Daisy's Originals, Inc., of Miami

DAISY'S ORIGINALS, INC., OF MIAMI Daisy's Originals, Inc., of Miami and Local No. 415, International Ladies' Garment Workers' Union, AFL-CIO. Case 12-CA-4217 December 15, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 4, 1969, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to these allegations. Thereafter, exceptions to the Trial Examiner's Deci- sion and briefs in support thereof were filed by the Respondent, the General Counsel, and the Charging Party. Answering briefs also were filed by the Respondent and the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and i With its answering brief, which was timely filed on November 10, 1969, Respondent has moved the Board for leave to include an addendum to its exceptions to the Trial Examiner's Decision and brief in support thereof By this motion Respondent seeks specifically to except to the Trial Examiner's ruling, made at the outset of the hearing , denying Respondent's request for permission to use a tape recorder during the hearing Relying on Marriott Corporation v N L.R B, 417 F 2d 172 (C A 4), Respondent contends that the Trial Examiner's ruling constituted prejudicial error The General Counsel opposes Respondent's motion on the grounds that it is an attempt by Respondent to file untimely exceptions, and that in any event the exception is lacking in merit Although the Respondent's exception to the Trial Examiner's ruling was not timely filed under a strict application of the Board's Rules, the Board makes every effort to apply its rules with such lenience as will effectuate the purposes of the Act Local 18, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO (Jesse Bulle), 159 NLRB 303, 304, fn. 3, remanded on other grounds 378 F 2d 926 (C A 3), and thereafter enfd 407 F 2d 1309 (C A 3) Accordingly, we grant Respondent's motion and make its addendum part of the record In so doing, we also note that the issue of the Trial Examiner's ruling with respect to the use of a tape recorder was, in fact, raised to the Board by Respondent's answering brief which, as stated, was timely filed On the other hand, we agree with the General Counsel's position and find no merit in Respondent's exception It is well settled that a Trial Examiner has wide discretion in the conduct of hearings before him The record reveals that Respondent's counsel requested permission to use a tape recorder " to implement our taking of notes and to help us to 251 the entire record in this case, and hereby adopts the findings,2 conclusions,3 and recommendations of the Trial Examiner with the modifications and additions set forth below.4 The Facts Based on the credited and uncontradicted testimo- ny appearing in the record, the significant facts may be summarized in chronological order as follows: 5 The Respondent and the Union have had a collective-bargaining relationship since 1954, with the last contract effective until May 31, 1968. In January 1968, Respondent mailed to each of its employees a letter advising of the amount of money which "Daisy's has placed in trust for you . . . for vacations, holiday pay, health and welfare, unemployment- severance, and retirement benefits" in accord with the provisions of the contract with the Union. Each letter was personally addressed, was signed by Respon- dent's president, Renato Levi, and indicated the amount of money placed in trust for the particular employee. The letters continued: This is your money; you earned it and we paid it out on your behalf. However, we have heard rumors that some members have not been able to receive these benefits unless they first paid dues to a union. If this is so, we are as shocked as you must be that this practice is taking place. We wish to inform you that as an employee of Daisy's you are entitled to all the benefits enjoyed by you and your fellow employees whether you are or are not a member of any union, and whether you pay or do not pay any union dues. To deny you these benefits because you have not joined a union or because you have not paid union dues is prepare our defense," arguing that the recorder would not in any way conflict with the official reporting service "except insofar as . there is an error in the transcript . " The Trial Examiner denied Respondent's request on the ground that he would be without power to police its use And, since the Trial Examiner, the General Counsel, and the Charging Party are equally bound by the transcript as reported by the official reporting service , the Trial Examiner's denial of Respondent's request was not, in these circumstances , an abuse of his discretion. 2 Respondent has excepted to certain credibility determinations made by the Trial Examiner. It is the practice of the Board not to overrule a Trial Examiner's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are wrong Such a conclusion is not warranted here Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3) 9 The Respondent's request for oral argument is hereby denied since, in our opinion the record, the exceptions, and briefs adequately set forth the issues and positions of the parties. 4 We neither adopt nor condone the Trial Examiner's gratuitous and injudicious editorial remarks criticizing the Board's processes These comments are not only without any foundation (except, perhaps, in the Trial Examiner's own personal pique at being ordered by the Board to take additional evidence), but are wholly inappropriate for inclusion in a Trial Examiner's Decision. 5 Unless otherwise stated, the statement of facts is based on the Trial Examiner's credibility resolutions and conclusions . All letters and speeches are set out in full in the Trial Examiner's Decision. 187 NLRB No. 15 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not only unfair to you and to us, but is completely unlawful and should be reported. We repeat, this is your money, regardless of whether you are or are not a member of any union, or have or have not paid union dues. Accordingly, we believe you deserve to be told of your money which we have set aside for you, and we have taken this opportunity to do so ... . Ruth Menes, the union shop steward, mailed her letter to Harry Metz, manager of the Union. As a result, Metz and William Krost, the Union's business agent, met at Levi's office with Levi and with Respondent's office manager, Eli Cohen, and Uberto Orvieto, Levi's brother-in-law. The Union protested the letter, stating that the "rumors" were untrue, and Levi replied, "Okay, so I made a boo-boo, I shouldn't have sent the letter." In fact, no such rumor existed and this record shows no basis for asserting that there was such a rumor circulating among employees. Thereafter, on February 23 and March 8 and 18, Respondent held three meetings with its employees in the employee's lunchroom. These meetings were announced to "all employees" and both unit and nonunit employees attended.6 At the first meeting, held during the lunchbreak, Levi told employees about the "Employees Booklet," which he had recently had printed, explaining the benefits received by employees not covered by the bargaining contract. Levi reviewed the benefits of the nonunit employees, said he wanted the unit employ- ees to see what the others were getting, told them not to discuss problems with outsiders but to take them directly to supervisors first, pointed to a large cardboard box which contained some 200 booklets,7 and told the employees to take one home and read it. During the first week in March, Menes had a conversation with Levi and Satterwhite 8 in which Levi told her that he had noticed that her attitude had changed within the past couple of weeks and that her first loyalty should be with the Company. Menes replied that her first loyalty would be to the Union and the people who elected her and she did not like the fact that he had put out the letter and distributed the booklet and was also allowing decertification petitions to be circulated in the plant. She told him, further, that she felt he was definitely out to break the Union and before he accomplished that "we will strike." Levi responded "You go ahead and strike" 6 Respondent had 108 unit employees and about 50 nonunit employees at the times relevant herein The nonumt group consisted of design , office, stockroom, and maintenance employees Levi testified that all of these, except three or four office employees and perhaps one maintenance employee, regularly ate lunch with the unit employees in the lunchroom and hence all these attended the meetings 7 It is immaterial whether all 200 booklets which Respondent had punted or only some of them were brought to the meeting, as it is clear that there were enough for each unit and nonumt employee to take one and "you will see what will happen." When Menes asked what would happen, he said, "Well, you won't be able to work in another shop." 9 A few days after the February 23 meeting, Business Agent Krost visited Levi in his office and asked permission to speak to two employees (Antonio De Los Reyes and Julia Lepre) who, Krost thought, were circulating an antiunion petition in the plant. The two were called into the office and, upon inquiry from Krost, De Los Reyes admitted circulating the antiun- ion petition. When Krost asked why, Levi interrupted by saying they had a right to do this if they chose. On March 8, Levi called the second meeting of his employees, at which time he distributed the Spanish translation of the Employees Booklet. He read a document to the employees, telling them, inter alia, that he was very "upset and angry" about rumors of a strike on February 22, that he thought it would be terribly unfair to the employees and to the Company "if this union or some small clique of employees try to strike our premises" and he felt it only fair to warn "that clique" that "any economic strike of this company [would] be subject to immediate and permanent replacement." Continuing his speech, Levi said that he was also very upset by rumors that "some small group has started in this plant" that since the Company gave the benefits it would take them away, and he wanted to assure the employees that this was not true and that these benefits would be increased as much as possible and as soon as possible. He conjectured that the "rumors" probably started as a result of his distributing the Employees Booklet, but said that he was proud of the booklet. Levi again raised the nonexistent rumors first mentioned in his January letter by saying that there was no truth to the "consistent rumor that the employees under the ILGWU contract cannot get benefits unless they are members of the union" and stating that "[t ]his is a lie" and all employees covered by the contract will get all the benefits of the contract regardless of membership or lack of membership "or if they withdraw from the union. And regardless of whether or not they have signed or have revoked a union dues checkoff card." Levi concluded by saying that there had "also been rumors that certain employees have been threatened or coerced by various other employees or by any other persons" and he would: These booklets were in English, the Spanish trai.slation being distributed at a later date 8 It was stipulated , and we find, that Satterwhite was a supervisor at all times material herein 9 Although Respondent asserts that it was cut off from cross-examining Menes on this point, the record indicates that the Trial Examiner precluded further examination only on those aspects of that conversation not related to the case, and Respondent 's counsel did not assert the need to continue questioning Menes with respect to the alleged threat DAISY'S ORIGINALS, INC, OF MIAMI . . . guarantee that this will be stopped in this shop. If there are any instances of this occuring, I want you to report them to me and I will take care of it. Also if any supervisor or management representative threatens or coerces any of you about the union let me know about that and I will take care of it .. . and, finally, that he wanted to repeat that "the 35 hour work week will never be taken away no matter what."fo Toward the end of this March 8 meeting, Gustavo Rodriguez, a cutter in the bargaining unit, asked Levi if he was eligible to receive the insurance described in the booklet, and Levi replied that Rodrigues would have to make up his own mind and go one way or the other, gesturing to the right and left with a booklet in his hand.ii When Menes asked Levi what specific decision the employees had to make in order to secure the benefits, he told her, "Don't vote for the Union." Beginning shortly after the Respondent's January letter to its employees and accelerating between the first and third meetings, the Respondent received a number of letters and petitions signed by employees and indicating that they no longer wished to be represented by the Union. By March 18, a majority of the unit employees had repudiated the Union as more fully discussed, infra. Respondent's third meeting with employees, on March 18, was held after employees were notified by Satterwhite about 3 p.m. to go to the lunchroom. In addition to management representatives, Respon- dent's attorneys, Mr. Bruckner and Mr. Greene, were present. Levi again read a prepared statement, as follows: First, I must tell you why it was necessary to call this meeting at this time, and why none of you can work overtime this afternoon. As you know, we have been working overtime fairly consistently lately, but last Friday I received this telegram: (Read Telegram) Since our contract with the Union has not yet expired, then we cannot give you overtime work this afternoon . I called this meeting because as you undoubtedly know, I have received confidential petitions and letters signed by most of you, saying that you do not want to be represented by ILGWU. 