Mr. Wicke, Ltd Co.

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr Wicke, Ltd Co and Local 151 , International Ladies' Garment Workers' Union , AFL-CIO Cases 1-CA-6651 1-RC-10258 and 1-RM-716 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE April 20, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On October 27, 1969, Trial Examiner John M Dyer, issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision The Trial Examiner found, in addition, that the Respondent's unlawful conduct had interfered with a Board election held on January 9, 1969, and recommended that the election be vacated and set aside Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a supporting 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 con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner 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 brief, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner , and hereby orders that the Respondent, Mr Wicke , Ltd Co , New Haven , Connect- icut , its officers , agents, successors , and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order IT IS FURTHER ORDERED that the petitions in Cases 1-RC-10258 and 1-RM-716 be, and they hereby are, dismissed, and all proceedings held in connection there- with be, and they hereby are, vacated ' Although we agree with the Trial Examiner that the Respondents refusal to bargain with the Union violated Section 8(a)(5) and (I) and that a bargaining order is appropriate under N L R B v Gissel Packing Co 395 U S 575 in rendering our decision we do not find it necessary to adopt or rule upon his finding of bad faith in Respondent s refusal to bargain JOHN M DYER , Trial Examiner On March 21, 1969,' Local 151, International Ladies Garment Workers' Union , AFL-CIO, herein called either the Union or the ILG, filed its charge in this matter , alleging that Mr Wicke , Ltd Co , herein variously called Respond ent, the Employer , or the Company had violated Section 8(a)(1) and (5) of the Act On October 7, 1968 , the Union filed its petition for an election (Case 1-RC-10258) and on October 9, 1968, the Company filed its petition (Case 1-RM-716) The Union and the Company executed a Stipulation for Certification Upon Consent Election on November 22, 1968, setting the election for January 9, 1969 Of the approximate 40 eligible voters, 12 voted for the Union and 21 against , for a total of 33 ballots The Union filed timely Objections to Conduct Affecting the Results of the Election on January 16, and on March 7 the Regional Director of Region 1 issued his report on objections in which he found no merit to the Union's Objections 1 and 3 and recommended that they be overruled He did find merit to Objection 2 and recom- mended that the objection be sustained , the election set aside , and a new election conducted at an appropriate time and place The Employer and the Union filed exceptions to the Regional Director 's report The Board while considering the matter was informed that following the filing of the charge herein the Regional Director intended to issue the present complaint which would treat with issues raised in Objections 1 and 2 The Board on May 14 issued its order directing a hearing be held for the purpose of receiving evidence to resolve the issues raised by Union 's Objections 1 and 2, stating that the issues could thus best be resolved and that such hearing be consolidated with any hearing to be conducted in the present case 2 On May 22 the Regional Director issued his order consolidating cases together with the instant complaint and notice of hearing Respondent ' s answer as further amended at the hearing narrowed the issues, in that Respondent admitted the filing of the charge , the status of the Union, the necessary commerce information, and the conclusion that Respondent ' s operations come under the Board's jurisdiction The supervisory status of Respondent President Stanley Zwicker and his son, Vice President Jeffrey Zwicker, were admitted In the representation proceedings and the election agreement, ' Except for events referred to as background in this case the events herein took place during the late fall of 1968 and the first part of 1969 R At the hearing in this matter the Company for the first time raised a question as to whether the Union s exceptions to the Regional Director s report were timely filed and asked for dismissal of the Union s exceptions on the basis of untimely filing I denied the Compa ny s motion on the grounds that it had not raised this objection at an appropriate time before the Board and the Board had in effect found the Union s exceptions to be timely filed in issuing its May 14 order directing a hearing on the matters 182 NLRB No 10 MR. WICKE , LTD. CO. the parties agreed that the appropriate unit of Respond- ent's employees was the following: All production and maintenance employees employed by Respondent at its New Haven, Con- n necticut, plant, including shipping and packing employees, but excluding office clerical employees, professional employees, guards and, supervisors as defined in the Act. Respondent admitted that the Union had requested it to bargain collectively on or about October 1, 1968, and that it refused and continues to refuse to bargain collectively with the Union, butdenied that such action violated the Act. In, regard to specific allegations in the complaint, Respondent admitted it posted a cartoon in the plant next to the timeclock in December 1968 and that its president, Stanley Zwicker, gave two speeches to employees and distributed a letter or leaflet dated Decem- ber 31, 1968. Copies of the cartoon, the letter, and the two speeches were received in evidence by stipulation of the parties. Respondent denied that by these. speeches, the letter, and the cartoon it had threatened its employees with loss of employment or shutdown of its plant if the Union won the election. Respondent admitted grant- ing a November 22, 1968, 5-cent wage increase to I unit employee, a November 29, 5-cent wage increase to 26 unit employees, and a November 29, 10-cent wage increase to 2 unit employees. These wage increases were given between the time the election agreement was signed and the date of the election. Respondent admitted granting wage increases of 5 cents to 22 unit employees, 10 cents to 8 unit employees, and 25 cents to 1 unit employee on January 17, 1969, the day after the Union filed its Objections to Conduct Affecting the Results of the Election. Respondent admit- ted placing in effect a Blue Cross-Blue Shield medical and hospitalization plan for employees on or about April 1, 1969. Respondent denied that any of these actions violated the Act. At the hearing conducted on July 30, 1969, in New Haven, Connecticut, all parties were afforded full oppor- tunity to appear, to examine and cross-examine witness- es, and to argue orally. General Counsel, Respondent, and the Union have all filed briefs which have been carefully considered. On the entire record in this case, including my evalua- tion of the reliability of the witnesses based on the evidence received and my observation of their demeanor, and on the fact that some substantial portions of the evidence were not denied or explained, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a Connecticut corporation maintaining its principal office and place of business in New Haven, Connecticut, where it is engaged in the manufacture, sale, and distribution of women's wearing apparel. 