceded on cross-examination that he could not really have questioned the Union's majority, since he himself had not examined the union authorization cards, and, therefore, really had no way of knowing whether a majority of his employees had signed such cards. As for the secretary herself, her version of the handling of the Union's authoriza- tion cards is in substance the same as Crawford's-she claimed that she did no more than thumb through the cards-but in other respects her testimony diverges from that of the other three witnesses. According to her, she examined the Union's authorization cards without any instruction or suggestion from Crawford and only after Cicero and Glen had been conducted through the plant by Crawford. The secretary also testified that Cicero and Glenn stated that "they have eight out of 16 cards but they represent a majority of the people in the unit," despite the obvious fact that 8 cannot constitute a majority of 16 ! Although the secretary claimed that she did not check the signatures on the union's authorization cards, she did not positively deny that she did not even look at the employees' signatures on the cards, for she testified- that when the union representatives asked her, after she had looked through their authorization cards, whether she recognized the signatures of the employees on them, she responded only, "I don't think so." Finally, the secretary testified that she never discussed with Crawford whose signatures she had seen on the union authorization cards. I resolve the conflicts in the testimony in favor of that of Cicero and Glenn. Neither Crawford nor his secretary seemed to have a very clear recollection of what was said at the February 4 meeting, and much of their testimony is contradictory or inherently far less credible than the tetstimony of Cicero and Glenn. Indeed, Crawford was engaged at the meeting of February 4 in acting out a patent contradic- tion. Although he pleaded lack of authority as a reason for not recognizing the Union, he made it quite evident that neither he nor the Roberts organization wanted to deal with a union, and that the Union would not be recognized unless it won an election. In fact, Crawford was simply stalling for time. Whether or not he had authority to recognize the Union , he could have himself examined the cards to determine at least whether the Union had a majority but this he carefully refrained from doing, hiding all the time behind his alleged lack of authority. Crawford's secretary was an even less reliable and candid witness than her employer, and her lack of candor was manifested from the very moment she took the witness stand. When asked to state the capacity in which she was employed, she stated only that she was Crawford's secretary but later on in her examination she admitted that she was also the plant bookkeeper and that she was familiar to some extent at least with the employees' signatures. It is safe to conclude that whether or not she checked any records in connection with her examination of the union authorization cards she went through them with sufficient thoroughness to assure herself that the signatures looked like those of the plant employees, whose number was, after all, very small. She must also have communicated to Crawford subsequently the impressions she had received from her examination of the cards. Cicero and Glenn left the meeting of February 4 with the understanding that Cicero would call Crawford on Saturday, February 6, to ascertain what instructions he had received from his superiors. When Cicero finally got to talk to Crawford on the telephone- on Saturday, he failed to secure any assurance that the Union would be recognized. According to Cicero, Crawford told him that he had contacted his superiors, and that after investigating the reputation of the Union "they had decided to fight the union." Cicero also testified that Crawford said also something about an election, and that "he had talked to his employees and they didn 't want a union." Crawford's own version of this same telephone conversation was that he told Cicero that if there were an election in the plant the Union would find that it did not have a majority, and that when he referred to his investigation of the Union's reputation, Cicero remarked that he was not trying to sell him a bushel of peaches, but was demanding recognition. Crawford explicitly denied that he told Cicero that his superiors intended to fight the Union but this is precisely what they did. As in the case of the testimony relating to the meeting of February 4, I do not credit Crawford's testimony concerning what he said in his telephone conversation of February 6 with Cicero when it diverges from the testimony of the latter. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the telephone conversation with Crawford, Cicero also asked for the name of his immediate superior and Crawford told him that he was'a Mr. Roberts, Senior, of C. R. Roberts & Company. That same day Cicero attempted to reach Roberts, Senior, by telephone but succeeded only in talking to his son, Roberts, Junior. Cicero explained to the latter the purpose of his contact with Crawford, and told him also that if the Union were not recognized he would have no alternative but to file charges against the Company. Roberts, Junior, told Cicero that he would pass on to his father what the latter had told him, and that he would have his father call him on Monday. But neither Cicero nor Glenn ever heard again from any repre- sentative of Universal Metal. B. Crawford's meeting with the employees on February 8 On Monday, February 8, toward the close of the day shift at 4:30 p.m., General Foreman Ben Tucker asked the employees to attend a meeting in the office, which would be addressed by Crawford. In a