Borden Cabinet Corp.

BORDEN CABINET CORP. 1373 Borden Cabinet Corporation and International Union of District 50, United Mine Workers of America. Cases 9-CA-3525, 3603, 9-RC-5577, and 9-CA-3646. June 24, 1966 DECISION AND ORDER On March 9, 1966, Trial Examiner John H. ,Eadie issued his Deci- sion in the above-entitled proceedings, 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 cer- tain affirmative action, and recommending further that the election held on March 5, 1965, in Case 9-RC-5577,1 be set aside and a new election held, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that those allegations of the complaint be dismissed. Thereafter, General Counsel filed limited exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed an answering brief in opposition to General Counsel's limited exceptions. 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 these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following addi- tions and modifications. Since July 1963 the Union has been seeking to organize Respond- ent's employees and Respondent has opposed such action by unlawful means. On September 14, 1964, ,the Board, in its Decision and Order directing a second election,2 found that Respondent had violated Sec- tion (8) (a) (1) and (3) by illegal interrogations, threats, and dis- charges of employees. Further, in Cases 9-CA-3397 and 9-CA-3418, the Trial Examiner found additional violations of Section 8(a) (1), (3), and (4) occurring between July 13 and December,11, 1964, and involving a failure to reinstate illegally -discharged employees. No exceptions were filed to the Trial Examiner's Decision. 'Pursuant to the Board's Decision , Order, and Direction of Second Election of Sep- tember 14, 1964, 148 NLRB 996. 2148 NLRB 996. 159 NLRB No. 99. 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record in the instant case establishes that Respondent has con- tinued to add to its long list of unfair labor practices. Thus, shortly before the second election on March 5, 1965, the following incidents took place. Production Manager Fromme, during a conversation with employee Herman Miller, alluded to the recent return to work of Miller's wife, after a 4-day layoff, saying "Herman your wife is back to work now . . . how does she feel about the election" and "[S]he is back to work now ..: we are having an election coming up in a few days ... we need every vote we can get ... tell her to think twice before she votes." Foreman Seger questioned employee Rockey as to whether she had changed her mind about the Union. So did General Manager Korff, who added that he could get a couple of affidavits saying that she had been campaigning during working hours; also that Rockey's work was "a lot better" since she was rein- stated to her job but that "I can't say that for some of the others but ... the cease and desist order wouldn't last forever." We affirm the Trial Examiner's findings that the foregoing statements by Respond- ent's representatives were violative of Section 8(a) (7). Moreover, we find additional violations of Section 8(a) (1) in Fromme's promise of benefit to employee Blatt if he voted against the Union and a threat of layoff if he did not, and in Respondent's announcement on March 2, 1965, 3 days before the election, of increased insurance bene- fits. The latter was a patent attempt by Respondent to thwart the holding of a fair election. The foregoing unfair labor practices, considered in the light of Respondent's earlier history of union animus and unfair labor prac- tices, convince us, and we find, that Respondent's overall conduct evinced a rejection of the collective-bargaining principle and that its refusal on May 24, 1965, to recognize and bargain with the Union was in bad faith and not because of a good-faith doubt of the Union's majority. Contrary to the Trial Examiner, we find that the filing by the Union of a representation petition seeking an, election, and that the results of, the election which we have set aside, did not excuse Respondent from its duty to recognize and bargain with the majority union.3 Accordingly, we find that Respondent's refusal to recognize and bargain with the Union is violative of Section 8 (a) (5) of the Act .4 As we have found that Respondent violated Section 8(a) (5) of the Act, we shall order Respondent to recognize and bargain with the Union as the collective-bargaining representative of its employees in the appropriate unit.5 3 Frantz and Co., 361 F.2d 180 ( C.A. 7) ; Bernet Foam Products Co., Inc, 146 NLRB 1277. 4 Boot-Ster Manufacturing Company, Inc, 361 F 2d 325 (C A 6 , 1966). 5 As we have ordered Respondent to recognize the Union as the collective-bargaining representative of its employees , we shall dismiss the petition in Case 9-RC-5577. BORDEN CABINET CORP. ' 1375 [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following paragraph 1(a) to the Trial Examiner's Recommended Order, renumbering paragraphs 1(a) and 1 (b) as new paragraphs 1(b) and 1(c), respectively; [" (a) Refusing to bargain collectively with International Union of District 50, United Mine Workers of America, as the exclusive repre- sentative of its employees in the following appropriate unit : ["All production and maintenance employees of Respondent, employed at its Borden, Indiana, plant , exclusive of office clerical employees, guards, professional employees, and all supervisors; as defined in the Act." [2. Add