39 Respondent annually receives directly from points out- side of Connecticut cloth, machinery, and other materials valued in excess of $50,000 and annually ships women's wearing apparel valued in excess of $50,000 directly to points outside of the State. Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts In a previous case (172 NLRB No. 181) involving 'the Company, the Union, and Local 443, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Teamsters, the Board determined that the Company violated Section 8(a)(1) and (2) of the Act in making various threats to employees of loss of employment and other economic reprisals if they did not sign checkoff cards for the Teamsters, and by recognizing and entering into a con- tract with the Teamsters at a time when the Teamsters had not been validly authorized to represent Respond- ent's employees. The Board ordered the Company to withdraw and withhold recognition from the Teamsters and not deal with it concerning grievances, labor dis- putes, etc., "unless and until such labor organization [Teamsters] has been certified by the Board, following a Board-conducted election, as the exclusive bargaining agent of [Respondent's] employees." In that case the Board reversed the Trial Examiner's finding that Respondent had violated Section 8(a)(5) by not recognizing and bargaining with the ILG. The Board stated that though the ILG had apparently secured valid authorization cards from a majority of the employ- ees, as the Trial Examiner found, Respondent apparently intended to raise the question of majority status and due to the fact that only one isolated violation of Section 8(a)(l) had taken ;place within the 10(b) time period limitation established by the Act, the Board could not find that "a real question concerning representation did not exist and that the Respondent Company could not have doubted in good faith the ILGWU's claim to majori- ty status when it refused to honor the ILGWU's bargain- ing request." The Board issued its decision on August 22, 1968, and denied a petition for review of its decision on September 11, 1968. Respondent objected to the General Counsel's citation of this case to the Trial Examiner. General Counsel alleged that the case would provide background informa- tion concerning the instant case. In examining the speeches made by Stanley Zwicker I find references to the previous case. I consider that the previous case does provide important background information for the interpretation of facts and statements which might appear otherwise to be ambiguous or innocuous. None of the parties offered any testimony regarding the December 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 31, 1968, letter or leaflet from Stanley Zwicker to the employees or concerning his two speeches to the employ- ees on January 6 and 8,. 1969. The 'parties agreed that the copies of the leaflet and the two speeches which were attached as appendixes 2, 3, and 4 to the Regional Director's report were what was given to the employees, and, as part of the formal papers, were before me. Therefore my consideration as to whether they could have affected the conduct of the election and, further, whether they violated Section 8(a)(1) of the Act and would serve as an underlying basis for an 8(a)(5) finding, must be made on consideration of those documents in the circumstances and against the background of the events. None of the parties gave any, testimony concerning the, November or the January wage increases 'granted 'by Respondent. Contrary to Respondent's position as stated on pages 12 and 13 of its brief, Jeffrey Zwicker's testimony related solely, to the change in the Blue Cross- Blue Shield plan and had no bearing on the January wage increases. In fact' his testimony concerned a"deci- sion made in early February ' 1969 to make the change in that plan and thus could have had no reference to wage increases given some 3 weeks prior thereto Respondent additionally argues in its 'brief that, in investigating the objections to the election, the Regional Director determined in his report that the'wage increases given prior to the election in November 1968 may have been part of a continuing pattern to give wage increases at changeover times in the fall. After citing the Regional Director's statement in this regard, Respondent's brief states: "We submit-that General Counsel (did not) put on any evidence in the above matter pertaining to the increases given before the election took place, therefore the findings of the Regional Director as to this issue must be upheld and the Charge pertaining thereto dis- missed." Respondent overlooks the, Board's Order which in effect overturned the Regional Director's decision regard- ing Union's Objection I and specifically ordered that evidence be taken regarding the matters alleged in both Objections 1 and 2 in the instant proceeding. The General Counsel alleged in the complaint that the granting of the wage increases in November 1968 unlawfully inter- fered with the` conduct of the election held on January 9, 1969, by coercing Respondent's employees in their selection of bargaining representatives, and that such conduct prohibited the, employees from making a free and untrammeled choice in the election. Further the General Counsel alleged'that those 'increases together with other Respondent actions violated Section 8(a)(5) and (1) of the Act in that they were part of a course embarked on by Respondent to undermine the Union and dissipate the Union's majority status. The General Counsel in not putting on any evidence in regard to the wage increases relied on the fact of them and their timing to the election (facts which Respondent's answer admitted) to establish a prima facie case of Respondent interference with the election process and as violations of Section 8(a)(1). Considering only the preelection increases the record before me shows that reasonably substantial increases were granted by Respondent to most of the unit employ- ees in the period between the execution of the election agreement and the election . Respondent , mistakenly or 'otherwise , offered no explanation in this proceeding to demonstrate that there were any other factors which led to these wage increases other than the pendency of the election . The Board has held that the burden of going forward and demonstrating that there were other factors which led to the granting of such increases is upon the employer . In