little while Crawford came in, sat down in a chair, and talked to the employees. According to Keith D. (Jack) Shaw, one of the three employee witnesses who testified about the meeting-the other two were Ernest Alvarez and Cauliflower-Crawford seemed to be in constant movement while talking to them. "Well, he sat down," testified Shaw, "and he said, `You boys decide you want a union in this place?' and he is going back and forth on his chair. I thought he was a jet pilot there for awhile there, going to take off." According to Shaw, Crawford then continued as follows: He said "Well, if there had been any beefs, you should have came to. me or you should have went to Ben Tucker first and then come to me." He says, "Do you know what a metal finisher is making?" Nobody answered. He said, "Well, there is not a skilled laborer in this plant, other than Mr. Tucker and Hogan." He says, "I am paying you more than the union would pay you." He says, "If they come in here, you are unskilled labor, you will probably start at a dollar and a quarter an hour," and he looked around and he said, "I hear you boys wanted a break." He said, "I am more than fair to you. You get all your coffee breaks when you want them, you smoke when you want them," and he says, "Overtime, you get a lot of over time." He says, "If you want it there is over time to be had. If you don't want it, you don't have to have it." He says if the union comes in, he says, "The over time will be cut down" and precisely at that time, there was three shifts running. They would probably put on four shifts, that is to my knowledge, to cut out the over time, and he hashed this back and forth, and then he says, "It there any question brought up?" And then there was a question brought up by Mr. Cauliflower about some over time,5 and he said, "You should talk to Ben Tucker first, and if you don't get any satisfaction, then you should come to me." Then in response to further questions as to whether Crawford had said anything else at the time Shaw also testified that Crawford had also said: "I never belonged to the union and I don't want the union in here. I would close my doors before the union would come in here. . . . There was union cards that were laid in front of me. I don't know whose names are on them, and I don't care to know whose names are on them." The testimony of Alvarez was substantially to the same effect as that of Shaw, although it is somewhat difficult to follow because of his obvious lack of mastery of the language. On his direct examination, Alvarez testified with respect to Crawford's remarks at the meeting as follows: Q. Do you remember what Mr. Crawford said on this occasion? A. Well, I was one of the last ones, employees, to get in the place. I saw Mr. Crawford had his chair turned around. He was sitting down talking to the people and he says that he knows that we are going to bring the union and that he knows too who signed the cards already; he says, "What do you want with the union? You have already here everything." He says you want the union over here? You are not skilled people. You are going to make at least $1.25 an hour. He says, "You are asking for a break, you can get a break any time you want." He means about a cup of coffee we get over there, and he asked about some workers over there, there they are helping in the place, two 6 Cauliflower had asked why he had not been paid for a half hour's overtime which he claimed to have worked on Saturday. UNIVERSAL METAL FINISHING 143 guys, was Troy Lea,6 and he says they were happy over here, the guys answer yes, and he says, "Well, I start working in the company like most, and now I have this position." Q. Were your hours of work discussed in any way? A. He told us, we are going to put the union in, we are going to start at $1.25 an hour. Q. Did he discuss the hours? A. The hours, no, he didn't say-I don't remember exactly. Q. Over time in anyway? A. No, he don't say anything about- However, during his cross-examination, when he was again asked whether Crawford had said anything about overtime, Alvarez replied that Crawford had told the employees that "we are not going to get more overtime." Although he had not mentioned the subject of overtime in his prehearing affidavit, there is no good reason to doubt Alvarez' testimony on this point, for it is quite consistent with the testimony of the other witnesses who heard Crawford's remarks, and it is indeed consistent with Crawford's own testimony. In any event, the mere failure of a witness to mention a remark in a statement does not establish that the remark was not made, for every statement is not necessarily complete. Perhaps the most complete account of Crawford's remarks at the February 8 meeting was supplied by Cauliflower who, on his examination, testified as follows: Q. Will you tell me what Mr. Crawford said as far as you can recall? A. Yes, sir. When we were all in the office, first Mr. Crawford started with, "So you want a union. I thought we had a shop where that a union was not needed and that if you had problems you could discuss them with Mr. Tucker. If you didn't get satisfaction with him, you could see me." He says, "I never belonged to a union, therefore had nothing to do with the union. I don't want no union and it will be contested. It will be voted on in the shop whether or not we have a union." He said that he thought we were getting good wages, that union scale for platers, top scale was $2 per hour, and he didn't have a plater in the shop. At that time I was getting $2 an hour. He said for union rackers, unrackers, union scale was $1.25 to $1.35 an hour. This is what we would get, this is what we would get if the union comes in the shop. Then, he said "We are all so liberal here, with overtime. You men get over- time