10 The record contains no evidence that any of the rumors referred to existed in fact, and Menes testified that she had not heard , and was unaware, of any of them Contrary to the Respondent's argument, Menes' statement to Levi in the first week of March that before Levi broke the Union the employees would strike is not construable as a threat of a strike on February 22 11 Levi testified that he explained that the benefits were for nonunit employees only It is noted, however, that Levi, in his testimony, frequently used the term "nonunion" employees when he referred to the nonunit 253 In fact, a clear majority of you have sent these letters and petitions to me and the names are still coming in. Since this is such a complicated area, and since I WANT TO MAKE ABSOLUTELY SURE THAT ALL OF YOU GET ALL THE BENE- FITS TO WHICH YOU ARE ENTITLED, I have called in our labor lawyer to explain what is going on to you. The text of the telegram referred to read: Please be advised that under no circumstances will the Union authorize overtime work for any of your employees on Monday March 18, 1968. This is because of a meeting called by the Union for the employees in your shop. Attorney Bruckner also read from a prepared text but abandoned it when he was interrupted repeatedly by questions from the floor. The portion read was to the effect that management had informed the attor- neys that a clear majority of unit employees had written letters and signed petitions stating that they no longer wished to be represented by the Union; and, that under the circumstances, the Company may not and as a matter of law cannot continue to recognize that Union," and therefore was notifying the Union immediately that the Respondent would comply with the wishes of the majority and would not continue to recognize the Union. Bruckner also said that "Due to the many questions that have been asked about the dues checkoff, unfortunately there will be a dues payroll deduction for the month of May." Menes asked why it was necessary to pay dues through May if the Union no longer represented Daisy's employees, and how Bruckner could decertify the Union without going through the National Labor Relations Board.12 Bruckner did not give her a direct answer, but asked who she was. After Menes identified herself, Bruckner said, according to Menes, "that the Company and the employees were going to do what they wanted and [Menes ] could either go along with the rest of them or - and he made a motion with his hands, or you can just go about your business." Menes thanked him and walked out of the meeting, whereupon a large number of other employees also left the meeting to return to work. Satterwhite followed them out of the lunch- room and told them that they must either return to the meeting or check out. At least 10 employees checked workers, and he indicated that he considered the distinction between these terms to be a technicality 12 This recitation concerning this aspect of Bruckner's comments and the exchange between Bruckner and Menes is based on Menes' testimony, which was undenied and was corroborated by that of employee Jennie Giglio Furthermore, Bruckner admittedly told Menes , "Look, you just have to take your route and go your way and we will have to go ours," which substantially accords with her version of his response. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out and were not paid for the last 15 minutes of working time on that day. The next day, March 19, Respondent's attorney sent a letter to the Union notifying of Respondent's intent to terminate the current agreement upon its May 31 expiration and advised the Union that a majority of the bargaining unit employees had expressed the desire not to be represented by the Union. In response, the Union, by letter dated March 26, gave notice of its intent to modify the terms of the existing agreement, stated it would submit written contract proposals in the near future, and proposed several meeting dates and places. The Union expressly denied Respondent's assertion that a majority of the unit employees no longer wanted union representation and affirmatively asserted the contrary. Respondent replied by letter dated March 29, offering to submit its evidence to an impartial third party.13 Approximately 10 days to 2 weeks after the last meeting with employees, Rolando Rodriguez, the steward of the cutters, complained to the cutter's foreman, Bottorf, concerning the proposed layoff of two prounion cutters. Rodriguez was called into Satterwhite's office where Levi also joined the meeting. According to Rodriguez,14 Levi said that Respondent had a right under the contract to lay off the two cutters and that he (Levi) was sick and tired of having to do what the Union wanted and "that he would rather close the shop until [sic ] he signed again with the union." Levi said that he could call the Cuban Refugee Center and have "a hundred women come to work" any time he wanted. On April 4, the Respondent filed a representation petition with the National Labor Relations Board. The Union opposed the petition asserting the contract as a bar, and the petition was withdrawn. On Friday, May 3, the unfair labor practice charges herein were filed, and on the same day the Union struck. Almost immediately, a campaign was begun of soliciting nonstrikers to resign from the Union, as discussed, infra. 1. The Trial Examiner found, and we agree, that the Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby 13 Additional letters were exchanged, in which the Union and the Respondent each protested the attitude of the other However, this correspondence contributes little to a resolution of the issues 14 Levi's testimony does not substantially differ from that of Rodriguez Levi testified that after Satterwhite explained to Rodriguez that Respondent had a right to lay off the two cutters, Rodriguez replied that he was not sure whether the rest of the cutters would go along with Respondent's decision . Although Levi denied saying he would rather close the plant than sign another union contract , he admittedly lost his temper after Rodriguez' response , and said that he was "sick and tired of all this aggravation", that he and his family need like a hole in the head this business and me and my wife is better off to pack up and put on the padlock and go back to the farm And as far as threatening me to - like that you will not be no violated Section 8(a)(1) of the Act, by Levi's threat to Menes that if she went on strike she would be blacklisted from employment in the industry; 15 Levi's statement to Gus Rodriguez at the March 8 meeting indicating, in effect, that he, and other employees, could enjoy the superior benefits described in the Employees Booklet if they were not covered by a contract with Respondent; and, Levi's direct state- ment to Menes at the same meeting that, if the employees wanted to enjoy the benefits set forth in the booklet, they should vote against the Union. In addition, however, and contrary to the Trial Examiner, we find that Respondent also violated Section 8(a)(1) of the Act by Levi's statement to Rolando Rodriguez about the end of March that he was sick and tired of all the aggravation and that he would rather close the shop than to sign up again with the Union; and by supervisor Satterwhite's remarks to employees Mabel Schleyer and Adell Olliff. As to Schleyer, the Trial Examiner found that in a conversation between the second and third meetings, employee Schleyer told Satterwhite there was tension in the shop, and Satterwhite said she would be glad when it was over and she (Satterwhite) could get rid of some of the girls. Unlike the Trial Examiner, we find that only one meaning can be drawn from Satter- white's comment - that as soon as the antiunion campaign was over she was going to discharge the prounion employees. Such a threat is unquestionably violative of Section 8(a)(1). As to Olliff, the Trial Examiner credited her testimony concerning the relevant events. He found that about this same time on March 15, she had a conversation with Satterwhite in the plant during working time, when Satterwhite came to Olliff's work station. Satterwhite said, "Adell, I heard that you were going to walk out on me," and told Olliff "that if I stayed with her that she would stick with me and I wouldn't regret it and then she told me I had better get on the bandwagon . . . . She told me I had better hurry up and sign up because they had just about enough names." On March 17, Olliff called Satter- white to ask what the latter meant by "getting on the bandwagon," and Satterwhite said: ... that if I would stick with her she would stick cutters here, I am going to call up the Cuban Refugee Center and I am going to replace all of you there as fast as you walk out. The Trial Examiner disregarded the testimony concerning Rodriguez' argument with Levi because he found it bore no relation to the substance of the case. We disagree and find, to the contrary, that Levi's attitude about the Union, as reflected by his words and conduct, are the very substance of this case. is We find no merit in Respondent's contention that, since Menes' threat to strike was in derogation of the no-strike clause of the contract, Respondent's threat to blacklist her in the industry was not unlawful. If Menes or any other employee had engaged in such an unprotected strike she would have lost her status as an employee of the Respondent by virtue of the Act, but this would not have deprived her of employee status for all purposes or licensed the Respondent to engage in blacklisting her. DAISY'S ORIGINALS, INC., OF MIAMI 255 with me and I wouldn't regret it and she said that I had better hurry up and get my name on the paper because they had dust about enough to do what they wanted to do. She said that they were going to kick the union out because they didn't want anybody telling them what to do and what not to do. They were going to be one big happy family.16 Late that day, Olliff signed a petition given her by De Los Reyes, telling De Los Reyes that she did so only to get "them" off her back. It is apparent, as the Trial Examiner concluded, that Satterwhite, in urging Olliff to "get on the band wagon" and to "hurry up and sign up," was encouraging Olliff to sign the antiunion petition, and aiding and abetting the employees who were circulating those petitions. In our view, it is equally apparent that Satterwhite's conduct in this respect clearly interfered with employ- ee rights guaranteed by Section 7 of the Act and violated Section 8(a)(1) of the Act. Finally, and contrary to the Trial Examiner, we find that Respondent violated Section 8(a)(1) of the Act after the strike began by permitting, and thereby encouraging, McGowan and Fulton openly and freely to write and address antiunion letters, to solicit employee signatures and collect postage from em- ployees at the plant on working time, as more fully set out below. 2. We find no merit in the General Counsel's contention that the Respondent violated Section 8(a)(3) of the Act by requiring that employees either remain at the March 18 meeting or clock out, and by refusing to pay employees who clocked out early for 15 minutes of that day. The Trial Examiner recom- mended dismissal of the allegation on the ground that the loss of 15 minutes working time, if unlawful at all, was de minimis. However, we find that even if it were more than de minimis, since the meeting was held on Respondent's premises during normal working time, Respondent was at liberty to determine the use to which it wished to put the time for which it was paying the employees, and the employees were not free to make a choice in favor of working. Accordingly, we shall dismiss that allegation of the complaint. 3. As is apparent from the facts recited above, the Respondent informed its employees on March 18 that it was withdrawing recognition from the Union and on March 19 sent a letter to the Union to this effect. The Respondent's action was predicated upon letters and petitions signed by employees indicating they no longer wished to be represented by the Union. However, it is clear that these rejections were the result of the Respondent's overall conduct through March 18, including the unfair labor practices committed, and hence the Respondent may not rely on them as evidence of employee disaffection. 