N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, the Supreme Court stated in finding such increases to be violative of Section 8(a)(1) of the Act, that , "the danger inherent in well-timed increas- es in benefits is the suggestion of a fist inside the velvet glove . Employees are not likely to miss the infer- ence that the source of benefits now conferred is also the source from which future benefits must flow and which may, dry up if it is not obliged " The Board has in many cases held that such action , sufficiently inhibits employees' expressing their free choice in an election to warrant setting aside that election. Considering the postelection wage increases, we are faced with a similar issue in that these unexplained January wage increases were given by Respondent the day after the Union filed , what I find to be valid objec- tions affecting the conduct of the election , while the status of the question concerning representation was still unresolved . These postelection wage increases were larger than the November increases and the timing of them is such,as to demonstrate that Respondent sought to assure that the employees would continue to reject the Union . The Board ' s recent decision in Garland Knitting Mills of Beaufort, South Carolina , Inc., 178 NLRB No. 62,, appears to reaffirm that such acts by Respondent constitute 8(a)(1) violations as stated by the Board in Ralph Printing & Lithographing Co., 158 NLRB 1353, and taken together with the preelection conduct and other Respondent conduct demonstrates that a bargaining order is necessary to redress the viola- tions. Vice President Jeffrey Zwicker testified that the Com- pany had a Blue cross -Blue Shield plan, whose cost was borne by the employees , which was in effect prior to the advent of the 1968 union campaign and that the plan when put in effect was the best plan available. Zwicker testified there were conversations with the Blue Cross-Blue Shield representative over a period of years `and that in January or February 1969 he heard of a low-cost rider which would pay for a semiprivate room. Respondent thought that the minimal cost of the rider made it so attractive they decided to add it to their plan. Zwicker later testified that it was prior to the 'election when Respondent determined to put this rider into effect as soon as they could do so. On April 1, 1969, Respondent made its Blue Cross- Blue, Shield plan noncontributory for employees and paid for the employees ' policies although employees continued to pay for coverage of a spouse or dependents if they desired . Jeffrey Zwicker testified Respondent MR WICKE, LTD CO had wanted to make the policy noncontributory for over a year and a half, but did not do so for economic considerations According to him, Respondent in early February 1969, some 3 or 4 weeks after the election, made the decision that it was economically feasible to change the plan to a noncontributory status and the change was thereafter made The underlying econom- ic considerations according to Jeffrey Zwicker were that Respondent had lost four skilled operators on the day of the election (January 9) to another garment manufacturer in the same building and it felt it must offer the employees something to prevent a high rate of employee turnover, particularly among skilled employ- ees He stated Respondent thought the four might possi- bly have left for higher wages and because they were lured away by the other manufacturer Zwicker stated that the Union's losing the election on that day might have been a cause in the four employees' departure According to Jeffrey Zwicker the other manufacturer had started sewing operations the previous fall although it had been in the same building for over 2 years Zwicker acknowledged that another ILG manufacturer had been in the same building for over 5 years Respond ent's annual turnover rate of employees was approxi- mately 40 percent but Zwicker said this was mostly in the unskilled group Since there are no elevators in the building and everyone must use a common stair- case there must have been some contact between the employees of the various companies It would seem that if there were a labor crisis, as Jeffrey Zwicker testified, it occurred immediately when the four employees left If Respondent was worried about others leaving it would have decided to offer better working conditions (the Blue Cross plan) when the crisis occurred rather than some 3 or 4 weeks later There was no testimony that any other employees left in the interim or were contemplating doing so, even up until April 1 There is no other testimony regarding the decision to change the Blue Cross plan or the implementation of the change Therefore the question as to the purpose in making the change and putting it into effect must be resolved on the testimony of Jeffrey Zwicker and the surrounding circumstances Respondent's brief claims that the change in the plan was contemplated for over a year but that Respondent was held up by economic conditions and the fact the t a decision was pending in the prior case As noted above the Board issued its decision in August 1968 and denied a petition to review its decision in September 1968 which would appear to remove the pendency of that case from the issues if indeed it were ever one The essence of Jeffrey Zwicker's testimony is that the possibility of losing other skilled help made the change in the plan economi- cally feasible However, as noted above, the timing of the decision appears wrong if it was prompted solely by a "labor crisis " Other things must have entered into the decision which was not made until February Zxyicker intimated that a sign posted by one of the building's occupants 41 that he was paying ILG benefits may have influenced the decision as a partial answer to that announcement I conclude that one of the reasons influencing the change was a continuation of Respondent's policy of granting postelection benefits to its employees in keeping with its statement that they would fare better without a union Respondent, knowing of the Union's objections and with experienced counsel, recognized the possibility that there might be another election and Respondent was in the position of wishing to reward its employees for voting against the Union and wishing to assure itself of continued employee support Since I find that part of Respondent's reason for changing the Blue Cross-Blue Shield plan was to reward its employees for voting against the Union and assuring their continued support while the representation proceed- ings remained unresolved, I must also find that said actions violated Section 8(a)(1) of the Act in the same manner as did the postelection wage raises and constitut- ed a further effort by Respondent to assure itself that the Union's preelection majority status had been dissipat ed Considering only the preelection raises I find that the facts alleged in Union's Objection I have been proven and that Respondent has not offered