when you want to." He says, "If the union gets in this will be eliminated, possibly through working a fourth shift," or, anyhow, over 40 hours would be eliminated. He asked the question there, "You get coffee breaks when you want them, you smoke when you want them." He said "This will be eliminated if the union get in." Q. Did he mention union cards at any time, Mr. Cauliflower? A. Yes, sir. He said, "You men have signed cards for the union." He says, "I have seen the cards." Whether or not he had seen each name on the card, I don't know, but he said he had seen the union cards, and he said it didn't make any difference to him who had signed them. During his direct examination, Crawford himself gave an account of his remarks at the meeting of February 8 that was characterized by two qualities: brevity and generality. Thus he testified that when he called the men in he told them merely that he had been surprised to find that they wanted a union, since "they" had been fair and liberal with everyone in helping them with their problems and in giving them raises; that the employees could even work their way to the top, and become plant manager like he had; and that when one of the employees had explained that he had signed a union card in order to get more money, he had suggested that he "check and find out what union minimums and maximums were." During his cross-examination, Crawford supplied, however, much more illuminating detail con- 9 The "two guys" were Roy Lea and Troy Lea, both of whom are Universal Metal em- ployees. As will hereinafter be related, both of them signed union authorization cards at the request of Cauliflower but they testified at the hearing that they were induced to do so by representations that were not true. The record shows also that Troy Lea was acting as a foreman at the time he signed his union authorization card. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning what he had actually said during the meeting of February 8, and these details bring his own version of his remarks far closer to the versions of the employees who heard his talk. Thus Crawford admitted during his cross-examination, after repeating the gen- eralities he had given during his direct examination, that he had reminded the employees of the loans made to them in the past when they had been faced with garnishment of their wages; that he had reminded them that they were working a lot of overtime; that he had been fairer to them than a union could be. After this, the cross-examination continued as follows: Q. Now, did you ask them if they had checked to find out what union maximum was, is that correct? A. Both maximum and minimums were. Q. Did you mention what the going rate was for platers during this meeting? A. I did not. Q. Did you say anything at all about platers, wage rates? A. I think I stated the fact that we were paying above the required scale. Q. Above what would be union scale? A. Yes. Q. Did you tell them that you didn't have a qualified plater in the plant, or several- A. I told them I didn't think there was a qualified hard coater in the plant. Q. Qualified what? A. Hard coater in the plant. Q. You told them that the employees would be rackers? A. I didn't tell them the employees they had because anybody is- Q. Did you mention any wage rates of rackers during this conversation? A. I don't think I did. Q. So, all you did was mention platers but you never mentioned rackers? A. I didn't mention platers to the extent of wage. Q. But when you were talking about checking the union scale, were you referring to platers or rackers? A. I checked both. Q. So, you mentioned to check the union's-that they should check them9 A. That they should check them. Q. For both platers and rackers? A. That is right. Q. And you never mentioned anything about the rates? A. I didn't indicate the wage, no. Q. But you indicated, though, your company was paying in excess of the going rate? A. That's right. Q. Of what the union wage was? A. That's right, of the going rate. Q. Did you discuss coffee breaks at all during this meeting? A. Yes, I told them that their coffee breaks were always liberal; they were allowed to have their coffee whenever they felt like it. We put a machine in the back for the employees. Whenever they want to have coffee or cigarettes- I mean, it was always there for them. Q. You told them if the union came in they might not get these breaks? A. I didn't tell them this because I am not the person to make this decision. Q. Did you tell the employees during this meeting that "I didn't make the decision if you have coffee breaks"? A. I just told them how liberal we were. I didn't specify that they could have coffee or that they couldn't have coffee or cigarette breaks because that is not my decision, but I did mention the fact that we were very liberal with it at the present time. [Emphasis supplied.] Of course, neither Crawford nor the employees who testified concerning his talk at the meeting of February 8 purported to relate his exact words. Thus, he may have said precisely that wages would be reduced if the Union came in or that overtime would be cut down by the establishment of a fourth shift, or that the coffee breaks would be eliminated. He may have discussed these subjects in terms of possibilities if the employees supported the Union. But they understood his remarks as threats of reprisals, which they clearly were, for Crawford and his superiors had it in their power to convert the possibilities into realities . In his own testimony, moreover, Crawford made it clear that he stressed to the employees that he was talking to them about the privileges which they were enjoying "at the present time"; namely, for the UNIVERSAL METAL FINISHING 145 time being. The clear implication of this was that those