17 Thus, the earliest letter, postmarked February 5, 1968, was written soon after employees received the January letter, and the last petition was dated March 18. Respondent received 15 such letters between approxi- mately February 6 and March 8, the date of the second meeting, and 20 more between March 8 and 18, of which only 11 were from members who indicated they desired to withdraw and 9 were from employees who indicated they did not wish tojoin the Union. In addition, the Respondent also received 10 petitions during this period, bearing a total of 55 signatures, stating that the signatories did not want representation by the Union; of the 55 signatures, 23 were those of persons who had not previously signed individual letters. One signature was that of Adell Olliff who was solicited by Satterwhite to sign and testified that she signed the petition against her will and only to get "them" off her back. With respect to the letters and speeches, a clear pattern emerges of increasing references by the Respondent to nonexistent rumors in the plant of various forms of alleged misconduct by the\ Union and to employee withdrawal from the Union to obtain the greater benefits enjoyed by nonunit workers. It is apparent, as the Trial Examiner found, that Respon- dent was engaged in a campaign, subtle and sophisti- cated, to increase dissension in the shop and weaken the Union's bargaining power.18 Thus, the Respon- dent's references to rumors in its January 1968 letter, and again in Levi's March 8 speech, were unsupport- ed and were intended to denigrate the Union in the eyes of the employees. Similarly, Levi's comments to the employees at the February 23 and March 8 and 18 meetings, including the distribution of the Employees Booklet, were intended to, and did, increase dissen- sion in the shop and stir dissatisfaction among the employees. As found above, the distribution of the booklet and Levi's remarks in connection therewith both directly and indirectly implied a promise of benefit if the employees rejected the Union. While an employer need not affirmatively act to protect an 16 The Trial Examiner credited Olliff but did not quote or summarize her full testimony 17 Two prerequisites for sustaining the defense of "good-faith doubt" of majority status are that the asserted doubt must be based on objective considerations and that it must not have been raised in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain some time in which to undermine the union Celanese Corporation ofAmerica, 95 NLRB 664, 673 is We do not pass upon the Trial Examiner's conclusion that the Respondent's first breach of good faith in its long bargaining history with the Union occurred during the 1967 contract negotiations. The Respondent's alleged conduct with respect to that contract , occurring long before the 6-month period preceding the filing of the charge herein and which has been fully rectified, does not constitute a factor to be evaluated in appraising its overall conduct herein 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incumbent union's status among the employees, it may not take affirmative action, as involved herein, to undermine that status.19 And, although we agree with the Trial Examiner that, except for the Satterwhite-Olliff incident, there is no evidence that the Respondent actively participated in the antiunion campaign or directly solicited employees to sign antiunion letters and petitions before March 18, we consider such a finding unneces- sary herein. For the nature of the Respondent's communications, including the specific 8(a)(1) viola- tions, directed as they were to instigating just such repudiation of the Union, albeit subtly and somewhat by indirection, and including specific indications that employees should reject the Union, that employees would enjoy greater benefits without the Union, and that Respondent no longer wished to deal with it, lead to the inevitable inference that the letters and petitions were the direct and intended product of those activities.20 Under all the circumstances, we are persuaded, and find, that the circulation and signing of the antiunion letters and petitions resulted largely, if not entirely, from the Respondent's conduct and that this solicita- tion was prompted and furthered by the Respondent both directly and indirectly. Since the Respondent therefore cannot rely on these rejections to sustain its assertion that it had valid grounds for doubting the Union's continued majority status,21 Respondent was under a continuing duty to bargain collectively with the Union as the representative of the employees in the appropriate unit and its withdrawal of recognition on March 18 and refusal thereafter to recognize the Union was violative of Section 8(a)(5).22 4. The Trial Examiner found and we agree that, inasmuch as the strike of May 3 was in direct response to the Respondent's refusal to recognize the Union, it was an unfair labor practice strike from its inception.23 However, the Trial Examiner refused to admit testimony offered by the General Counsel for purpos- es of establishing the cause of the strike, and the Respondent's alleged responsibility for the solicita- tion of resignations thereafter. Thus, he apparently deemed as irrelevant proffered testimony concerning what transpired at the union meeting on May 2, when 19 Nickey Chevrolet Sales, Inc., 142 NLRB 23, 25-26 20 Member Brown would find, in agreement with thi. General Counsel's contention , that the January letter and Levi's remarks at the employee meetings also violated Sec 8 (a)(1) of the Act 21 Respondent asserts that because a clause in the then current contract contained language, later corrected, which it claims is unlawful on its face, the Union's representative status was based on a coerced majority Such a contention is patently without merit, in view of the history of bargaining dating back to 1954 and the presumption of regularity which attaches to the initial and continuing recognition prior to the 6-month period preceding the filing of the charge herein 22 See Ingress-Plastene, inc, 177 NLRB No 70, and cases cited therein 23 Mastro Plastics Corporation v N L R B, 350 U S 270 It is sufficient the unit employees voted to strike, and he stated that such testimony is self-serving in any event. The testimony concerning the letters of resignation was rejected on the ground that it was beyond the scope of the complaint. The General Counsel's request for special permission to appeal from the Trial Examin- er's rulings was granted, and the Board, by telegraphic order, sustained the appeal and directed the Trial Examiner to receive the evidence offered concerning the said events. Although the Trial Examiner thereaft- er received this evidence, he has not summarized it in his Decision, and he disregarded it on the grounds that it was irrelevant, incompetent, and beyond the scope of the complaint. The Tnal Examiner is in error as to both aspects. For events which occur at union meetings are relevant and significant in determining what considerations prompted a decision to strike,24 and the issue as to whether Respondent prepared or sponsored the solicitation of letters of resignation was within the literal scope of the complaint as amended at the hearing upon the General Counsel's motion to the Trial Examiner.25 Accordingly, it is appropriate to consider the evidence received by the Trial Examiner upon direction of the Board, all of which was uncontradicted. With respect to the cause of the strike, Violet Reid testified that she attended a union meeting on May 2, the day before the strike began. Present at that meeting were Marty Morand, Southwest Regional Director of the Union, who presided; Messrs. Metz and Krost; and some 40 to 50 of Respondent's bargaining unit employees. Morand reported to the employees that all efforts by the Union to start negotiations for a new contract with Respondent had failed. Reid thereupon moved that the employees strike; the motion was seconded and carried unani- mously. As stated, the strike began on Fnday, May 3, and was still in progress at the time of the hearing herein. As we find the strike was caused at least partially by Respondent's unfair labor practices the employees did not lose their employee status as a result of their striking, despite the existence of the no- strike clause, nor did the Union lose its representative status. Accordingly, the policies of the Act will be that the strike was caused in part by the Respondent 's unfair labor practices Billups Western Petroleum Company, 169 NLRB No. 47. In any event, the Respondent's unfair labor practices here were flagrant in nature and clearly designed to destroy the very foundation of the contract and relationship, involving as they do "vigorous efforts by the [Respondent to influence and even to coerce their employees to abandon the [Union [ as their bargaining representatives " Mastro Plastics Corporation v N L R B, supra, 278 24 See, e g , Alco Plating Corporation, 179 NLRB No. 20; Tyler Pipe & Foundry Company, 171 NLRB No 38 (TXD); Wittock Supply Company, 171 NLRB No 33 25 For this reason we need not consider whether it was within the allegations of the complaint as originally issued. DAISY'S ORIGINALS, INC., OF MIAMI 257 effectuated by the imposition of a bargaining order as a remedy herein.26 Almost immediately after the strike began, employ- ees Doris Fulton and Eileen McGowan began writing letters of resignation to the Union and addressing envelopes, on behalf of 33 nonstriking unit employees.27 Fulton testified that starting 2 or 3 days after the strike began she addressed most of the envelopes and wrote many of the letters at McGow- an's request. She admitted that she did this openly at her worktable in the plant during working hours and that when she was finished she gave the letters and envelopes to McGowan. McGowan acknowledged that she had asked Fulton to address the envelopes and to write some of the letters. She also testified that she wrote many of the letters at the plant, but did so at the request of employees who could neither read nor write in English, and then asked those employees to sign, urging them to resign from the Union28 so that the Union could not fine them $100 for working behind a picket line.29 According to McGowan, "it took a two or three day period to get the letters wrote [sic] up . . . ." After the letters were all written, McGowan enclosed them in the envelopes and her husband sent them by registered mail and gave McGowan the receipts. McGowan thereafter turned over the receipts and collected the amount of the postage due from each employee, admittedly going to their work stations during working hours for this purpose. Although McGowan denied that Levi or Satter- white asked her to write and address these letters to the Union, there is no evidence that they attempted to stop her or Fulton from doing so on working time. Nor is it claimed that Respondent was unaware of the massive letter writing campaign and the subsequent solicitation of signatures and collection of postage at the plant on May 6 and 7. To the contrary, we are persuaded and find that Respondent was not only fully aware of McGowan's and Fulton's activities but, by failing to stop them, Respondent approved, condoned, supported, and adopted these activities as its own. Further, the two women apparently knew that Respondent would support them, as they acted openly and without any apparent fear of reprimand. In these circumstances, we conclude that Respondent, by permitting McGowan's and Fulton's antiunion activities to go on openly and freely at the plant 26 See N.L.R.B. v. Gissel Packing Company, 395, U.S. 575. Though the decision in that case did not discuss the issue involved herein, namely, the circumstances in which an employer is privileged to withdraw recognition from an incumbent union , we are satisfied that its teachings concerning the circumstances in which it is appropriate for the Board to find that an employer's refusal to recognize and bargain with a union seeking initial recognition and supporting its claim of majority status by authorization cards violates Sec. 8(a)(5) supports our decision in this case. 27 All but seven of the letters appear to be in the same handwriting and during working hours interfered with the employees' Section 7 rights in violation of Section 8(a)(1). THE REMEDY Having found that Respondent's employees were engaged in and are engaging in an unfair labor practice strike, Respondent shall be ordered, upon unconditional request, to reinstate all strikers to their former positions or, if those jobs no longer exist, to substantially equivalent positions, dismissing if neces- sary any replacements hired. In addition, Respondent shall make each of the striking employees whole for any loss of earnings which he or she may suffer by reason of Respondents refusal, if any, to reinstate such striking employees in the manner prescribed above, by payment to him or her of a sum of money equal to that which such employee normally would have earned as wages during the period beginning 5 days after the date on which such employee applies for reinstatement and terminating on the date of Respondent's offer of employment. Backpay, where due, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include interest in the amount and manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Because of the nature and extent of Respondent's unfair labor practices which we find go to the very heart of the Act, we find that a broad cease-and-desist order is warranted. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Daisy's Originals, Inc., of Miami, Miami, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees that they would be blacklisted from employment in the industry if they go on strike; telling its employees that if they wanted the greater benefits granted to nonunit workers they should vote against the Union; indicating to its employees that nonunit employees enjoyed greater benefits than unit employees in order to undermine their bargaining representative; threatening to close the plant rather than sign another agreement with the Union; urging any employee to sign an antiunion petition; threatening to discharge union adherents all but two are dated May 6, 1968. As to the envelopes, all but six appear to have been addressed by Fulton and all but two are postmarked May 7, 1968. 