countervail- ing evidence and recommend that the objection be sus tamed B The Cartoon, the Letter, and the Speeches Jeffrey Zwicker testified that, some 2 or more years prior to December 1968, he clipped a cartoon from a newspaper he thought was the Wall Street Journal, and kept it Following the election agreement he asked an employee to redraw the cartoon and then he posted it on the plant bulletin board where it remained for about a week The cartoon (appendix I to the Regional Director's report in the Board's formal papers) shows an apparently happy man bearing an "On Strike" sign coming home and saying to a distressed wife holding a rent bill, "Well We Won The Company Went Out Of Business"" No other significant testimony was offered concerning the cartoon The question to be answered is whether the cartoon, Stanley Zwicker's December 31 letter, and his two speeches of January 6 and 8 constitute threats to employ- ees of loss of employment and plant shutdown in viola- tion of Section 8(a)(1) and whether this antiunion cam- paign interfered with the employees' freedom of choice in the election This campaign must also be assessed against the November raises given to the employees and the prior case which Zwicker referred to in his speeches Following the tone setting cartoon, Zwicker in his December 31 letter stated he did not know whether the employees would be together the following year and that there should be no layoff unless the plant was shut down by the ILG He stated he would close the plant before he would let the Union tell him to fire an employee and he concluded with a thinly disguised 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat that at his age, and presumably at the age of some of the employees, it was hard to find a job. Zwicker's statement about closing the plant before allowing the Union to tell him to fire an employee presumably meant he would not sign a union-shop con- tract. This line was abandoned in Zwicker's January 6 and 8 speeches in which he warned the employees that they could be fired if they did not pay dues under a union-shop contract and the way to guarantee that would not happen was to vote against the Union. The two speeches contained a consistent theme that if the Union were successful in organizing the plant there would be a strike and with only one customer the Company would go out of business and the employees would lose their jobs, since even if the Company hired replacements the Union could not force the Company to take back the strikers. Zwicker stated that the employees knew the Company had previously urged them all to join the Teamsters and said he had received bad advice. He told the employ- ees they now had the services of a labor relations expert and referring to the election agreement said: It was through this man that we determined the day on which the election would take place, the place where it would be held, and the time it would take place; and Mr., Cooper and the Union lawyers from New York couldn't do a thing about it. This is one of the reasons we have told you, and we are telling you now-don't let the union organizers or their two or three stooges in here scare you or fool you. The impression from this statement is that the deci- sions on the election were made solely by the Company without any participation by the Union and that the National Labor Relations Board had sanctioned the Com- pany's decision. Such a statement of itself would tend to make the employees doubt that a free and fair election could be held since, according to Respondent, it alone was responsible for all the decisions regarding the elec- tion. Zwicker's speeches sought to create dissension in the union ranks by claiming that those employees work- ing for the Union were paid stooges who would continue to be paid by the Union while striking employees would receive nothing and would lose their jobs. Referring to an alleged union promise that it would see that Respondent got other work if it lost the John Meyer account, Zwicker stated the Union, would not do so but rather would try to keep Respondent from getting work in order to help the Union's other members all to the harm of the 40 or so Respondent employees. This is a return to the refrain that the Union only wanted to put Respondent out of business and would violate its duty to represent the employees' interest. Zwicker stated that he knew improvements should be made but that he could not do so while they were having union trouble and that the employees stood to lose if the Union got in but they would gain if the Union were defeated. This statement blames the Union for Respondent's not making improvements and threat- ens harm if the Union is successful and promises benefits if it is not. On several occasions in his speech Zwicker used the phrase "in my opinion" in an apparent attempt to place his speech in the so-called "free speech" area and to qualify the remarks as predictions of what might happen. But Stanley Zwicker is the president of Respond- ent and the one who will decide the course Respondent would take in negotiations with the Union. Further, these speeches were given by Zwicker as expert advice by a savant to unlearned employees as to what was best for them and was not the opinion of a minor supervisor. Here the hand that controlled.the Company's course of action vis-a-vis the Union was telling the employees what would happen if they were foolhardy enough to select the Union as their bargaining agent. The clear import of this campaign could not be missed by the employees. I find that the campaign, by the cartoon, the December 31 letter, and the January 6 and 8 speeches, interfered with the employees' freedom of choice in selecting a bargaining representative and further violated Section 8(a)(1) of the Act by threatening the employees with loss of their jobs or a plant shutdown if they chose the Union to represent them. Accordingly, I will recommend that the Union's Objection 2 be sus- tained. In summary, I have found that Respondent committed the conduct complained of in Union's Objections I and 2 and recommend they be sustained and the results of the election of January 9, 1969, be set aside. I have also found that by these same acts and by other postelection acts Respondent violated Section 8(a)(1) of the Act and made the holding of a free and fair election impossible, while undermining the Union's majority status, in endeavoring to prevent collective bar- gaining with the Union. Hereafter, I find that the Union enjoyed a majority status at the time of its October 1, 1968, demand for recognition and bargaining and that Respondent by the above actions in refusing to bargain violated Section 8(a)(5) of the Act. Therefore I will recommend that the petitions in 1-RC-10258 and 1-RM-716 be dismissed. C. The'Union 's Majority Status Bert Cooper,' manager of the Connecticut Ladies' Garment Workers' Union, testified he sought to organize Respondent's employees since the