the following paragraph 2(a) to the Trial Examiner's Recommended Order, renumbering paragraphs 2(a) and 2 (b) as new paragraphs 2(b) and 2(c), respectively: [" (a) - Upon request, bargain collectively with International Union of District 50, United Mine Workers of America, as the exchisiv'e' bargaining representative of Respondent 's employees in the unit found appropriate, with respect to rates of pay,,-wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement." [3. Delete the last paragraph of the Trial Examiner's Recom mended Order. [4. Insert in the notice attached to the Trial Examiner 's Decision' marked "Appendix", the following as the first indented paragraph : ["WE WILL, upon request, bargain collectively in good faith with International Union of District 50, United Mine Workers of America, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hour's of employment, and other conditions of employ- ment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is : ["All production and maintenance employees of Respondent, employed at its Borden, Indiana, plant, exclusive of office clerical employees, guards, professional employees, and all supervisors as defined in the Act."] [The Board dismissed the petition in Case 9-RC-5577 and pro-_ ceedings held in connection therewith.] 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE , Upon charges filed on March 30 and May 21, 1965, by International Union of District 50, United Mine Workers of America, herein called the Union, the General Counsel of the National Labor Relations Board issued a complaint, dated June 2, 1965, in Case 9-CA-3525 against Borden Cabinet Corporation, herein called the Respondent, alleging that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the National Labor Relation Act, as amended. On or about June 7, 1965, the Respondent filed.an answer in which it admitted the jurisdictional allegations of the complaint but denied commission of any unfair labor practices. Upon a charge filed on June 1, 1965, in Case 9-CA-3603, the General Counsel issued an order consolidating Cases 9-CA-3525 and, 9-CA-3603 and an amended complaint, dated June 30, 1965, alleging violations of Section 8(a)(1) and (5) of the Act. The Respondent's answer to the amended complaint filed on or about July 8, 1965, denied the com- mission of any unfair labor practices. On August 13, 1965, the Board issued an order directing a hearing in Case 9-RC-5577 in order to resolve the Union's objections 3, 4, and 7. By order, dated August 19, 1965, the Regional Director consolidated Case 9-RC-5577 with Cases 9-CA-3525 and 9-CA-3603. Upon a charge filed on July 22, 1965, in Case 9-CA-3646, the General Counsel issued a complaint, dated September 30, 1965, alleging violation of Section 8(a)(1), (3), and (4) of the Act. The Respondent's answer to this complaint, filed on or about October 12, 1965, denied the commission of any unfair labor practices. By order dated November 8, 1965, the Regional Director consolidated Case 9-CA-3646 with Cases 9-CA-3525, 9-CA-3603, and 9-RC-557. Pursuant to notice, a hearing was held on December 13, 14, and 15, 1965, at Louisville, Kentucky, before Trial Examiner John H. Eadie. After conclusion of the hearing the General Counsel and the Respondent filed briefs with me. Both from the entire record in the case and from my observation of the wit- nesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Indiana corporation, is engaged in the manufacturing of wood cabinets and furniture at its plant in Borden, Indiana. During the period of 12 months prior to September 30, 1965, the Respondent had a direct outflow of its products in interstate commerce, valued in excess of $50,000, which it sold and shipped from its said plant directly to points outside the State of Indiana. During this same period the Respondent had a direct inflow of goods and materials in interstate commerce, valued in excess of $50,000, which were purchased and shipped directly to it from points outside the State of Indiana. The complaints allege, the Respondent's answers admits, and I find, that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED International Union of District 50, United Mine Workers of America, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background On September 14, 1964, the Board issued a decision in Case 9-CA-2969,' involv- ing the same parties as the instant case herein. The Board found that the Respond- ent, had violated Section 8(a),(1) and (3), set aside an election which had been held on November 30, 1963, in Case 9-RC-5577, and directed a second election. The second election was conducted on March 5, 1965. Out of 247 valid votes counted, the Union received 119 votes. On March 12, 1965, the Union filed objections to conduct affecting the results of the second election? I Borden Cabinet Corporation, 148 NLRB 99,6. 9 Facts upon which the Union 's objections 3, 4, and 7 are based are alleged as violations of the Act in the instant proceeding. BORDEN CABINET CORP. 1377 Cases 9-CA-3397 and 9-CA-3418 were litigated at a hearing held on April 21 and 22, 1965, and involve the same parties herein . On December 21, 1965, Trial Examiner Wellington A. Gillis issued his Decision wherein he found that the Respondent had violated Section 8(a) (1), (3 ), and (4 ) of the Act. B. Interference, restraint, and coercion Employee Mabel Miller was laid off by the Respondent for 4 days starting on January 29, 1965. On or about February 29, 1965, employee Herman Miller, husband of Mabel Miller, had a conversation with Othmar Fromme, production manager of the Respondent. Fromme walked up to Miller and said, "Herman your wife is back to work now . how does she feel about the election. . Miller replied, "Well that's a personal opinion of her's." Fromme then said, "Well, she is back to work now . . . we ate having an election coming up in a few days, March the 5th, . we need every vote we can get ... tell her to think twice before she votes." 