28 It is apparent that this testimony is internally inconsistent . Further, no employee testified to asking McGowan or Fulton to write a letter of resignation for her to the Union. 29 No evidence was presented that the Union intended to fine its members for working during the strike or that it had ever done so in the past. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when the antiunion drive is over; and soliciting and encouraging nonstriking unit employees to resign from the Union. (b) Refusing, upon request, to bargain collectively with the Union as the exclusive bargaining represent- ative of its employees in the unit found appropriate herein concerning wages, hours, rates of pay, and other terms and conditions of employment. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist Local No. 415, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which we find will effectuate the policies of the Act: (a) Reinstate the unfair labor practice strikers, upon their unconditional applications, to their former jobs or, if such jobs are no longer available, to substantial- ly equivalent positions without prejudice to their seniority or other rights and privileges of employ- ment, discharging, if necessary, any replacements hired during the strike and make them whole for any loss of earnings resulting from the failure to reinstate them as set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or appropriate to analyze the amount of backpay due, if any. (c) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the unit found appropriate herein with respect to wages, hours, rates of pay, and all other terms and conditions of employment and, if an understanding is reached, embody the terms of such understanding in a written agreement. The appropriate unit is: All production workers at Respondent's Miami, Florida, plant, but excluding all other employees, all office clerical employees, guards and supervi- sors as defined in the Act. (d) Post at its Miami, Florida, plant copies of the attached notice marked "Appendix." 30 Copies of said notice, on forms to be provided by the Regional Director for Region 12, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by other material. (e) Notify any of the unfair labor practice strikers if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (f) Mail a copy of the attached notice to each of the unfair labor practice strikers addressed to his or her last known address. (g) Notify the Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. so In the event this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell employees that they will be blacklisted from employment in the industry if they go on strike; tell employees that if they want the benefits granted to nonunit workers they should vote against the Union; indicate to employ- ees that nonunit employees enjoy greater benefits than unit employees in order to undermine their representative; threaten to close the plant rather than sign another agreement with the Union; urge any employee to sign an antiunion petition; threaten to discharge union adherents once the antiunion campaign is over; and encourage nonstriking unit employees to resign from the Union. WE WILL NOT refuse, upon request, to bargain collectively with the Union as the exclusive bargaining representative of our employees in the unit found appropriate herein concerning wages, hours, rates of pay, and other terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Local No. 415, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the DAISY'S ORIGINALS, INC., OF MIAMI 259 purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL reinstate the unfair labor practice strikers, upon their unconditional application, to their former jobs or, if such fobs are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges of employment, discharging, if necessary, any replacements hired during the strike and make them whole for any loss of earnings resulting from the failure to reinstate them within 5 days from their unconditional request. WE WILL, upon request, bar3ain collectively with the Union as the exclusive bargaining agent of all employees in the appropriate unit with respect to wages , hours, rates of pay, and all other terms and conditions of employment and, if an understanding is reached, embody the terms of such understanding in a written agreement. The appropriate bargaining unit is: All production workers at Respondent's Miami, Florida, plant, but excluding all other employees, all office clerical employees, guards and supervisors as defined in the Act. WE WILL notify the unfair labor practice strikers if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL mail a copy of this notice to each of the unfair labor practice strikers addressed to his or her last known address. DAISY'S ORIGINALS, INC., OF MIAMI (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 with its provisions may be directed to the Board's Office, Room 826, Federal Office Building, 51 SW First Avenue, Miami, Florida 33130, Telephone 305-350-5391. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner : Upon a charge filed May 3, 1968, by Local 415, International Ladies' Garment Workers' Union, AFL-CIO, herein the Union, against Daisy's Originals, Inc., of Miami, herein the Respondent, the General Counsel issued complaint dated February 27, 1969, alleging Respondent had violated Section 8 (a)(1), (3), and (5) of the Act. The answer of the Respondent denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard by me at Miami, Florida, on various dates between April 21 and May 20, 1969. At the conclusion of the hearing the parties were given leave to file briefs. Briefs were received from the General Counsel and Respondent on July 17.1 Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a Florida corporation with its principal place of business at Miami, Florida, where it is engaged in the manufacture and wholesale distribution of ladies' garments. In the course of its business Respondent ships finished products valued in excess of $50,000 annually to places and points outside the State of Florida. Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Past Bargaining History and the Last Contract 1. Evidence Bargaining history between Respondent and the Union began with the signing of a collective-bargaining contract in September 1954. (G.C. Exh. 5-a.) In July 1957, a collective- bargaining contract was signed between Florida Apparel Manufacturers Association and the Union. Respondent was a member of the Association and adhered to the contract. (G.C. Exh. 5-b.) Supplemental agreements to this contract were entered into on October 25, 1960, and September 7, 1963. (G.C. Exhs. 5-c and d.) In 1965 the Association was dissolved, although the contract did not expire until August 31 , 1966. In September 1966 a memorandum of agreement was executed between Respon- dent and the Union, renewing the terms of the contract, as modified, until May 31, 1968. (G.C. Exh. 5-e.) The last contract and the one concerning which there is 1 Intemperate language used in both briefs has been disregarded. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dispute was executed in March 1967 between Respondent and the Union and expired May 31, 1968. (G.C. Exh. 5-f )2 The dispute concerns article XV of the contract which reads, in part: 1. The Employer shall pay weekly to the Union a sum equivalent to nine and one-half (9 1/2%) percent of its total gross weekly payroll (before deduction for federal or state taxes) of all non-supervisory union production workers employed in any of its own shops. Such payments shall be allocated as follows. .. . [Emphasis supplied.] Paragraph 2 of the affirmative defenses set forth in Respondent's answer reads: Any claim of representation on the part of the Union was based on unlawful activities, including the receipt of benefits under the said collective bargaining agreement by union members only, and accordingly the Union did not represent an uncoerced majority, within the purview of the Act The proposed agreement submitted by the Union (G.C. Exh. 2-c) contains the following provision under article XV: The Employer shall pay weekly to the Union a sum equivalent to nine and one-half (9 I /29o) percent of its total gross weekly payroll (before deduction for federal or state taxes) of all non-supervisory production workers (whether Union or non-union workers and whether regular or trial period workers) employed in any of its shops. Such payments shall be allocated as follows.... [Emphasis supplied.] This dispute, then, centers on article XV and as to whether this article was agreed to in the form contained in the signed agreement (G.C. Exh. 5-f) which, as to article XV, varied so substantially from the Union's proposed agreement (G.C. Exh. 2-c). It should be noted that the last complete agreement between the parties, dated July 16, 1957 (G.C. Exh. 5-b), contained in article XIV, the following provisions respect- ing the health and welfare fund: The Employer shall pay monthly to the Flonda Division Southeastern Regional ILGWU Health and Welfare Fund, a sum equivalent to six and one-half (6 1/2%) percent of its total gross weekly payroll (before deduction for Federal or State taxes) of all employees covered by this agreement (whether regular or trial period workers) payment to be made through the Miami office of the Union... . Thus, the history of health and welfare payments, until the last contract, included benefits for both union and nonunion employees. The clearest evidence with respect to the dispute is documentary. Herbert Kaplan, a member of the bar of the State of Florida, testified that he was counsel for the Union from 1962 until March 1969, and participated in negotia- tions leading to the final contract of March 1967. (The actual date of execution of the contract is not clear.) On February 22, 1967, Kaplan wrote Samuel Sheradsky, then attorney for Respondent, the following letter (G.C. Exh. 2-a): Samuel Sheradsky, Esq. Wall, Roth & Sheradsky 1895 S. W. Third Avenue Miami. Florida 33135 Re: ILGWU-Daisy's Originals, Inc. 1966 Negotiations. Dear Sam As I understand the status of the above matter, you wish to check the validity of our relative positions in regard to Articles XV and XXIII of the draft Agreement. It has been our position that benefit funds must be paid on behalf of all employees regardless of their Union membership and that such a position is not an arbitrary one on our part, but is dictated by Federal law. It has also been our position that the nght to call a work stoppage for the employer's failure for five days to pay in full wages or monies due the Union or funds is absolutely essential to us. This remedy has been available to us throughout our relationship with the employer, and the employer has never demanded that we surrender that which we have always had. I am now holding the draft Agreement sent to me under date of February 13, 1967, and will continue to hold it until I have heard from you with respect to these two crucial provisions. Warmest personal regards. Sincerely, Kaplan and Shapiro By Herbert L. Kaplan HLK/fig cc. Mr. Harry Metz This letter establishes that Kaplan understood any contract must provide for payment of benefits to union and nonunion workers alike. On June 1, 1967, Kaplan forwarded to Sheradsky an original and two copies of the Union's proposed contract of March 1967, with a covering letter, a copy of which was received as General Counsel's Exhibit 2-b. This contract had already been signed by Harry Metz, manager of the Union. The letter read: June 1, 1967 Samuel Sheradsky, Esq. Wall, Roth & Sheradsky 1895 S. W. Third Avenue Miami. Flonda 33135 Re: ILGWU - Daisy's Originals, Inc. 1966 Negotiations Dear Sam: Enclosed are the onginal and two copies of the Contract in the above matter executed by Harry Metz, as Manager of Local 415 of the International Ladies' Garment Workers' Union. 