fall of 1966, and that he personally met and worked with a large number of Respondent's employees in various phases of, the organization. He testified that in the fall of 1968, some 2 weeks after the Board's denial of the petition for a review of its decision in the prior case, he held a meeting at the union hall in New Haven for the purpose of getting new authorization cards signed by the employees. At this September 25 meeting, Union Agents Jill lannone and Peter DeGiacomo were present together with 19 Respondent employees, in a room Coop- er described as being about 15 by 13 feet. He testified that blank union authorization cards in English and Spanish were handed out to the 19 employees, each MR. WICKE, LTD. CO. 43 of whom he knew, since he had worked with them in the prior organization campaign. He told the employ- ees that, if they wanted the Union to represent them, a majority of the employees would have to sign authoriza- tion cards designating the Union as their collective- bargaining agent . He said the Union could then ask the Company for recognition and, if the Company re- fused , they could get bargaining rights by an election or by a strike. An examination of the cards establishes that they are clear, unambiguous designations of the Union as the employees' bargaining agent. Cooper testified that he observed all of the 19 employ- ees at this meeting filling in and signing their authorization cards.. The cards were then collected by Jill Iannone and Peter DeGiacomo and brought to Cooper at the desk in front of the room where he checked over each card making sure it was completely filled out and signed. Cooper testified he spoke only in English, but that on the union committee , which was elected at that time , were two employees who spoke Spanish and were available to assist any of the Spanish-speaking employees in completing their union authorization cards. Cooper then identified the authorization cards marked G.C. Exhs. 2(a) through 2(s). The 19 employees whose names and signatures appeared on these cards, as per Cooper's testimony, were all then employed by Respondent. During cross-examination Cooper was asked whether he personally observed the signature being placed on each of the 19 cards and replied that he was standing in-the front of the room by a desk and that,•in looking around the room while the employees were filling in and signing, the cards, he observed their doing so and jr this. way, and by later observation, of the cards after they were collected, assured himself that each of th'e^ cards,was filled in and' signed by eachof the f9'employeds present at this meeting. After these 19 authorization cards G.C. Exhs. 2(a) through 2(s) were so identified , their admission into evidence was moved by the General Counsel. Respond- ent objected saying that it would have no objection if Respondent had the right to check the signatures against its records. Respondent was allowed to do so and utilized a long luncheon recess for this purpose. Respondent voiced another objection to receipt in evi- dence of the cards, stating that the identification of the authorization cards was not proper , in that the individual card signer must necessarily be present for questioning by, Respondent to establish the identity of the cards. Following the luncheon recess Respondent stipulated to the authenticity of the signatures on cards 2(c), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i), 2(m), 2(o), and 2(q). With regard to the nine other cards Respondent said it had some question as to the authenticity of the signatures on those cards . After some extensive colloquy, Bert Cooper was recalled to the stand for further examination by Respondent concerning the nine cards Respondent said it questioned. During the colloquy Respondent again proclaimed its "right" to question the signers of the authorization cards as to the background of their signing them. Cooper was questioned by Respondent regarding where each of the nine individuals was in the room at the September 25, 1968, meeting and to each inquiry he replied that he did not recall precisely where the person was but only knew the person and knew the person was in the room. Concerning each of the nine cards Cooper stated he knew the person and saw the person among others signing and completing the authori- zation cards. Examination of the cards discloses no irregularity. At the conclusion of the voir dire examination, Respondent objected to the introduction of these nine cards on the sole basis that it said the General Counsel had a duty to produce all the card signers to identify their own signatures and to give Respondent an opportu- nity to question them on the background leading up to their signing those cards The objection as stated was overruled and the 19 authorization cards were received in evidence. Jill Iannone testified that she visited employee Berta Bernabeo at her home and explained to her that the purpose of the cards was to authorize the Union to act as the collective-bargaining agent for Respondent's employees. The card (G. C. Exh. 6) is in Italian and, according to Iannone , Berta read it and asked Jill lannone to fill in the card which Berta then signed and dated. This card was received into evidence without objection. Berta Bernabeo was an employee of Respondent at that time. Employee Clementina Lincoln testified that she gave out union authorization cards and received from employ- ees four signed cards, which were identified as G. C. Exh. 7(a) through (d). These were the cards of Elsa 1?efgado; Mmrgereta G'ol'dberger, Mattie Mims, and Con- cefta' 12ag'eriese. Prior to Mrs. Lincoln's testimony kespon'dent had stipulated to the authenticity of the cards, of Efsa 6e1gad'O'9 Margereta Goldberger, and Con- cetta Ragenese. Clementina Lincoln testified that each of the four, who were all employed by Respondent at the time, signed the authorization card in her presence and dated it, after having read it. She testified that she told each of them that if she wanted Cooper and the Union to represent her, to read the card and sign it. Respondent stated that its only objection to the receipt of these four cards in evidence was that it did not know what led to the signing of the cards by the individ- ual employees and that Respondent thought it had a right to question each individual on why she signed the authorization card . This objection was overruled and the four cards were received in evidence. Josephine Colon attended the September 25 meeting and took blank authorization cards which she later dis- tributed to a number of employees . She testified that she gave blank cards to Esperanza Garcia, Ana Pabon, Lucy Rosario, Carmen Zayas, Anna Mendez, and Petra Mercado and that each of these employees gave her a signed and dated card back . She testified that all of these cards were in Spanish and that each of these employees reads and speaks Spanish. She stated that when she gave them the blank cards she