3 In addition to illegal interrogation, Fromme's remarks contain an implied threat to lay off Mabel Miller again if she voted for the Union. Accordingly, I find that Fromme's interrogation and threat of reprisal were violative of Section 8(a)(1) of the Act. As related above, the second election in Case 9-RC-5577 was held on March 5, 1965. Before the election, Louis Korff, the Respondent's general manager, made two speeches to the assembled employees. The first speech was made on or about March 1 and the second on March 4. Concerning Korff's first speech, employee Carol Rockey testified credibly and without contradiction, ". . he pointed out the good things about the plant and the way they ran it and the bad points about the Union such as dues and that this Union wouldn't be good to represent Borden Cabinet because it was a miner's union and that once the union got you on the hook you couldn't get off. . After Korff's speech and during the same day Rockey had a conversation with Herman Seger, foreman over "Line 2" in the finishing room. Seger asked Rockey if Korff's speech had changed her mind about the Union. She replied that it did not. He then remarked that she was not wearing her union pin. She answered that she was wearing it under her work blouse.4 It is found that Seger's interrogation of Rockey is violative of Section 8(a)(1) of the Act. Some few days after Korff's speech and before the election, Fromme went to Rockey's place of work. He asked her if she had changed her mind about the Union after hearing Korff's speech. She answered, "No." He then said, "I have nothing against you or your work but I have a job to protect." 5 The conversation was interrupted by the appearance of Korff. After Fromme left, Korff asked Rockey what she and Fromme had been talking about. She said, "the union." He asked her if she had changed her mind about it. She replied, "No." Korff stated that he did not want "any campaigning" during working hours. When Rockey asked him if he thought she had been doing this, he answered, "I think I can get a couple of affidavits saying that you have." He said that her work was "a lot better" since she had been reinstated to her job,6 and added, "I can't say that for some of the others but . . . the cease and desist order wouldn't last forever." 7 3 Herman Miller testified credibly to the above Fromme denied the statements at- tributed to him by Miller. His denials are not credited. 4 Rockey testified credibly to the above. Seger denied having any conversation with Rockey about Koril a speech . His denial is not credited. 8 The conversation found above is based upon the credited testimony of Rockey . Fromme denied the remarks attributed to him by Rockey. His denial is not credited. 6 In its decision in Case 9-CA-2969, the Board found that Rockey had been discharged in violation of Section 8(a) (3) of the Act and ordered her reinstatement. 4 Rockey testified to the above. Korff testified that at sometime after the election Rockey asked him if her work was satisfactory, and that he had replied that it was "much better" since her reinstatement. Otherwise Korff denied the remarks attributed to him by Rockey. I credit Rockey 's version of the conversation and do not credit Korff 's denials. 243-084-67-vol. 169-88 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is found that the above interrogation of Rockey by Fromme and Korff con- stitutes interference , restraint, and coercion; 8 and that Korff's statement concerning the Board's cease-and-desist order is violative of Section 8(a) (1) since it is an implied threat of reprisal because of Rockey's -union activity. On March 4 employee John Batt had a conversation with Fromme. Fromme told Batt that the Respondent was considering him for the position of foreman because of his college experience ; that "this management job depended on whether or not the union went in"; and that if Batt was part of management , he would not want the Union in the plant . Batt stated that he was planning on changing his major to architecture when he went back to college . Fromme then said that if Batt did decide to return to college and became an architect and if he did not vote for the Union, the Respondent might hire him; and that if the Union got in the plant, the Respondent would have to lay him off because he was "one of the employees with the least seniority." 