2 G C. Exh 5-e and 5-f, above were inadvertently numbered 5-f and indicated The transcript, however, will refer to them as originally 5-g when received in evidence They were subsequently renumbered as numbered, thereby creating confusion DAISY'S ORIGINALS, INC., OF MIAMI It is my understanding that in connection with our controversy regarding Benefit Fund payments for non- union employees, that that matter has been resolved by our clients, and Mr. Metz has demonstrated to Messrs. Levi and Cohen that although they received a concession on one occasion in this regard, the contractual obligation is as it has always been. Please cause your clients to execute all of the enclosures. I would appreciate your being good enough to insert the correct date on the first page of each of the enclosures. The original and one copy should thereafter be returned to me. Thank you for your continuing cooperation. Sincerely, KAPLAN AND SHAPIRO By Herbert L . Kaplan HLK/fig; Enclosures cc. Mr. Harry Metz This contract contained, on page 9, the Benefit Fund clause set forth above (G.C. Exh. 2-c) providing benefits for union and nonunion workers. This document was never executed by Respondent. The document which was signed and executed by Respondent and the Union was intro- duced as General Counsel's Exhibit 5-f. In this document a new page 9 was substituted for the original page 9 of the document transmitted to Sheradsky by Kaplan. The new page 9 was typed on the stationary of Wall, Roth, and Sheradsky, attorneys at law, whereas all other pages were on the stationary of Kaplan and Shapiro. Page 9, however, although substituted, was not initialed or signed by any of the parties or attorneys. Sheradsky testified that after he received General Counsel's Exhibit 2-c from Kaplan he called Kaplan, told him he was going to make certain changes in it, made these changes, including the substituted page 9, and sent it to Respondent. Levi signed the contract for Respondent. Sheradsky was not sure whether the contract was returned to him or sent by Respondent to Kaplan.3 He did state that Kaplan called him and told him he was forwarding it to the main office of the Union in New York. He could recall discussion about page 9 with Kaplan, presumably after Respondent signed the modified contract. The purport of this testimony is that Kaplan, at least, was aware of the change made in the contract by the substitution of page 9. Kaplan's testimony is that after June 1 he had no conversation with Sheradsky regarding the benefit clause until 1968. (In 1968 the parties submitted a dispute concerning the contract to arbitration and this may have been the occasion when Kaplan learned of the substitu- tion.) I credit Kaplan. All of the documentary testimony supports Kaplan. What is incredible to me is not only is there no documentary testimony to indicate that Kaplan or the Union retreated from their fixed position on so important a clause, but that substituted page 9 was neither 3 I do not find the itinerary of the contract after its signature by Levi important in the absence of any showing that the change was agreed upon by either Metz or Kaplan 261 signed nor initialed by either of the parties or their representatives. A prudent lawyer does not make changes in a proposed contract without evidence in writing that the changes had been agreed upon. I therefore conclude that, until November 1967, when new counsel for Respondent discovered the unlawful discrimination with respect to payments under the fund, the Union at all times believed that the contract in effect between the parties was that submitted by Kaplan. Sometime after Bruckner & Greene were retained by Respondent the change in the benefit clause was discovered and on or about November 27, 1967, an adjustment was made by Respondent (G.C. Exh. 5-i), although the contract itself does not appear to have been modified to conform to the adjustment. In any event, and despite the survival as a matter of form of the unlawful clause, I find payments were made as required by law. 2. Conclusions Based on the foregoing I find that the unlawful benefit clause could not serve to deprive the Union of its representative status nor could the Respondent assert a good-faith doubt based on an unlawful clause in a contract substituted after its execution by the Union and without notice to or knowledge upon the part of the Union. It is a fundamental proposition of law that a man may not profit by his own wrongdoing. B. The Arbitration Award Respondent does not, in its brief, advance what I understood to be its contention at the hearing; i.e., that the arbitration award was determinative of certain of the issues in this proceeding. For what it is worth a hearing was held pursuant to the contract on April 4, 1968, before Herbert A. Kuvin, arbitrator, at the request of the Union. The issues posted to the arbitrator were: (1) Whether Respondent failed to post a notice required by article III, section 2, of the contract. (2) Whether Respondent failed to make certain payments to the Benefit Fund required by article XV of the contract. (3) Whether Respondent failed to permit access to the shop by union representatives of the contract. The arbitrator decided all issues in favor of the Respondent.4 I find these issues irrelevant to the issues in this proceeding and the decision of the arbitrator not dispositive of any of the issues of the instant case .5 C. Violations of Section 8(a)(1), the Majority Status of the Union, and Violations of Section 8(a)(5) 1. Levi's speeches, the Union's majority, and the refusal to recognize the Union Alleged violations of Section 8(a)(1) and (5) and the issue of the Respondent's good faith doubt of the Union's majority status are so intertwined as to compel combined recitation. By letter dated only "January, 1968," Respondent 4 Resp Exh 7 5 No record was made of the proceedings before the arbitrator so no issues of contradiction in testimony nor of credibility are raised 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD addressed the following letter to its employees (G. C. Exh. 3-a).6 January, 1968 Ruth Menes: We are pleased to inform you that during the year 1967, Daisy's has placed in trust for you, $247.70 for vacations, holiday pay, health and welfare, unemploy- ment-severance, and retirement benefits. This is your money; you earned it and we paid it out on your behalf. However, we have heard rumors that some members have not been able to receive these benefits unless they first paid dues to a union. If this is so, we are as shocked as you must be that this practice is taking place. We wish to inform you that as an employee of Daisy's, you are entitled to all the benefits enjoyed by you and your fellow employees whether you are or are not a member of any union, and whether you pay or do not pay any union dues. To deny you these benefits because you have not joined a union or because you have not paid union dues is not only unfair to you and to us, but is completely unlawful and should be reported. We repeat, this is your money, regardless of whether you are or are not a member of any union, or have or have not paid union dues. Accordingly, we believe you deserve to be told of your money which we have set aside for you, and we have taken this opportunity to do so. Thank you for your good work during the past year. Sincerely, Renato Levi President This letter and particularly its reference to "rumors" appears to have been the first breach in the previously harmonious relations between Respondent and the Union.7 Menes mailed her letter to Metz and on January 29 Metz and the Union's business agent, Crost, met with Levi, Cohen, and Orvieto to protest the letter, stating the rumors were not true.8 According to Crost, Levi's reply was, "Okay, so I made a boo-boo, I shouldn't have sent the letter." Levi's testimony is that he heard the rumor through his production supervisor, Roberta Satterwhite, who told him the girls were complaining that they had to be union members and to have paid their dues to receive vacation benefits from the Union .9 Ruth Menes, the Union's shop 8 G. C Exh. 3-a is addressed to Ruth Menes, but Levi testified that when Respondent issued its W-2 form to employees in January 1968, it issued a similar and accompanying letter to each employee setting forth the amount placed in trust for each employee 7 There had, at least, been no strikes and no arbitration proceedings affecting relations between the parties during the bargaining relationship 8 Cohen was Respondent's office manager, Orvieto was Levi's brother- in-law. 9 Eileen McGowan testified that when her daughter was leaving for Germany in 1967 she and her daughter went to the union hall and were told they were 2 months in arrears in union dues which would have to be paid before the checks were issued. McGowan stated she made out her steward, testified that following the issuance of this letter she received inquiries from employees asking whether Levi had put their money in trust and how the money would be paid them. Subsequently, Respondent held meetings with its em- ployees on February 23 and March 8 and 18. Ruth Menes, whom I find was a credible witness,i° testified that all were held at the lunchroom, and that the first meeting was attended by union (or unit) employees.ii At this meeting, according to Menes, Levi mentioned improvements to the plant and then mentioned a booklet which he had had printed explaining the benefits which were received by employees not covered by the bargaining contract. (These included office employees, stockroom employees, and maintenance employees.) The booklet was printed in English and later in Spanish. (G.C. Exhs. 4-a and 4-b.) The booklet was prepared by Eli Cohen, office manager, who testified that he had spent about 1 1/2 years working on it and that it was completed in February 1968. Levi told the employees what benefits the nonunit employees were getting and pointed to a large cardboard box which contained some 200 booklets and told the employees to take one home and read it. Levi testified that he addressed himself to the nonunit employees, although he explained that both unit and nonunit employees ate in the same lunchroom. (The meeting was called shortly after 12 noon, during the lunch hour.) Menes testified to this talk given by Levi as follows: Then he went on to speak of a booklet that he had just had printed and he said that this booklet showed the benefits that he was giving to his other employees, the office help and the stockroom, supervisory force, and the maintenance employees. After he had had it printed he thought that it was a very excellent booklet and he was very proud of it and he wanted us to see the booklet so we could see what his other employees were getting. A. (Continuing) He told us that he wanted us to take it home and read it and think about it. Then he went on to say that he wanted us all to feel that we were one big happy family with the exception of a certain few with whom he would never get along with. He said then that if we had any problems we were not to discuss them with our co-workers or anyone outside of the shop, we were to take them directly to the supervisor first. Then he wanted us to also know that his door was always open to us at any time, that he would be glad to talk to us at any time. personal check for $ 18 and reported the incident to the other girls at the plant The Union's bookkeeper, Helen Gutterman , testified that McGowan and her daughter both received vacation checks in June . (G C Exh. 18-a through 18-h) 10 In making credibility findings it must be remembered that the witnesses were testifying to events which took place more than I year before hearing and that inaccuracies and faulty recollection were inevitable ii Levi testified that both unit and nonunit employees attended the meeting and other testimony indicates that this was the fact. (Menes also testified that the announcement of the meeting stated it was for all employees) DAISY'S ORIGINALS, INC., OF MIAMI 263 Q. (By Mr. Grossman) Did you see any booklet? A. He pointed to a large cardboard-well, so big-carton that he had carried upstairs himself and he told us all to take the booklet and that's when he told us to take it home and read it. These booklets were there in that box and everybody took one. Shortly thereafter a meeting was held at the plant between Crost, Menes, and the shop committee, represent- ing the Union and Levi, Satterwhite, Cohen, and Orvieto, representing the Respondent. Crost protested the distribu- tion of Respondent's booklet, stating that it was harmful to the Union, particularly at a time when antiunion petitions were being circulated in the shop.iz Levi's reply to the protest was that the booklet had been in preparation for 2 years and did not damage the Union. He also stated that he would put a stop to the circulation of any antiunion petition during working hours. Crost, according to Levi, asked to speak to two employees who Crost thought were circulating the petition. They were called in and their testimony admitting the charge is set forth infra, Sec. III, C, 2. During this same meeting Crost asked Levi if he were willing to negotiate a new contract and Levi told him the request was premature. During the first week in March, according to Menes, she had a conversation with Levi and Satterwhite. Her testimony reads: Q. What did they say and what did you say, if anything? A. Mr. Levi told me that he had noticed that my attitude had changed within the past couple of weeks and he told me that my first loyalty should be with the Company, after all, I worked there and I earned my living there, and I told him that I-that my first loyalty would be to the Union and the people that had elected me and I also told him that I didn't like the fact that he had put out the letter and distributed the booklet and was also allowing these decertification petitions to be circulated in the plant. I said, "I want to know," I said, "I feel that you are definitely out to break the Union and before you break the Union in the shop, we will strike." Q. What was Mr. Levi's response, if any? A. Well, he kind of laughed and said, "You go ahead and strike." He said, "Go ahead, you will see what will happen." Q. What did you say, if anything? A. I asked him what would happen and he said, "Well, you won't be able to work in another shop." Levi and Satterwhite deny that such a meeting took place. On March 8 Levi called a second meeting of his employees. Levi testified that he read a document (Resp. Exh. 16) to his employees.13 This document reads: Reason for talk: Rumors circulating past several days. I am upset and angry and feel that both you and I have been vilified and slandered. I help bring this union into this plant many years ago. Obviously I am not opposed to collective bargaining. I have and will continue to do all that the law requires of me. However, I am chiefly concerned about the welfare pf my employees and our company. There have been rumors of a strike on February 22 and when we were absent. I think it would be terribly unfair to you and to us if this union or some small clique of employees try to strike our premises. I feel it only fair to warn that clique that any economic