privileges which they then enjoyed might be taken away. Thus Crawford was reminding them not only of the benefits which they were presently enjoying but he was also engaged in an attempt to frighten them by raising the spectre of the loss of these benefits. This attempt of Crawford was made, furthermore, in the context of a union orga- nizational campaign, which Crawford had every reason to believe had already suc- ceeded in enlisting the support of a majority of the employees, and which, in fact, as shown hereinafter, had enlisted the support of a majority of the employees. In the context of this situation, it is plain that Crawford was engaged in an attempt to dissipate the Union's majority by inducing withdrawals from the Union. This was in itself an act of interference with the organizational rights of the Respondent's employees, akin to the circulation of a withdrawal petition. Thus, even if the con- tents of Crawford's talk could not be said to contain any threat of reprisal or promise of benefit, it would constitute an unfair labor practice. C. The activities of Ben Tucker On February 9, which was the day after Crawford's talk, General Foreman Tucker seems to have seized every opportunity that arose in the course of the day's work to subject some of the signers of union authorization cards to what might be described as rhetorical interrogation concerning their union activities. The adjective "rhetorical" would seem to be appropriate because Tucker clearly must have known by this time who the union adherents were, and his objective was no doubt simply to needle them and throw them off balance. Thus Tucker asked Shaw, Alvarez, and Cauliflower, as well as a fourth employee, Frederick L. Slaughter, whether they were going to the union meeting that day, or whether they had signed union cards, and in the case of Cauliflower he even asked whether Cauliflower knew who was going to union meet- ings. Whenever possible, Tucker seems to have attempted to make his questions sound casual, or to make it appear that he was not really in earnest. Thus, he asked Shaw whether he was not going to the union meeting only after he had asked Shaw to work overtime, and Shaw had told him that he had to go home. When Tucker approached Alvarez-the approach seems to have been made in the men's room in this instance-he even attempted to set Alvarez' fears at rest. As Alvarez testified with respect to this occasion: "Mr. Ben Tucker, he is kidding, `How is going the union?' I said, `Well, we are going to get the union,' and we started talking, that's all." Were it not for the events of the previous day, Tucker's rhetorical interrogation would not amount to very much but, coming immediately after Crawford's talk, it must necessarily have had the effect of making the interrogated employees still more uneasy. Tucker was also involved, moreover, in two incidents of a far more serious nature than his attempts at interrogation. In the case of Alvarez, after asking him whether he had been to the union meeting, and after receiving a reply in the affirmative, Tucker entered into further conversation with Alvarez, and ended up by offering him a raise if the Union did not "get in." When Tucker asked Alvarez why he was for the Union, Alvarez replied that the employees needed a raise "to make a better living." Tucker's comment on this was "bullshit." But, as Alvarez credibly testified, Tucker continued nevertheless as follows: "You don't get the union, I can give you a raise, but you get in the union, I don't give you a raise because you are going to make each other $1.25 an hour." .. . He said-I told him about-I would like to make $2 an hour, and he says, "All right, if we don't get in the union." Thus Tucker combined the threat of a reduction to $1.25 an hour if the Union came in with the promise of $2 an hour if the union effort failed. The other incident in which Tucker was involved shortly after the union meeting of February 9 arose from an attempt to garnishee Cauliflower's wages. As is evident from Crawford's own testimony, garnishment was not a rare occurrence at the Universal Metal plant, and it had been customary to help the employee who was being threatened with garnishment by making a loan to him. But Cauliflower was not shown such consideration on this occasion. Tucker threatened him with dis- charge, and showed his union animus by adding, "Union or no union." He even invited Cauliflower to go to the Board for all the good that it would do him. I do not credit Tucker's denials and explanations. He made it quite evident while he was on the witness stand that he was testifying in accordance with the rules of logic and the necessities of the situation rather than in accordance with actual recol- 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lection. The testimony that he gave was also either inconsistent or inherently incredible. Tucker appeared in a particularly bad light as a witness in the testimony that he gave concerning a conversation with Slaughter, as follows: Q. Did you ever have a conversation with a Mr. Slaughter, at any time, con- cerning the union? A. I can't recall, no sir. Q. Did you have any conversation in February with Mr. Slaughter concerning whether or not he signed a card for the union? A. No, sir, I did not. [Emphasis supplied.] It is evident that Tucker, Hamletlike, could not quite make up his mind whether to recall or not to recall his conversation with Slaughter. As for the testimony of Tucker that strains credulity, there are many illustrations. It is certainly difficult to believe that a day after Crawford's talk the employees would have excused themselves from working overtime by explaining that they had to attend a union meeting. Tucker discredited himself to an even greater extent as a witness