told them that if they wanted a union they would have to sign 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the cards and if they did not want a union not to sign the cards Each of the six employees were then employed by Respondent Respondent objected to these six authorization cards on the sole basis that the General Counsel was not bringing in the individual signatories of the cards so that Respondent could question them on the background and their reasons for signing the cards As the sole basis for Respondent ' s objection to receipt of these cards, the objection was overruled and G C Exhs 8(a) through (f) were received in evidence Carrie Winfrey testified that she received a card at her home and filled it out , signed it , and dated it the same day, September 25 Respondent originally offered ' to stipulate the authen ticity of this card , and, when it was offered in evidence following Carrie Winfrey's testimony , Respondent stated that it objected to the receipt of the card on the same basis that it had objected to the other cards Respondent then stated it wanted voir dire examination and asked whether Winfrey attended the September 25 meeting She testified she did not Respondent then made no objection to the receipt of this authorization card which was received in evidence As above described , 31 union authorization cards were received in evidence as valid expressions of the employee signatories ' intent to authorize the Union to bargain collectively for them Thus, as of October 1, when the Union made a demand for recognition on Respondent , it had signed authorization cards from 31 of the 45 employees then on the Company 's payroll in an appropriate unit and thus represented a majority of Respondent ' s employees On October 1, Bert Cooper together with Jill lannone and Peter DeGiacomo went to the Company' s plant and met with Stanley Zwicker Cooper testified that he handed Zwicker his business card , said that he repre- sented a majority of the workers employed by the Com pany, and was prepared to prove his majority by a card count , through either the State or Federal mediation services or a mutually acceptable third party Cooper testified he had the authorization cards in his hand at the time, and so told Zwicker Zwicker said he did not care how many cards Cooper had or who he represented , that he did not have to answer him and was going to leave it to the government and seek legal advice Cooper stated that as he left he gave Zwicker a letter (G C Exh 3) which stated that the Union represented a majority of the production and mainte nance unit employees and that the Union was prepared to demonstrate its majority by a card count which could be conducted by an independent party such as the State Labor Relations Board, State Arbitration and Medi- ation Service , the Federal Mediation and Conciliation Service , or a similar agency or any mutually acceptable impartial third party After leaving the plant the Union sent Zwicker a telegram stating that it was confirming its visit to the plant and was prepared to prove it represented a majority of Respondent 's employees and was demanding recognition An oral demand accompanied by a letter and followed by a confirming telegram was the same way in which the Union made its demand on Respondent in November 1966, as found by the Board in the prior case Stanley Zwicker testified that when Cooper came into his office with two other people on October 1 and made the demand for recognition , Zwicker replied he didn't believe that could be true because he didn't think his girls would do so, and added' ' we have a case pending what do you want from me9" Zwicker testified that they were in the middle of a case (the prior case) and he wouldn't believe a claim that the ILG had a majority of his girls He testified that Cooper did not say he could prove the majority but said Cooper had an envelope with him which he laid on the desk and then took back He said Cooper did not show him any cards Zwicker testified he did not recall any letter being left at the office that day but he believed they got a telegram from the Union the following day Despite this testimony, Respondent's answer admitted that a demand for recognition was made upon it on October 1 Respondent bases its refusal to recognize the Union on several things First, Respondent argues in its brief that in the prior Board case the Board ordered the Employer to withdraw and withhold recognition from the Teamsters Local or any successor labor organization as the representative of its employees, unless and until said labor organization was certified by the Board as the exclusive representative of such employees, and that, this injunction must apply to the ILG Respondent states that the Company was inexperienced in labor matters and that the Board ' s use of the term "successor organization" is confusing and subject to interpretation Respondent states that The only possible interpretation , even for one expe- rienced in the field would be that it referred to any other union that would be successful in weaning the employees away from the Teamsters-in this instance the Petitioner This being so the Employer Respondent herein , using the plain meaning of the words honestly felt that before he could recognize any union or bargain with any union , it had first to be Certified by the National Labor Relations Board Putting things in proper prospective we have the fact that the ILG was the Charging Party in the former case and clearly could not stand in the position of being a successor to the Teamsters organization which the Employer had aided in violation of the Act Besides the fact that Respondent offered no testimony to substan- tiate this claim , the reasoning is fallacious and must fail from its lack of any weight Respondent next argues that the Union did not offer to demonstrate proof of its majority, based on Stanley Zwicker' s statement that no one showed him any union cards However , the clear testimony of the Union was that the offer was made orally, in writing , and by tele- gram Stanley Zwicker testified that his memory was not of the best and I reject his testimony in this regard MR. WICKE , LTD. CO. and find that a firm offer to prove majority was made by the Union and was rejected by Respondent. The Union thereafter filed a petition and 2 days later Respondent filed its petition. Respondent's brief claims that in following this course of action Respondent was following the advice of one of the Board members who in a speech said that if a union makes a demand by showing cards the safest course for an employer to follow was to file a petition for an election. Respondent neglects to add that in filing a petition for an election Respondent must also refrain from violating the Act by attempting to undermine a union majority by commit- ting unfair labor practices Further there is no testimony by Respondent here that it was following this advice. Respondent infers that Stanley Zwicker doubted the Union's majority.