strike of this company will be subject to immediate and permanent replacement. I want to say that I have been very much upset by the rumors that some small group has started in this plant. And I want to assure you that your company is not going to take away any benefits which you enjoy. Because that is the only way we can both make money and be happy in our work. I am more concerned with a profitable return for my time and for your time than I am for some small clique of employees or some power group within this union or any other union. Therefore I must talk to you to set the record straight. Apparently these rumors were started as a result of our issuing the Employees Booklet describing the benefits at Daisy's. I said I was proud of this booklet and I still am. I am proud of the fact that these employees earned these benefits and they were given to them for that reason. There are rumors that since we gave the benefits, we will take them away. This is stupid. We are concerned with keeping good and satisfied employees. We cannot do this without paying them well and treating them with dignity. We gave the benefits in this booklet because the employees earned them and because it benefits us as much as the employees to be well paid and well thought of. These benefits are not going to be taken away or reduced. Instead they are going to be increased as much as possible and as quickly as possible. It has always been my position that a company cannot exist except for the employees, and cannot make money unless the employees make money and are happy with their jobs. A company cannot progress unless the employees progress. and I am determined to continue progressing. and I am determined to keep the employees progress- ing. I am angry and puzzled by the little political groups that have tried to disrupt our shop. And I assume that you are just as angry. As I explained to you before, there has been a consistent 12 This is the first indication in the record that antiunion petitions were being circulated 13 Menes testified to what Levi said and her testimony does not differ substantially from Resp. Exh 16. Menes was testifying from a recollection going back more than I year 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rumor that the employees under the ILGWU contract cannot get benefits unless they are members of the union. This is a he. And I believe it is a terrible thing for anyone to mislead you in this manner. I want to state clearly that your union membership or lack of union membership is your business. But any employee working here will get all the benefits that the other contract employees get, regardless of whether they are a member of the union, or are not members of the union or if they withdraw from the union. And regardless of whether or not they have signed or have revoked a union dues checkoff card. It is unlawful to force you to join a union in the State of Florida. And if anybody tells you anything to the contrary they are lying to you. There have also been rumors that certain employees have been threatened and coerced by various other employees or any other persons. I will guarantee you that this will be stopped in this shop. If there are any instances of this occurring, I want you to report them to me and I will take care of it. Also if any supervisor or management representative threatens or coerces any of you about the union let me know about that and I will take care of it. In conclusion I want to repeat that the 35 hour work week will never be taken away no matter what. Daisy's Originals Inc. did not come this far by not treating people well. Menes did testify that at this meeting Levi apologized to the employees because he had not had the booklet translated into Spanish and distributed translations at the meeting. A cutter named Gus Rodriguez (cutters were included in the bargaining unit) asked Levi if he would be eligible to receive insurance as provided in the booklet and Levi told him he would have to make up his own mind and go either way gesturing with his right and then with his left hand. When Menes asked Levi what decision the employ- ees had to make he told her, "Don't vote for the Union." i4 Levi testified that when Rodriguez asked him about receiving insurance benefits Levi told him he could not receive them, that Levi had paid his welfare benefits to the Union and that he should go to the Union, and that the booklet benefits were for nonunion employees. Levi denied mentioning voting for or against the Union or going one way or the other. A third meeting was held on March 18. The employees were notified by Satterwhite about 3:30 to go to the lunchroom where, in addition to the usual representatives of Respondent,15 Attorneys Bruckner and Greene were present. Again Levi read a brief, prepared statement (Resp. Exh. 17). This read: First, I must tell you why it was necessary to call this meeting at this time, and why none of you can work overtime this afternoon. As you know, we have been working overtime fairly consistently lately, but last Friday I received this telegram: (Read Telegram) Since our contract with the Union has not yet expired, then we cannot give you overtime work this afternoon. I called this meeting because as you undoubtedly know, I have received confidential petitions and letters signed by most of you, saying that you do not want to be represented by ILGWU. In fact, a clear majority of you have sent these letters and petitions to me and the names are still coming in. Since this is such a complicated area, and since I WANT TO MAKE ABSOLUTELY SURE THAT ALL OF YOU GET ALL THE BENEFITS TO WHICH you are entitled, i have called in our labor lawyer to explain what is going on to you. The telegram referred to (Resp. Exh. 18) read: Daisys Originals Inc. 6270 North West 37 Ave Miami Flo please be advised that under no circumstances will the union authorize overtime work for any of your employees on Monday March 18 1968. This is because of a meeting called by the union for the employees in your shop Local 415 International Ladies Garment Workers Union AFL-CIO (51). Alan A. Bruckner testified that he read from a prepared talk but abandoned it when he was interrupted by questions. According to Bruckner he read the following portion of his prepared talk (Resp. Exh. 21): We have been informed by your management, Mr. Levi, that he has received a considerable number of letters and petitions signed by employees stating that ,they no longer desire to be represented by the Union. These petitions and letters are still arriving and are being kept in strict confidence. We have closely examined these letters and petitions and have deter- mined that they do in fact represent a clear majority of the employees. Obviously where the Company, as is the case here, has been notified by a clear majority of the employees that they do not wish to be represented by the Union, then the Company may not and as a matter of law cannot continue to recognize that Union. Accordingly we are notifying the Union immediately that under these circumstances we will comply with the wishes of the majority and we will not continue to recognize the Union. A copy of this communication will be posted on the bulletin board as soon as it is dispatched. When Bruckner was interrupted and discontinued his speech there were questions from the floor which he attempted to answer.is A number of employees led by Menes then left the meeting and the meeting was terminated. Those employees who left the meeting returned 14 This testimony is corroborated, in substance, by that of Gustavo 16 Menes testified that she asked Bruckner how he could decertify the Rodriguez Union without going through the National Labor Relations Board 15 Levi, Satterwhite, and Cohen attended all the meetings together with According to Menes, Bruckner did not give her a direct answer Respondent's lower echelon supervisors DAISY'S ORIGINALS, INC., OF MIAMI to work but were told by Satterwhite that they must either return to the meeting or check out. At least 10 employees checked out and were not paid for the last 15 minutes of working time on that day.17 Exhaustive testimony was taken respecting the majority status of the Union, whether Respondent's unfair labor practices contributed to such loss of majority and whether Respondent had a good-faith doubt of the Union's majority. The Union's checkoff list for the period of February, March, and April, 1968 (G.C. Exh. 5-g) shows that 90 employees were on checkoff in February, 91 in March, and 84 in April. It was stipulated at the hearing that from March 1 until May 31, 1968, there were 108 employees in the bargaining unit.18 The General Counsel concedes that during the period between January and March 8, 1968,19 some 15 letters were submitted by employees disavowing their union representation. Therefore, prior to March 8, some 76 employees on checkoff could fairly be counted as still designating the Union as their bargaining representa- tive. Between March 8 and 18, the date when Bruckner informed the employees Respondent would no longer recognize the Union (although it would abide by the contract until May 31), Respondent received 16 letters, purportedly from union members indicating they did not wish to be recognized by the Union. (All but two of these letters were dated March 8 or 9.) 20 During this same period Respondent received 10 so-called petitions signed by 54 employees stating they no longer wished representation by the Union. (G. C. Exh. 8-nn through 8-ww.)21 Eight of these petitions, prepared in the same handwriting, were dated March 12 and two were dated March 16. Considering only the letters the record establishes that, by March 18, 60 employees could be counted as continuing their designation of the Union. This, however, is still a majority. Considering the petitions 54 had withdrawn of a total of 108, leaving the Union without a majority. In addition two employees signed letters of withdrawal although their names do not appear on the petitions. (Felita Morales and Manna Pulley, G. C. Exhs. 8-q and 8-11.) Felicita Morales denied that the signature on General Counsel 8-q was hers but admitted that the signature on another letter of repudiation addressed to Levi was hers. I would therefore add these two employees to those repudiating the Union prior to March 18.22 Bruckner in his brief talk to the employees on March 18 (Resp. Exh. 21, supra) told them that Respondent would no longer recognize the Union. I find this the date on which Respondent refused to bargain with the Union. On March 19 Respondent, through Bruckner and Greene, sent Respondent the following letter (Resp. Exh. 12): 17 This is alleged as a violation of Sec 8(aX3) and is discussed infra 18 G C Exh 9 Resp Exh 10 also states that there were 108 employees in the bargaining unit on April 4, 1%8. 19 The General Counsel apparently fixes March 8 as the date upon which majority status should be determined 20 In making this computation I have discounted two letters which appear to have been written by nonunion employees. 21 Respondent , in its brief, states that 59 valid signatures of employees repudiating the Union were received but does not indicate how his March 19, 1968 Local415 International Ladies Garment Workers Union 2841 N.W. Second Avenue Miami, Florida 33127 Gentlemen: 265 In order to comply with the applicable requirements of the National Labor Relations Act, as amended, and to preclude the automatic renewal of the collective bargaining agreement currently in effect between Daisy's Originals, Inc. and Local 415 ILGWU, this letter will serve as written notice of the employer's intent to terminate the said agreement upon its expiration date of May 31, 1968. Additionally, we wish to inform you that a majority of the employees within the bargaining unit have unequivocally declared that they do not wish to be represented for purposes of collective bargaining by your organization. Sincerely yours, Bruckner & Greene Attorneys for Daisy's Originals, Inc. By ADG:saf cc. Daisy's Originals, Inc. The Umon responded by letter dated March 26 (G. C. Exh. 7-a) directed to Respondent. It reads: March 26, 1968 Daisy's Originals, Inc. 6270 N. W. 37th Avenue Miami, Florida 33147 Re: ILGWU - Daisy's Originals, Inc. 1968 Negotiations Gentlemen: As you know, the existing contract between Local No. 415, International Ladies' Garment Workers' Union and your company expires by its terms on May 31, 1968. Pursuant to Article XXXIV of the contract, you are advised that my client, the Umon, desires to change and modify the terms of the existing agreement. Therefore, we hereby make demand upon you to participate with us in negotiations designed to secure a collective bargaining agreement which shall become effective June 1, 1968. Within a few days we shall computation was made 22 The petitions indicate that they were signed by 18 employees who were not on checkoff Therefore the computation has been based on the total of 108 employees within the bargaining unit On the basis of her own testimony I have disregarded the repudiation letter of Adell Olliff, see infra My final computation is that 55 authentic repudiations of union authority were received from the total unit of 108 . The Union did not, on March 18, represent a majority of the employees in the appropriate unit 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD furnish you, in writing, with a list of our demands for inclusion in the new contract. This office has received the letter from Messrs. Bruckner and Greene dated March 19, 1968, in which letter your lawyers take the position that a majority of the employees within the bargaining unit have "unequivocally declared that they do not wish to be represented" by my client. Our response to this is: 1. The statement is untrue. 