by testifying that he never told Crawford that the employees could not work overtime because they had to go to a union meeting; that, although he saw someone distributing literature outside the plant, he made no effort whatsoever to find out what that literature was, although no distribution of literature had ever occurred at the plant before; and, finally, that he never discussed the Union with Crawford. Whatever credit Tucker had left as a witness, he undermined by denying flatly that he had discussed union cards or union literature with any other employee than Alvarez, for he had given a prehearing affidavit in which he had deposed that when employees (in the plural) had asked him whether they should sign union cards "I told them this was up to them, and I couldn't tell them one way or the other." D. The validity of the Union's majority If the union representatives had obtained eight valid authorization cards before they visited Crawford at the plant on February 4, the Union was entitled to recogni- tion as the majority representative of the 15 employees in the bargaining unit. Counsel for the General Counsel offered in evidence 10 union authorization cards. One of the signers, Ernest Alvarez, was, apparently, so enthusiastic a union adherent that he had signed a second union authorization card after he had already signed one on an earlier date because he feared that Glenn may not have received his first card. The second card signed by Alvarez must be disregarded, of course, and this leaves the other nine authorization cards for consideration. Of these nine cards, seven were signed and dated by the employees whose signa- tures they bear, and there is no good reason to doubt the genuineness of their signa- tures or the correctness of the dates. These seven cards are those of Cauliflower, Roy Lea, Troy Lea, Herston Smith, Harry Fraley, Ernest Alvarez, and Gary Neil Sewards. All seven of these cards were signed on January 30, except Cauliflower's, who had signed, of course, much earlier than this date, and except Smith's, who signed his card on February 1. All seven of the card signers were, moreover, witnesses at the hearing, and testified concerning the signing and dating of their cards with the sole exception of Sewards, who did not himself testify. However, Sewards' signature was solicited by Cauli- flower, who was, of course, a witness, and Cauliflower testified without contradiction that he actually saw Sewards affix his signature to the authorization card on January 30. Counsel for the Respondent objected to receiving Sewards' card in evidence on the ground that he would have no opportunity to cross-examine Sewards but he did have an opportunity to cross-examine Cauliflower on the basis of whose testimony Sewards' card was admitted into evidence, and this opportunity was suffi- cient. The execution of Sewards' card having been properly established, it was up to the Respondent to go forward with evidence impugning the validity of the card.? The Respondent made no application, however, for any subpena to compel the attendance of Sewards as a witness. 7 See Irving Taitel, et al., d/b/a I. Taitel and Son, 119 NLRB 910, enfd. 261 F. 2d 1 (C.A. 7), cert. denied 359 U.S. 944; N.L.R.B. v. Howard-Cooper Corp., 259 F. 2d 558 (C.A. 9). The latter case is particularly interesting , since the union majority of one was upheld despite the fact that one of the employees who had signed a union authoriza- tion card did not testify at the hearing due to absence on National Guard duty. How- ever, another employee testified that the absent employee had given him the authoriza- tion card and asked him to bring it to the union meeting, where he had turned it over to a union representative. UNIVERSAL METAL FINISHING 147 The two other union authorization cards in evidence were signed by Shaw and Slaughter, both of whom were witnesses at the hearing and who testified that they signed the cards that bore their signatures. The cards of Shaw and Slaughter were, however, not dated at the time that they were signed, and neither Shaw nor Slaughter had any clear and independent recollection as to when he signed his card. But, despite some confusion in his testimony , it would seem that Shaw signed his authorization card on February 3. Shaw testified that since Cauliflower was out of union authorization cards at the time that he asked him to sign one, he rode down to the union hall with Alvarez where they both signed cards for Glenn. This was the time that Alvarez signed his second card, which is dated February 3. If Shaw signed his card at the same time as Alvarez, he must have done so also on February 3. As for Slaughter, he testified that he signed his union authorization card upon being solicited to do so by Robert Paulson, one of the Universal Metal employees in the bargaining unit, while he was at work on the third shift which ended at 9:30 a.m. On his direct examination Slaughter testified that the solicitation occurred "around the first week of February," and during his cross-examination when he was asked whether the solicitation had occurred Saturday morning, February 6, he answered: "Not for certain, no, I believe it was but I couldn't say for sure." Slaughter's testi- mony in itself leaves open the possibility that he may not have signed his union authorization card until February 6. Cauliflower also gave testimony, however, that has a bearing on this question. He testified that Slaughter's union authorization card, which was turned over to him by Paulson, was among the eight which he then turned over to the Union prior to February 4: If Slaughter did indeed sign his union authorization card before February 4, the union representatives would have had nine such cards when they visited Crawford on February 4, and'if they then