8 - I find that, Fromme's remarks were violative of Section 8(a) (1) of the Act in that he made a promise of benefit if Batt voted against the Union in the 'election and a' threat of reprisal if he voted otherwise. .. ' On March 5 Seger told the employees on his line to get cleaned up as it was time for them to vote. When Rockey continued to work, Seger asked her if she was going "to get cleaned up to vote." When she replied that she first was going to knish cleaning a cabinet, he said, "Maybe you had better not vote." 10 The General Counsel contends that Seger's remarks constituted a threat and was violative of the Act. I do not agree. In my opinion the remark is innocuous. . C. Granting of increased insurance benefits It is undisputed that on March 2, 1965, the Respondent posted the following notice to employees on the bulletin boards in its plant: In a memo of March 1, 1965, Management of the Jasper Corporation announced a standardized group insurance' plan for all plants to become effective April 12, 1965. This plan, which includes additional benefits, is a result of a decision made some months ago. After thorough review of all competitive bids by various insurance companies it was decided that the best proposal was received from the- United States Fidelity and Guaranty Company. Effective on April 12, 1965, your group insurance coverage will be increased per the following comparison: Present Coverage Coverage 4/12/65 Daily room and board (pei day) ------------------- $9 00 $12 00 Hospital mateuuty benefit------------------------ 90.00 100.00 In hospital doctor calls (per day) ------------------ ------------------------ 4.00 NoTE -(Malon medical, life insurance, and other coverages will remain the same ) The Respondent is one of a number of wholly owned subsidiaries of Jasper Corporation. James Bateman, manager of the Insurance and Real Estate Depart- ment of the Spring Valley National Bank in French Lick, Indiana, is the insurance manager for all of Jasper Corporation's plants. He testified, in substance, that on August 31, 1964, he decided, that a change was needed in Jasper's insurance pro- gram so as to make uniform the .coverage in all of the plants and to guarantee refunds; that he so notified Jasper on that date; that in the early part of October, 1964, he met with the officers of Jasper for this purpose; that after obtaining price quotations from various insurance companies, on February 17, 1965, he sent a final 8 Rockey also testified credibly that the day before or the morning of the election Korff again asked her if she had changed her mind about the Union and told her that she could be fired for "campaigning on the line . . during working hours." 8 The above conversation is based upon the credited testimony of Batt. Fromme denied categorically the remarks attributed to him by Batt. His denials are not credited. rn Rockey testified credibly to the above. Seger denied having any conversation with Rockey on March 5 about voting. His denial is not credited. BORDEN CABINET CORP. 1379 report to Jasper suggesting a change to United States Fidelity and Guaranty Com- pany; and that he did not know of the election at the Respondent's plant until he visited the plant in the early part of April in order to put into effect the change in the insurance program. Korff testified that he often received "directives" from Jasper concerning changes in policy which were posted on the bulletin boards for employees; that on March 1 or 2 he received a memorandum from Jasper, notifying the Respondent of the change in the insurance program; and that he passed it on to Robert Strange, the Respondent's assistant plant manager, instructing him to follow "the customary procedure and post the notice." Strange testified that he received Jasper's memo- randum in its original form on-March 1, reworded it, and then had the notice to employees posted on the plant's bulletin boards. - In its brief the- Respondent- contends that there are "absolutely no facts" to establish that the Respondent's conduct in arranging for the increased insurance benefits and in notifying the employees of such benefits was undertaken with the intent to interfere with the employee's freedom of choice in the election., I disagree insofar as the timing of the posting of the notice is concerned. Korff and Strange effectuated the posting of the notice to employees either on the same day or the day after receipt of the memorandum from Jasper Corporation. According to them, they merely were following customary plant procedure. Apparently this testimony was offered in explanation of their precipitate action, taking into consideration that the increased benefits did not become effective until almost 6 weeks after the posting. Strange, in addition to his duties as assistant plant manager, handled personnel problems in the plant. The unfair labor practices found above show that the Respondent was concerned about the outcome of the election. In view of these violations of the Act and of the Respondent's past, history, of committing unfair labor practices, I find that the timing of the announcement was decided on in order to interfere with the employees' freedom of choice in the election. It may 'be that Jasper had no illegal intent in the matter. However, this question is irrelevant since Jasper is not a respondent in this proceeding. Accordingly, I find that the Respond- ent's conduct in announcing and granting increased insurance benefits during the pendency of a representation petition was violative of Section 8(a)(1) of the Act. D. The representation case The Board's order of August 13, 1965,.directed that a hearing be held to resolve the issues raised by Petitioner's objections 3, 4, and 7. I have already found that Fromme's statements to Batt on March 4 were-viola- tive of Section 8(a)(1) of the Act. Therefore I shall recommend that objection 3, which covers this