2. The overwhelming majority of your employees are Union members, and they continue to desire the Union's representation. Daisy's Originals, Inc. March 26, 1968 Page Two I propose the following times and places for the initial negotiating session and would appreciate your advising the Union or the undersigned as to which time and place is most convenient to you. Tuesday, April 2,1968,4:00 P.M., my offices; Wednesday, April 3,1968,4:00 P.M., my offices, Friday, April 5,1968,2:00 P.M., my offices. Sincerely, KAPLAN AND SHAPIRO By Herbert L. Kaplan uix/ig Certified Mail-Return cc Mr Harry Metz Receipt Requested cc. Mr . Morton Shapiro cc Bruckner & Greene, Raga. ( Certified Mail- RaR ) cc Mrs Ruth Menes (To be posted on Union bulletin board.) On March 29 Respondent replied (G. C. Exh. 7-e) offering to submit its evidence to an impartial third party. On April 2, Kaplan wrote Greene (G. C. Exh. 7-b) protesting Respondent's conduct and received a reply from Greene on April 4 (G. C. Exh. 7-c.) The letters, while vituperative, contribute little to the issues . On April 4 Respondent filed a representation petition with National Labor Relations Board (Resp. Exh. 10). The Union did not agree to an election, asserting the contract as a bar and the petition was withdrawn. On May 3 the unfair labor practice charges were filed and on the same day the Union struck. 2. Respondent's knowledge or sponsorship of the antiunion letters and petitions Paragraph 8(b) of the complaint alleges: 23 Trial Examiner hereby corrects the spelling of Crost to Krost 24 The first petitions, as distinguished from the letters, were dated March 12, after the date of this meeting. 25 Respondent's Employees Booklet contained, Chapt. V, p 11, par. 6, the following provisions. Solicitation of employees, of any kind, during working times if prohibited Distribution of literature of any kind at any time in Beginning on or about February 1, 1966, and continu- ing thereafter, Respondent permitted employees on Respondent's premises to prepare, and solicit signatures of other employees to letters and petitions to Respon- dent stating that the signatory did not wish to be represented by the Union, with the knowledge of said activity by President Levi and Production Supervisor Satterwhite, and despite protest thereof by the Union to Respondent. After Levi's first talk on February 23, Krost,23 when he protested the distribution of Respondent's booklets, told Levi that antiunion petitions were being circulated in the shop. Krost stated Levi told him he was unaware of this.24 Later, after the March 8 meeting, Krost again informed Levi that antiunion petitions were being circulated and two employees, charged by Krost with circulating the petitions, were called in. These were employees Antonia De Los Reyes and Eleanor Lepn. De Los Reyes admitted, according to Krost, that she had been circulating antiunion petitions and Levi's reply was that she had a right to do it. De Los Reyes testified that all the petitions which were signed in her presence were signed on nonworking time. Lepn was not called as a witness.25 General Counsel offered the testimony of employee witnesses to establish that solicitation occurred within the plant during working hours. Julia Diaz testified that after the first meeting she approached De Los Reyes at her machine while Reyes was working and that Reyes told her that the only way she could keep working was to "sign a letter to get the union out of the factory." The time was fixed as "close to noon." Diaz made no reply. Two weeks later Diaz met Reyes at a water fountain and De Los Reyes again asked her to sign an antiunion letter. Diaz told her she would not sign such a letter without reading it first and asked De Los Reyes to bring it to the parking lot the next day. De Los Reyes did not bring the letter and, according to General Counsel's exhibits, Diaz never signed a letter or a petition repudiating the Union. Accepting Diaz's testimony in full it does not even suggest management knowledge or approval of the activity of De Los Reyes by Respondent. Maria Miller testified that Eileen McGowan, another employee,26 came to her between the first and second meetings and told her she was wanted on the second floor. There Miller met Felicita Morales and Aurora Salvat who took her into the lunchroom. There she was asked to sign the "company's paper," told she would lose her job if she did not and that she was the last one to sign. No "paper" was offered to her to sign and she never signed a letter or petition. Again, accepting Miller's testimony, there is no evidence that any representative of management had any knowledge of the incident. Malcolm MacNeil, a cutter, testified that in a period of time fixed as between the second and third meetings, Satterwhite and Harold Bottorf, a supervisor of the cutters, were having a conversation and that Bottorf called to him, working areas is prohibited The rule, as to the distribution of literature, is presumptively unlawful under Walton Manufacturing Company, 126 NLRB 697, 699. This issue, however, was neither pleaded nor litigated 26 To the extent that the antiunion employees had a leader, McGowan was it DAISY'S ORIGINALS, INC., OF MIAMI 267 "Mac, notches." This meant, according to MacNeil, that he had failed to make the notches on one of his bundles. He went upstairs where the bundles were and Eileen McGow- an asked him to go into the lunchroom . She gave him a paper to sign and he refused to sign . When he returned to the cutting room he told another cutter he had been asked to sign a paper against the Union and had refused. He reported this incident to the steward for the cutters. Satterwhite's testimony simply stated that she saw MacNeil go upstairs and make notches and did not know what he did thereafter . Bottorf did not testify respecting this incident . McGowan agreed that this incident took place on working time but denied that either Levi or Satterwhite told her to ask MacNeil to sign the petition. I credit McGowan on this point and again find that there was neither knowledge of nor participation by Respondent in this solicitation. Mable Schleyer testified that between the second and third meetings an employee named Pearl DuVall asked her to sign a paper stating the employees did not want the Union to represent them . Schleyer testified that the request was made on working time and that she refused . Thereafter, according to Schleyer, she had personal problems with DuVall in their working relationships . Satterwhite, a day or two later called Schleyer to her office and asked her what the trouble was between DuVall and her. Schleyer mentioned the paper incident and told Satterwhite there was tension in the shop. Satterwhite told her she would be glad when it was over and she (Satterwhite) could get rid of some of the girls . Thereafter Satterwhite criticized her work and "hollered" at her. This testimony I find too ambiguous to support any conclusion.27 Angelina Mesa testified that after the first meeting she had a conversation with Angeline De Los Reyes in her car at lunchtime (the topic of conversation was not revealed); a few weeks later she had a conversation with Carmen Fernandez as they passed on the stairs; and when she went upstairs she found the girls were signing an antiunion petition . Fernandez asked her why she did not sign and she made no reply. A few days later she signed Salvat's petition in the lunchroom but on working time (G. C. Exh. 8(a)). No representation of management was present. Gustavo Rodriguez, a cutter, testified that he had a conversation with Antonia De Los Reyes about a week after the second meeting during lunchtime . Later he testified that De Los Reyes called him outside after lunchtime and then that the conversation took place in a room in the plant . De Los Reyes told him he should sign the antiunion petition because the company "were nice people." He told her he could do nothing because he was a member of the Union. When he returned to his work station his foreman, Harold Bottorf, asked him where he had been and he told Bottorf a lady had asked him to sign an antiunion petition . Bottorf said nothing . De Los Reyes testified that the incident took place on the parking lot during lunchtime and that she thought she got back on time. Bottorf denied that Rodriguez was late for work but, 27 Specifically, I do not find that Satterwhite's remarks established a threat to fire union members 28 Resp Exh . 20-a through 20-n 29 Satterwhite testified that she and Olliff had been friendly for 10 years If this were true it would be even more difficult to believe that Olliff more important, Respondent introduced the timecards of Rodriguez to show that he was not late returning from the lunchbreak during that week .28 I do not find that the solicitation, such as it was, took place on working time. Daniel Benitez, a bundle boy, testified that sometime before the third meeting Morales asked him to sign the antiunion petition and he refused . The request was made during working time . About 10 days later, Abe Joseph, another employee, asked him to sign "against the Union" and he refused. His testimony is uncontradicted. Adell Olliff testified that she had a conversation with Satterwhite in the plant on March 15 in which Satterwhite told her she had heard she (Olliff) was going to walk out and asked her to stay with her . She then told Olliff to get on the bandwagon and that she had better sign up because they had just about enough names. On Sunday, March 17, Olliff called Satterwhite to ask what she meant and Satterwhite again told her to stick with her and told Olliff to get her name on the paper because "they had just about enough to do what they wanted to do." Satterwhite's testimony was that she did not refer to any bandwagon but may have referred to a "gravy train," an expression used to denote work that was easier than average. She explicitly denied telling Olliff that she should stick with her and that she would not regret it. She added, "I very well know that I was not supposed to discuss anything with employees pertaining to the petition." She denied having any telephone conversation with Olliff on Sunday, March 17. Despite Satterwhite's denial and despite the fact that this is the only witness who testified that Satterwhite encour- aged her to sign the antiunion petition-I have no difficulty in finding that by "signing up" Satterwhite meant signing the antiunion petition-I credit Olliff's testimony. I do not believe such testimony was a complete fabrication.29 About 10 or 15 minutes after Olliff's telephone conversa- tion with Satterwhite she received a call from De Los Reyes and received a visit from her about 6 p.m. De Los Reyes denied that she had been talking to Satterwhite and asked her to sign the antiunion petition and Olliff signed, at the same time telling her, "I am going to sign this paper , but let me tell you one thing, this is one thing I am not signing against because I don't like it." She later added that she was signing just to get "them" off her back. Under the circumstances I do not find this a valid renunciation.30 This is the testimony upon which the General Counsel relies to establish knowledge on the part of Respondent that antiunion activity was taking place. D. Conclusions 1. The contract, the speeches, and the booklet The substance of this case rests on the 8(a)(5) allegation. The authoritative word on this issue, where the Union has obtained a majority and Respondent has made a fair election impossible, is N.L.R.B. v. Gissel Packing Company, would perjure herself to damage Satterwhite. 30 Had Cliff been signing a union authorization card on behalf of the Union as unambiguous as the statement of repudiation, her testimony as to her subjective reasons for signing would have been rejected and the card counted. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., 395 U.S. 575, The Sinclair Company v. N.L.R B., 395 U.S. 575. The facts in the instant case are not squarely apposite with those decided by the Supreme Court in Gissel. Here the Union had not, through organizational efforts, obtained a majority of signed authorization cards and then see that majority dissipated through the unfair labor practices of the Employer. This Union had obtained both recognitional and contractual status and maintained that status over a long period of years. In January, February, and March, 1968, it had checkoff authorizations from 90, 91, and 89 employees in the appropriate unit. On March 18, 1968, Respondent had received letters or petitions repudiat- ing the Union's authority from 55 of the 108 employees in the unit. While the facts are different I do not find them distinguishable as to rationale and I would find the Court's decision in Gissel controlling here. Thus the issue squarely presented is whether the Union's loss of majority was due to Respondent's unfair labor practices. (The issue of the means by which majority status was obtained is not before me.) I find that it was for the following reasons. 