had nine such cards, they would certainly have taken them along with them and claimed a majority of nine rather than of eight. I am inclined, therefore, to the hypothesis that Cauliflower was mistaken in testifying that Slaughter's card was among those turned over to the Union prior to February 4. Another possibility is that both Alvarez and Shaw were mistaken in testifying that both of them were together at the union hall when Shaw signed his union authoriza- tion card. The inability to determine with absolute certainty from the record which one of the nine union authorization cards was not in the possession of the union representa- tives on February 4 in no way impairs, however the Union's claim to a majority. Out of 15, eight may not be as big a majority as nine out of 15 but it is nevertheless a majority, and it is established beyond the slightest doubt by the testimony of all the witnesses, including the Respondent's witnesses, that the union representatives had eight authorization cards signed by employees of the Respondent before Feb- ruary 4. They were counted by Crawford's secretary, who attested at least to their number. Whether the union majority was achieved when Slaughter rather than Shaw signed the eighth authorization card would seem to be quite immaterial. Counsel for the Respondent also contends, however, that Cauliflower obtained the signatures to the union authorization cards by misrepresentations. These alleged misrepresentations fall into two basic categories: (1) those relating to the possession of a majority at the time of solicitation, and (2) those relating to the approval, express or implied, of union organization by the employer. All the witnesses called by the General Counsel, except Alvarez and, of course, Cauliflower himself, gave testimony that falls into one or the other or both of these categories. Thus, Roy Lea testified that when Cauliflower asked him to sign his union author- ization card he told him that "Mr. Crawford, Ben and the rest of them knew about the union coming in," and that "all the other members that worked there already signed the cards, all except about three." Troy Lea testified that before he signed his union authorization card he asked Cauliflower whether his boss knew about it, and received from Cauliflower a reply in the affirmative, and the further assurance that "a bunch of the others had done the same," the bunch being "nearly all of them." Fraley testified that when he signed his union authorization card Cauliflower told him "all the boys was signing the card." Herston Smith testified that before he signed his union authorization card Cauliflower told him "everybody had signed but one" and that "Mr. Crawford and Ben knew all about it, and it was okay." Shaw testified that at the time Cauliflower was talking to him about signing a union authori- zation card he told him that "a majority of the employees had signed cards." Finally, Slaughter testified that when Cauliflower gave him a union authorization card to sign he remarked: "Here's the union card, the majority has already signed." 217-919-66-vol . 156-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cauliflower, who was the last one of the General Counsel's witnesses, was faced with this testimony during, his cross-examination but he absolutely denied the repre- sentations attributed to him. He explained, moreover, the procedure followed by him in soliciting signatures to the union authorization cards, as follows: I had the cards with me that I had signed. I explained to these boys that I was working on a majority of eight because I knew. how many cards, active workers were working at the shop. I was working on a majority of eight, and the cards had been in my possession that had been previously signed, and I dis- played these to the boys. I would not have approached Troy Lea with the card for the simple reason that at the time he was acting as a foreman, but I was told by Gary Sewards or Bobby Paulson, that he wanted the card, and sent me to come to his house, and bring me a card, and these two guys went with me to his house and he signed the card without any statement at all. I credit Cauliflower's denials, which carried conviction, and I accept his explana- tion, which indicates at least in part how the employees misconstrued his remarks. In resolving the credibility issue, I do not assume, however, that the witnesses whose testimony does not agree with Cauliflower's were giving deliberately false testimony, or that they had been suborned to commit perjury. The evidence shows that after they had signed their union authorization cards the employees were subjected to pressure by the Respondent, in the person of Crawford, who made quite manifest his disapproval of the Union, and his displeasure with them. It is quite easy to perceive how in seeking to mend the error of their ways the employees would become convinced that Cauliflower had taken advantage of them in persuading them to sign union authorization cards, and to attribute to him the responsibility for what had happened. It is not without significance that the two types of alleged misrepresenta- tions either singly, or in combination, would furnish the signers of union authoriza- tion cards with perfect excuses for what they had been so foolish as to do. If, when they signed the union authorization cards, the Union already had a majority, they were simply bowing to the inevitable. They would be doing no harm by jumping on the bandwagon. If their boss actually knew about the union organizing effort, and it met with his approval, they were only being good employees by signing union authorization cards. Although I credit Cauliflower's denials, it is perhaps appropriate to add as an additional ground for upholding the validity of the