- A good-faith doubt of majority must be based on something. Respondent offered nothing more than Zwicker's statement that he didn't think his girls would do so to substantiate its claim of a good-faith doubt of the Union's majority. There should be some tangible evidence to bottom this declaration on, but none was offered other than linking this claim with the fallacious reasoning regarding the Board's deci- sion in the prior case. If Zwicker doubted the Union's majority it was not based on any tangible fact or'evidence adduced in this proceeding. If he did in fact doubt the Union's majority status it may have been because his pride was hurt to think that his employees would authorize the Union to bargain for them. But this is not'a good-faith doubt founded on something tangible. Respondent's unfair labor practices demonstrate that' the doubt if any was in bad faith D. Conclusions Fhave found that Respondent did not have a valid basis for doubting the Union's majority in relying on the Board's Order in the prior case nor did Respondent show any basis for a good-faith doubt of the Union's majority at the time the demand was made upon it by the Union on October 1, 1968. The Union had a clear valid majority and offfered to prove it. Respondent rejected the offer. The Union then filed a petition for an election followed 2 days later by the Respondent's petition. In the time between the petition filings and the election, Respondent engaged in the antiunion cam- paign described above, seeking to undermine the Union's majority status by threatening, the employees with the inevitability of a strike if the Union were successful in organizing the plant and the inevitability of the employ- ees' loss of their jobs if, they did strike. This campaign was carried on in a series of speeches, a leaflet, and Respondent's cartoon. To further show its power to effect the employees' wages, Respondent gave a series of wage increases in November a little more than a month prior to the election. The natural effect of these raises would be to demonstrate to the employees that Respondent was the source of benefits the employees might receive. This, coupled with Respondent's antiunion campaign predicting disaster for the employees if the Union came in, could only have the effect of underlining 45 for the employees that they were dependent, upon the Company for any benefits they might receive, and affect- ing and undermining any reliance they might have on the Union. ' Respondent in its brief claimed that the Regional Director's statement in his report on objections fore- closed any decision by me as to the effect of the wage raises. Respondent overlooked that the Board specifically ordered that I take evidence in regard to these matters. Respondent chose not to offer any evidence as to why it put the wage increases into effect in November 1968. I therefore have no alternative but to decide that the natural effect of such, an event is what Respondent intended and therefore that Respondent made these wage increases in November for the express purpose of under- mining the Union's majority. Similarly, following the election Respondent gave other wage increases to the employees and effectuated a change in the Blue Cross-Blue Shield plan. Respond-. ent's reasons for the January 1969 wage increases follow- ing the election were not given. As stated heretofore, I find that these increases and the change in the Blue Cross-Blue Shield plan were continuations of Respond- ent's efforts to demonstrate to the employees that it alone held the complete determination of their future welfare and that its actions violated Section 8(a)(1) of the Act. Thus Respondent in bad faith refused to recognize and bargain with the Union and embarked on a course designed to undermine the Union's majority status and thwart its employees' expressed desire to be represented by the, Union. Respondent sought to escape from the duties and responsibilities of collective bargaining and acted to frustrate that end, violating Section 8(a)(5) and'(1) of the Act as alleged in the complaint. ' As to the manner''df remedying Respondent's viola- tions, I 'am constrained to recommend that Respondent be ordered to bargain with the Union. In Garland Knit- ting Mills, supra. the Board noted that bargaining orders under the Supreme Court's holding in N.L.R.B. v. Gissel Packing Co.. 395 U.S. 575, could be ordered both where the unfair labor practices were so coercive that such an order was necessary to repair their unlawful effect and in situations where the possibility of erasing the effects of past practices and insuring a fair election or rerun election-was slight. Here we have the fact that, in 1966, a majority of the employees, according to the Board in the prior case, were organized by this Union and authorized it to represent them. The Board reversed the Trial Examin- er's finding that Respondent violated Section 8(a)(5) saying negatively that the. situation then was such that the Board could not say the Respondent might not have had a good-faith doubt of this Union's majority. The'Board's decision which issued in the fall of 1968, some 2 years 'after the events, foreclosed the Union from receiving a bargaining order and presumably denied the wishes of the majority of Respondent's employees for collective bargaining. Two weeks after the Board denied a petition for review•of its decision, the Union again sought to organize the employees and within 2 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or 3 days had received valid authorization cards from an overwhelming majority of Respondent's employees The Union followed its same course of seeking recogni- tion from the Employer and again it was denied Respondent gave no valid reason for its denial of the Union's demand and sought to forestall recognition of the Union by engaging in a campaign of unfair labor practices leading ultimately to rejection of the Union at the January election I think it is clear that the desires of the majority of the employees have been expressed often enough and on each occasion foiled by Respondent's actions It would therefore make no sense at this point to order a rerun election It makes sense to order Respondent to bargain with the Union which was the employees' uncoerced choice as shown by their union authorization cards The election results were the result of coercion by the Company, and in these circumstances Respond- ent's practices would make the prospect of holding a fair election miniscule I will therefore recommend that the election be set aside and that the representation petitions of the Union and the Company be dismissed and that Respondent be ordered to bargain with the Union OBJECTIONS OF THE ELECTION I found above that Union's Objections 1 and 2 conduct affecting the election have merit and I conclude that the conduct complained of prohibited the holding of a free and fair election I therefore recommend