conversation, be sustained. The conversation between Seger and Rockey on March 5 has been related and found above. Since I have not found Seger's remarks in this connection to be violative of the Act, I shall recommend that objection 4 be overruled. Objection 7 covers the posting of the notice on March 2. I have also found this conduct to be violative of Section 8(a)(1) of the Act. It will be recom- mended that objection 7 be sustained. E. The layoffs of Mabel B. Miller Miller was hired in February of 1964. She worked on line 1 in the finishing department under Foreman Luther McDonald. She was laid off from work on January 29 for 4 days. Three other employees were laid off, at the same time. At the time Strange told her that there was a lack of work; and that since both she and her husband were working for the Respondent and since her foreman had reported that she was the least efficient in her department, he had decided to select her for layoff. The conversation on or about February 29 between Herman Miller and Fromme has been related and found above. On March 11 Mabel Miller signed an authorization card of the Union. There- after she 'participated in the union campaign. She talked to other employees about the Union and distributed union cards in the plant and on the Respondent's parking lot. She testified at the Board's hearing held on April 21 and 22, 1965, in Cases 9-CA-3397 and 9-CA-3418. 1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At or about 3 p.m. on March 19 Korff gave a speech to the employees. During his speech he said that there would not be any layoffs because "production was good" and there was "plenty of work."" After Korff's speech Miller, Batt, Paul Rockey, and Delbert Bowling were laid off. Strange notified Miller of her layoff, telling her that there was a shortage of work.12 During the same day the Respondent "rehired" employee Lucy Conrad. Miller was recalled to work on March 31. She was laid off again and recalled to work on the following dates: Laid off Recalled May 5------------------------------------------ May 12 May 21----------------------------------------- May 27 July 8------------------------------------------- July 19 When Miller was laid off by Strange on July 8, she told him, "I know why you have been laying me off all these times. It's because I'm for the union." Strange replied, "I don't know your business," 13 and told her that she was being laid off because of a shortage of work. Before and after her layoffs Miller worked 45 hours per week. For the most part she worked in the finishing department, but at times she was transferred to various jobs in the plant. Strange testified that he made the "final decision" on layoffs after receiving recommendations from the foremen and the production manager. He testified without contradiction that employees April Marion, Joyce Thomas, and Vedo Marshall were laid off along with Miller on May 5; that Thomas was recalled on May 10, Marshall on May 11, and Marion on May 13; that before Miller's layoff on May 21, she was transferred to the trim department to avoid a layoff; that she was not laid off until the trim "operation ran out"; that when he notified Marion of her layoff on May 21, she quit; that Delbert Bowling, Paul Rockey, and Herman Miller also were laid off on July 3; and that Rockey was recalled on July 16, Mabel and Herman Miller on July 19, and Bowling on July 22. With respect to the factors taken into consideration in the selection of employees for layoff, Strange testified, "we do not layoff specifically on seniority and I would say that the efficiency, seniority, productivity, and attendance all play a part." Concerning the reasons for the layoffs, Strange testified to the following: The reason for the layoff was that we had switched cabinet models. This began to affect the personnel in the finishing department on that particular line and the model changes were the oil and walnut finish model Number 302 11 The above finding is based upon the credited testimony of Mabel Miller and Batt. Korff denied that he at any time discussed "the prospects for layoffs." Concerning his speech on March 19, he was questioned and testified as follows : Q. And the third speech on March 19th you thanked the employees who voted for the Company? A. Yes sir. Q. As a reward you told them there would be no layoffs? A. No sir. Q. You never said that? A. No sir. Strange testified, "I heard nothing about there not being any layoffs or any promises of no layoffs." Fromme was questioned and testified in this connection as follows : Q. Did you hear Mr. Korff's speeches? A. I heard several of them, yes. Q. And in talking now about the time preceding the election on March 5th, 1965. A. Yes, I heard some of them. Q. In the speeches that you heard, did Mr. Korff say anything about no layoffs? A. No. Not to my knowledge. I never heard him. I believe that Miller and Batt were the more reliable and credible witnesses as to this speech. 