authorization cards that the numerical representations have not been shown to be false, and could not, therefore, be said to constitute material misrepresentations, even if they had been made. I have elsewhere expressed the view that an explicit representation by a solicitor of union authorization cards that everybody else had signed such cards, although this was patently untrue, was a material misrepresentation.8 In the present case, however, the alleged numerical representations are either not explicit or not shown to be false. It would not seem to be a misrepresentation for a solicitor of union authorization cards to declare that "a bunch of the others had done the same," or that "all the boys was signing the cards" (these statements would seem to be mere puffs or sales talk). In the same category would seem to fall even the representation that "all the other members that worked there already signed the cards, all except about three." [Emphasis supplied.] As for the alleged representations to Shaw and Slaughter that a majority of the employees had already signed union authorization cards, these representations could very well have been true at the time they were made. The order in which the union authorization cards were signed in the present case is not established by the record, except that it is shown that Cauliflower signed before any- one else, and that Smith, Shaw, and Slaughter were the last three signers. As for the alleged representations that Crawford and Tucker knew that the Union was coming in, I do not share the view expressed by counsel for the General Counsel that this, too, would not constitute a material misrepresentation. This view is based on the evidence that Crawford and Tucker in fact knew that a union representative was distributing cards and literature at the back of the plant. But this limited form of knowledge would not have justified Cauliflower in making the alleged representa- tions. Obviously, what an employee who was asked to sign a union authorization card would want to know would be whether he had anything to fear in the way of employer reprisals, and the alleged representation, in the context in which it would be made would carry by necessary implication the assurance that the employer not only knew but approved. Moreover, at least one of the employees claimed to have S See my Decision in TMT Trailer Ferry, Inc., 152 NLRB 1495. However, the Board decided this case on an alternative ground ; namely, that the two employees to whom the misrepresentations had been made had revoked their authorization cards. UNIVERSAL METAL FINISHING 149 been told explicitly that such approval had been given. It is not without significance, however, that only two of the nine employees who signed union authorization cards- Roy Lea and Smith-even claimed that Cauliflower made representations of employer knowledge of his activities. If he had actually adopted such a tactic, it would be reasonable to expect that he would have made use of it in the case of many more prospects, if not in the case of all of them. It is also not without significance that one of the two employees, Roy Lea, was held up by Crawford as a model employee in his talk of February 8 to all the employees. Counsel for the Respondent makes the final argument that even if it be assumed that the Union had eight valid authorization cards on February 4, the Respondent. would not have violated the Act because (1) Crawford told the union representatives that he had no authority to deal with them; (2) the union representatives accepted this representation and agreed to give Crawford time to get in touch with his superiors; (3) Crawford stated to the union representatives that he doubted the Union's majority status and wanted an election; and (4) that he did not then engage in any activity designed to destroy the Union's majority. It is not possible to accept, however, either the factual or legal assumptions upon which these contentions are based. It is true that Crawford claimed to lack authority to deal with the union representatives but this was only a pretense, and wholly inconsistent, as already pointed out, with his demand of an election, which itself was a refusal to deal with the Union on the basis of its claimed majority. It is also true that the union representatives when they were refused recognition agreed to get in touch with Crawford again but, clearly, in the circumstances they had no alternative. Finally, the plea of good faith must also be rejected, since Crawford and Tucker did engage in activities designed to undermine or destroy the Union's majority status. Since the union representatives had a majority as of February 4 when they requested recognition, and recognition was in; fact denied as of this date, the Respondent's violation of Section 8(a)(5) of the Act stems from this date. IV. THE REMEDY In view of the scopes of the Respondent's acts of interference, restraint, and coercion, as well as its violation of Section 8(a)(5) of the Act, I shall recommend a broad form of cease-and-desist order. As is usual in cases involving violations of Section 8 (a) (5) of the Act, the recom- mendation will include an order to cease and desist from failing or refusing to bargain collectively with the Union with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and to bargain, on request, with the Union, as the exclusive representative of its employees in the appropriate bargaining unit, and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Universal Metal Finishing, a division of C. A. Roberts Co., is an employer engaged in commerce, or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 2. Metal Processors' Union, Local No. 16, International Union of Doll & Toy Workers of the U.S. and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees with reprisals, including discharge, termination of operations, or unfavorable changes in working conditions, if they became or remained members of the Union, or gave any assistance or support to it; by promising an employee a wage increase if he refrained from becoming or remaining a member of the Union, or giving any assistance or support to it; by interrogating its employees concerning their union membership, activities, or desires; and by seeking to induce its employees to withdraw from the Union, although a majority of them in an appropriate bargaining unit had designated the Union as their representative for the purposes of collective bargaining, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a) (1) of the Act. . 