that the results of the election held on January 9, 1969, be set aside Due to my further finding that Respondent has violated Section 8(a)(5) and (1) of the Act and that a bargaining order is necessary, I further recommend that the representation petitions be dismissed III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above in section II, and therein found to constitute unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, occurring in connection with Respondent's business operations as set forth above in section I, have a close, intimate, and substantial relationship to trade, traffic, and com merce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce IV THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows Respondent since on or about October 1, 1968, has at all times refused and still refuses to bargain with the Union in good faith as the representative of its employees in the appropriate unit I therefore recom- mend that Respondent, upon request, bargain collectively with the Union in good faith and, in the event that an understanding is reached, embody such understanding in a signed agreement Having also found that Repondent sought to under- mine the Union's majority by granting raises and by threatening the employees with the inevitability of a strike and loss of their job if the Union were successful in organizing the plant and having found that Respondent has rejected the principle of collective bargaining and acted to avoid collective bargaining and has by such action invaded its employees' rights under the Act as set forth in section II, above I am of the opinion that Respondent may commit further unfair labor prac- tices, having by its action detailed herein shown its proclivity for so doing Since it is part of the purpose of the Act to prevent the commission of unfair labor practices, I recommend that Respondent be placed under a broad enjoinder to cease and desist from in this or any other manner infringing upon the rights guaranteed its employees by the Act On the basis of the foregoing findings and the entire record, I make the following CONCLUSIONS OF LAW 1 Mr Wicke, Ltd Co is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 All production and maintenance employees employed by Respondent at its New Haven, Connecticut plant, including shipping and packing employees, but excluding office clerical employees, professional employ- ees, guards, and supervisors as defined in the Act consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 At all times since October 1, 1968, the Union has been, and is now, the exclusive representative of the employees in the said unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 Respondent by refusing to bargain in good faith with the Union on and after October 1, 1968, as the exclusive representative of its employees in the appropriate unit, has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act 6 Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act by (a) Threatening its employees with the inevitability of a strike and the consequent loss of their jobs or closing of the plant if the Union won the election or was successful in organizing the plant (b) Unilaterally granting its employees benefits in order to undermine the majority status of the Union and dissipate such status MR. WICKE, LTD. CO. 47 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record' in this case considered as a whole , it is recommended that Mr. Wicke , Ltd. Co., of New Haven , Connecticut, its officers, agents , successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith con- cerning rates of pay , hours of employment , and other terms and conditions of employment with Local 151, International Ladies' Garment Workers ' Union, AFL-CIO, as the exclusive representative of the employ- ees in the appropriate unit described in the section above entitled "Conclusions of Law." (b) Threatening employees with the inevitability of a strike and the consequent loss of their jobs or closing of the plant if the Union were successful in winning the election or organizing the plant. (c) Unilaterally granting the employees wage raises and other benefits in order to undermine their support of the Union and dissipate the Union 's majority status. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Upon request , bargain collectively in good faith with the above-named Union as the exclusive representa- tive of all employees in the appropriate unit and embody in a signed agreement any understanding reached. (b) Post at its New Haven, Connecticut, plant copies of the attached notice marked "Appendix . "3 Copies of said:, notice , on • forms provided by the Regional Director for' Region 1, after being duly signed by Respondent's representative, shall be posted by the Respondent' immediately ' upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con'spicuous' 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 1, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .4 Under the terms of the order directing hearing issued by the Board in Cases 1-RC-10,258 and 1-RM-716 on May 14, 1969 , those cases are hereby transferred to and ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order, herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the, National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' 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 Respondent has taken to comply herewith " continued before the Board after this ruling and decision. I hereby recommend that the election held pursuant to those cases be set aside and that both petitions be dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Following a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated and offered evidence, it has been found that we violated the Act. We have been ordered to post this notice and to abide by what we say in this notice. WE WILL bargain collectively in good faith, upon request, with Local 151, International Ladies' Gar- ment Workers' Union of America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will sign a con- tract containing such understanding. The bargaining unit is: All production and maintenance employees at the Company's New Haven, Connecticut, plant, including shipping and packing employ- ees, but excluding office clerical employees, professional employees, guards and supervi- sors as defined in the Act. WE WILL NOT threaten our employees with the inevitability of a strike and the consequent loss of their jobs or closing of the plant if the Union organizes the plant. WE WILL NOT try to undermine the Union's majority status by unilaterally granting wage raises and other benefits. All our employees are free to become or remain union members. MR. WICKE , LTD. CO. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with its provisions may be directed to the Board's Office Cambridge and New Sudbury Streets Boston Massa- Twentieth Floor , John F Kennedy Federal Building , chusetts 02203 Telephone 617-223-330