22 It is undisputed that on each occasion that Miller was laid off Strange told her that the reason was a lack of work. 18 Miller testified credibly to the above. Strange denied that Miller mentioned the Union. His denial is not credited. BORDEN CABINET CORP. 1381 and the simple printed cabinet that required less people on a particular line than used to work on them. on a printed cabinet we would have an extra operation such as a base coat and on a full fill cabinet we would have a filling operation. On the oil and walnut we would have a filling operation. On the oil and walnut we would have neither, consequently it took less operations and less people. In this connection he was questioned and testified further as follows: Q. Would the change in the models affect the overall employment? A. Yes it would. Q. Why * A. Particularly in the finishing area, I would say the fluctuation probably was greater because regardless of the quantity of cabinets that could be pro- duced by the cabinet room, your finishing room is on a time cycle. Each operation requires that so many people be there so if there is no operation there just is no people and one of those I am referring to is specifically is this close wood that we have run a considerable volume of this last year, the oil and walnut type finish, this is the one I am referring to specifically.' Q. Is it still possible to have high production and less employees? A. Very possible. Q. And how is that? * * * The WITNESS: We still are able to maintain our sales without the possible addition of labor-that might be in the cabinets. Mr. HAHN: That's when you switch to oil, you still make the same number of cabinets? A. Maybe the number of people that you take out of the finishing depart- ment might be installed as labor in the mill room or the trim room but in certain situations as the case may be, but people who are taken out of the finishing room can not necessarily be placed in the labor category another department. That is what I am trying to say, so it possible to have a ceiling in production without that many people. McDonald testified, in substance that the number of employees required on his line varied according to the type of finish being applied to a particular cabinet, that Miller performed a hand operation, "wiping the cabinet with a cloth"; that she required "a lot of attention" in that she did not always follow his instructions; that Miller and others were laid off because he had more employees assigned to him than he could use "due to a model changeover"; that he had complained to Strange that Miller was "a slow worker"; that no new employees were added to the finishing department while Miller was laid off; that she was the slowest worker under his supervision; and that although " time and time" again he told her that she would have "to do more work or do a better job," her work did not improve. Seger testified that Miller worked for him on occasion when he needed extra help; that she was inefficient in that she required "too much supervision"; that she was "usually on sanding or wiping stain and she would miss lots of sanding-the cabinets would turn dark unless somebody else caught her work and done it for her and in wiping she would leave rag marks and she was awfully slow"; and that he complained about her work to Strange. In his brief the General Counsel states: Respondent's defense that Mabel Miller was a poor worker is inconsistent with its recall of Miller after each short period of layoff. This pattern of layoff did not arise until after employee Miller testified at the hearing in-prior Cases 9-CA-3397 and 9-CA-3418. Her sympathy in favor of the Union became known to Respondent at that time. I disagree with the General Counsel's contention. The pattern of layoff arose in January and his argument fails to cover the layoff of March 19, which the com- plaint alleges to be violative of the Act. Miller testified at the Board's hearing during April. 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undisputed that a number of employees with less length of service than Miller were retained when she was laid off. However, it also is undisputed that seniority was not always followed and was only one of a number of factors involved in selection for layoff. Except for Conrad, the evidence does not show that any employees were hired while Miller was laid off. Further, the testimony of Strange concerning the reason for the layoffs and that of McDonald and Seger as to Miller's inefficiency stand uncontradicted in the record. For the above reasons and after a careful review of all the evidence, I conclude and find that the General Counsel has failed to sustain the burden of proving that the layoffs of Miller on and after March 19, 1965, were violative of the Act. F. The refusal to bargain Starting immediately after the election of March 5, 1965, the Union campaigned among the Respondent's employees in order to get authorization cards signed. The General Counsel identified and introduced in evidence 144 cards, all bearing dates between March 5 and May 20. By stipulation of the parties a list of employees in the appropriate unit as of May 20 was received in evidence. This list contains the names of 248 employees, including three classed by the Respondent as being "inactive." The names of Harry Lee Garriott, Margie Knoy, Kenneth R. Hoke,14 David Coats, and Mary Hedrick, who signed union cards, do not appear on the list. Also not included in the list are the names of Nancy Wright and Jacqueline Stosser. Their cases of alleged illegal discharge are pending before the Board in the prior complaint case. Therefore, excluding the cards of the seven employees named above, the evidence shows that 137 employees signed union cards before May 20, 1965. Accordingly, I find that on or before this date the Union represented a majority of the employees in the