4. All production and maintenance employees of the Respondent at its Chicago, Illinois, plant, exclusive of office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since February 4, 1965, the Union has been the exclusive repre- sentative for the purpose of collective bargaining of a majority of the employees in the aforesaid bargaining unit, and by virtue of Section 9(a) of the Act, has been, 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and is now, the exclusive representative of all the employees in the aforesaid bar- gaining unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 6. On February 4, 1965, and continously thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive representative of all the employees in the aforesaid bargaining unit with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 7. By failing or refusing to bargain collectively with the Union, the Respondent _ has committed an unfair labor practice affecting commerce within the meaning of Section 8(a) (5) of the Act. RECOMMENDED ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Universal Metal Finishing, a division of C. A. Roberts Co., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with reprisals, including discharge, termination of operations, or unfavorable changes in working conditions, if they become or remain members of the Union, or give any assistance or support to it; promising employees wage increases if they refrain from becoming or remaining members of the Union, or giving any assistance or support to it; interrogating its employees concerning their union membership, activities, or desires; and seeking to induce its employees to withdraw from the Union in order to undermine or destroy the majority status of the Union. (b) Failing or refusing to bargain collectively with the Union with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive repre- sentative of the employees in the bargaining unit hereinbefore described as appro- priate and embody in a signed agreement any understanding which may be reached. (b) Post at its place of business and plant in Chicago, Illinois, copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for Region 13, shall, after being signed by the Respondent's author- ized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Decision, what steps the respondent has taken to comply therewith.10 0If 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. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 10 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with reprisals, including discharge, termination of operations, or unfavorable changes in working conditions if they become or remain members of Metal Processors' Union, Local No. 16, Interna- tional Union of Doll & Toy Workers of the U.S. and Canada, AFL-CIO, or any other labor organization. PIEDMONT WOOD PRODUCTS CO., INC. 151 WE WILL NOT promise any employees wage increase if they refrain from becoming or remaining members of the Union or any other labor organization. WE WILL NOT interrogate our employees concerning their union membership, activities, or desires. WE WILL NOT seek to induce our employees to withdraw from the Union in order to undermine or destroy the majority status of the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor orga- nizations, to join or assist Metal Processors' Union, Local No. 16, International Union of Doll & Toy Workers of the U.S. and Canada, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL, upon the request of Metal Processors' Union, Local No. 16, Inter- national Union of Doll & Toy Workers of the U.S. and Canada, AFL-CIO, bargain collectively with the said Union with respect to rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an agreement is reached, we will embody the terms of such agreement in an appropriate contract. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by agreements in conformity with Section 8(a)(3) of the Act. UNIVERSAL METAL FINISHING, A DIVISION OF C. A. ROBERTS CO., 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 provisions, they may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572. Piedmont Wood Products Co., Inc. and International Union of District 50, United Mine Workers of America, Petitioner. Case No. 7-RC-6993. December 17, 1965 DECISION DISMISSING PETITION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Harry D. Camp of the National Labor Relations Board. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Employer filed a brief. Pursuant to the provisions- of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three member panel [Chairman McCulloch and Members Brown and Jenkins]. Upon the entire record in this case, the Board finds : Piedmont Wood Products Co., Inc., hereinafter called the Employer, is a Mississippi corporation doing business only in Detroit, Michigan, where it establishes its plant in order to be closer to its source of supply and its customers. The Employer is engaged in the business of manu- facturing and selling box spring bedframes made from Canadian 156 NLRB No. 27.