appropriate unit. The Union sent the following letter dated May 20, 1965, to the Respondent: This is to advise that a majority of the production and maintenance employees at your plant, located at Borden, Indiana, have authorized Inter- national Union of District 50, UMWA, to bargain with you as their Employer on their behalf. As the bargaining representative of your afore-mentioned employees, Inter- national Union of District 50, UMWA, requests a meeting with you for the purpose of negotiating and executing a contract dealing with wages, hours, and other terms and conditions of employment for said employees. We stand ready to submit to any unbiased check of the authorizations to our Union by your employees referred to above. The Respondent's attorneys answered by letter dated May 24, 1965, as follows: Your letter of May 20th last, addressed to Borden Cabinet Corporation, has been referred to this office. The employer has no knowledge of and must consequently deny your claim of representation of the corporation's employees. On March 5, 1965, at an election conducted by the Cincinnati Office of the National Labor Relations Board, your Union was not certified by that agency for failure to receive the necessary votes. The employer considers your request to be untimely, and takes the position that it must abide by the order of the Board made as the result of the election of March 5, 1965. The General Counsel contends that the Respondent's overall conduct establishes that it refused to recognize the Union. not because of a good-faith doubt of the Union's majority, but in order to gain time to destroy its majority status. He urges that a violation of Section 8(a)(5) be found with the usual bargaining order, and that the instant representation petition be dismissed. In view of the results of the election and of the fact that the representation matter was still pending at the time, I do not find that the Respondent's refusal on May 24 to recognize or bargain with the Union violated Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a 14 It was stipulated that Hoke entered military service on May 5. BORDEN CABINET CORP. 1383 close, intimate, and substantial relationship to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices; it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies 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 Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. Between March 2 and 5, 1965, the Respondent engaged in conduct inter- fering with its employees' freedom of choice in selecting a bargaining representa- tive, and such conduct warrants setting aside the election. 5. The Respondent has not committed any other unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Interrogating its employees concerning their membership in or activities on behalf of the Union, or making threats of reprisal or promises of benefit because of such activity. (b) Announcing and granting increased insurance or other benefits to employees during the pendency of a question concerning representation. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant in Borden, Indiana, copies of the attached notice marked "Appendix." 15 Copies of said notice, to be furnished by the Regional Director for Region 9, shall, after being duly signed by the Respondent or its authorized representatives, be posted by Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision, what steps it has taken to comply herewith.is IT IS FURTHER RECOMMENDED -that the complaint be dismissed in all other respects. _ Upon the basis of the applicable findings of fact and conclusions of law, and upon that part of the entire record pertinent to the objections in Case 9-RC-5577, it is recommended that objections 3 and 7 be sustained; that objection 4 be over- ruled; that the election held on March 5, 1965, be set aside; and that another election be conducted. 15 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." 19 In 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 the Respondent has taken to.comply herewith." 1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 interrogate our employees concerning their membership in or activities on behalf of International Union of District 50, United Mine Workers of America, or of any other labor organization , or make threats of reprisal or promises of benefit because of such activity. WE WILL NOT announce or grant increased insurance or other benefits to our employees during the pendency of a question concerning representation. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. BORDEN CABINET CORPORATION, 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 an question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati , Ohio 45202, Telephone 684-3627. Jefferson Wire and Cable Corp. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Cases 1-CA-5064 and I -RC-8306. June 24, 1966 DECISION AND ORDER On March 30, 1966, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled consolidated 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 Decision. The Trial Examiner also recommended that the election held on April 30, 1965, be set aside and the petition in Case 1-RC-8306 be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions. 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 [Chairman McCulloch and Members Brown and Zagoria]. 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 entire 159 NLRB No. 107.