1. The first breach of good faith occurred when counsel for Respondent substituted his own page 9 for the same page of the Union's proposed contract thereby cloaking the contract with illegality.31 While this maneuver favored the union members of the unit as against the nonunion members, it also placed the Union, albeit unknown to it, in the position of being party to an unlawful and discriminato- ry contract. Inevitably this discrimination, newly imposed, would ultimately damage the Union's prestige within the unit and serve to create dissatisfaction with the Union as a bargaining agent. It is true that when the unlawful clause was discovered by its present counsel, Bruckner and Greene, restoration was prompt, but it is equally true that the fact that the contract contained an unlawful clause was offered by counsel for Respondent as sufficient to rebut the presumption of the Union's majority status. I do not find that because of this clause the Union did not represent an uncoerced majority of the employees.32 The remedy for the unlawful clause was by way of full payment for nonmem- bers to the trust, voluntarily, as here, or by issuance of complaint under the appropriate sections of the statute. The question of the majority status of the Union is an entirely separate issue. I am not, of course, making any finding of a violation of the Act on the part of Respondent based on the illegal contract.33 I do think that Respondent's conduct with respect to the contract is a factor to be evaluated in appraising its overall conduct. 2. In January 1968, Respondent dispatched a letter to its employees attached to its W-2 form. (G.C. Exh. 3-a, supra.) In this letter President Levi referred to the fact that Respondent had heard rumors that unit employees would not receive benefits unless they had first paid dues to the Union. (Levi actually referred to members, not unit 31 The contract as executed by the Respondent was in violation of Sec 8(a)(1) and (3) of the Act. Since the complaint contains no such allegation and it has not been urged by the General Counsel either at the hearing or in his brief, no finding is made. 32 I find the situation clearly distinguishable from that in which employees are forced to join a union under an unlawful union -security clause. 33 The complaint contains no such allegation employees.) Levi expressed shock and informed the employees that they were entitled to all the benefits whether they were members or not and whether they paid dues or not. This was an accurate statement of Respondent's position. Respondent's reference to rumors, however, can only be taken to mean that it had heard rumors that the Union was not conforming to this policy and was acting in derogation of the statute . Examining Respondent's eviden- ce of such "rumors" the record indicates that only two employees, McGowan and her daughter Shawski, claimed to have been deprived of benefits because they had not paid dues. On the record I have found McGowan's claim unsupported. It should also be noted that McGowan claimed her vacation pay was denied in June 1967. While she may have, as she testified, told other employees of her failure to receive vacation benefits it is difficult to believe that her single claim (which included that of her daughter) could have survived to support a rumor in January 1968. There is no evidence that any other employee, whether union or nonunion was denied any benefits due under the contract. I therefore find that Respondent's reference to rumors were unsupported by any facts and that the reference was intended to denigrate the Union in the eyes of its employees.34 3. On February 23, Respondent, through Levi, had its first meeting with the employees, a meeting attended by both unit and nonunit employees. Prior to this meeting Respondent had received letters from some, although far from a majority of its employees, stating they no longer wished to be represented by the Union. To this meeting Levi brought a large cardboard box containing the statement of benefits for nonunit employees. Although Levi stated that he directed his explanation of the benefits to nonunit employees it would have been difficult if not impossible for him to segregate remarks made in the presence of both groups. While the unit employees may have and probably did understand that the benefits were av#ilable to nonunit employees only the matter does not rest there. Had Levi wished to confine his explanation of benefits to the nonunit employees he could have done so at a meeting restricted to the nonunit employees.35 Further, it would hardly have been necessary to prepare 200 booklets for the 50-odd nonunit employees. I think it apparent that the meeting and the distribution of the booklet were designed in part to impress the unit employees with benefits. Respondent was voluntarily granting its nonunit employees. While a clause-by-clause comparison of the benefits with those contained in the contract makes total evaluation difficult, I find that in the important categories of paid sick leave, life insurance, accidental death, hospital benefits, and surgical benefits those contained in the booklet were significantly greater than those set forth in the contract.36 Insurance and medical benefits have become vital factors in employee working conditions and I 34 The only reasonable conclusion that any employee could draw from this letter was that Respondent had heard rumors that the Union was denying benefits to employees and that Respondent was advising them that they were entitled to such benefits. 31 Levi's reasons for not holding a separate meeting are not only contradictory, but implausible. 36 G C. Exh 4-a, pp. 4 and 5, Resp. Exhs. 2 and 8, and G.C. Exh. 5-f DAISY'S ORIGINALS, INC., OF MIAMI 269 therefore find this disparity significant. I think that at this meeting Respondent continued its efforts to create dissatisfaction and dissension among the unit employees, including the union members. 4. At the second meeting held on March 8, Levi, according to his testimony, read from a prepared text, supra, sec. III,c,l, and at this meeting the Spanish translations of the "Employees Booklet" were distributed. In this speech Levi again referred to rumors that unit employees could not get the contract benefits unless they were members of the ILGWU and denounced the rumor as untrue. I find this statement a continuation of Levi's efforts to denigrate the Union. He also referred to rumors of a strike on February 22 by a "small clique" of employees, although the record supports no such threat.37 The general import of Levi's remarks was that Respondent would protect the rights of its employees despite rumors spread by the Union to the contrary. In the absence of evidence of such rumors, I find the March 8 speech part and parcel of a campaign, perhaps subtle and sophisticated, to increase dissension on the shop and weaken the Union's bargaining power. I find credible the testimony of Menes, supported by Rodriguez, that when Rodriguez asked if he were eligible for insurance he was told by Levi that he would have to go one way or the other, indicating by a wave of the booklet he held in his hand. The only reasonable inference to be drawn is that Rodriguez could stay with or leave the Union. This inference is, of course, subject to attack since the benefits of the booklet were for nonunit, not nonunion, employees. Levi, however, was a volatile character (from my observa- tion) not always given to fine rationalization before speaking. I also credit Menes that, when she asked Levi what other decisions the employees had to make, he told her not to vote for the Union. 5. On March 18 Levi made another short speech to his employees prior to introducing Bruckner and Greene, his attorneys. In this speech he referred to the petitions and letters he had received from employees stating they no longer wanted to be represented by the Union, supra. Bruckner then spoke from prepared notes, supra, and advised the employees that since Respondent had been notified by a "clear majority of its employees that they no longer wished to be represented by the Union it would no longer recognize the Union." There then followed the correspond- ence between the parties in which Respondent declined to recognize the Union and in which the Union demanded bargaining negotiations. (Resp. Exh. 12 and G.C. Exh. 7-a.) Other correspondence followed (G.C. Exh. 7-b, 7-c, 7-d, 7-e, 7-f, 7-g, and 7-h) in which the position of the parties became fixed. Respondent, while offering to have its evidence of repudiation of the Union submitted to a third party, refused to bargain. Respondent also, during the period following March 18, filed a petition for a 37 Menes, the shop steward and clearly the leader of the prounion employees, testified that she had heard no such rumor 39 There is no disclosure in the record of any reason why the employees, having enjoyed the benefits of collective bargaining over such a period of time, should suddenly repudiate its authority Having read the testimony of the witnesses respecting solicitation of repudiation letters, I find that the only arguments advanced were that the Respondent was a "good company" and that the employees did not need the Union I can only representation election with the Board which, upon advice from the Region, was subsequently withdrawn. Conceding, as one must, that the issue presented is as close as might be found, I find Respondent violated Section 8(a)(5) of the Act. Since the issue, both as to law and fact, is so close I do not believe extended dissertation by the Trial Examiner will contribute to the disposition of the case. The case properly goes to the Board for application of its expertise and then to the Court of Appeals for review. In finding Respondent guilty under the statue I do not find that the unfair labor practices committed were sufficiently flagrant so that an election could not be held or should be set aside under the Gissel rule. I would, however, lower the requirements of Gissel where the parties have engaged in collective bargaining for a period of some 14 years and the Union has been dispossessed of its bargaining status by Respondent's conduct, whether or not in flagrant violation of the Act.38 This is stretching Gissel to its farthest reaches, but where a Union has enjoyed continuous bargaining status I would apply a different standard than to those cases, which involved initial organizing activity in nonun- ion plants, which were before the Court in Gissel. I also find that the strike of the employees on May 3 was in direct response to Respondent's refusal to recognize the Union. In accord with my findings above I find the strike an unfair labor practice strike. 2. Sponsorship of the repudiation petitions and letters The record does not disclose either who or what provoked the letters and petitions circulated to revoke the Union's authority to represent the unit employees. Examining the testimony of the General Counsel's witnesses thoroughly I find no evidence, with the exception of the testimony of Olliff, that any representative of management participated in or was a witness to any of these solicitations. If the employees' testimony is to be read fairly it indicates that such solicitations occurred where they would not be observed and were conducted surrepti- tiously. The fact that an antiunion letter or petition may have been signed on company time does not render it invalid nor, ipso facto, convict the Respondent of either knowledge or complicity 39 I find no Board decisions indicating the proper guidelines for an employer in such a situation after he has been made aware that antiunion activity is taking place on his premises. The cases are in agreement that where the employer either participates in or sponsors such activity particularly if disparate restraints are placed upon union activity on his premises, he violates Section 8(a)(1). I do not find cases which define the employer's responsibility to police his own shop and which weigh his compliance with such responsibility. Having found that only 1 employee of the 108 within the bargaining unit was approached by a representative of management speculate as to by whom these ideas were implanted in the minds of employees or as to why such a spontaneous revolt should have arisen at such a fortuitous time No finding has been made on such speculation 39 I cannot agree with the contention of the General Counsel, advanced at the close of the hearing, that an employer is responsible for every antiunion statement made on his premises during working time This statement was made during a heated argument and was not urged in his brief 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the suggestion that she sign an antiunion petition, I find that Respondent neither participated in, sponsored, or condoned the circulation of either the letters or petitions. I recommend that the paragraph 8(b) of the complaint be dismissed. As to other alleged violations of Section 8(a)(1) I find no evidence to support paragraphs 8(h), (i), and (j) of the complaint.40 I do, however, find that Levi's statement to Menes that if she went on strike she would be blacklisted from employment in the industry a clear violation of Section 8(a)(1). I also find his statement to Menes that if the employees wanted to enjoy the benefits set forth in the "Employees Booklet" they should vote against the Union a violation. I also find that by indicating to employees at the March 8 meeting that they could enjoy the superior benefits of the booklet if they were not covered by the contract Respondent violated Section 8(a)(1) of the Act. It should be added that not every contention raised by the parties at the hearing and in their briefs, multitudinous and multifarious as they were, has been disposed of in this decision. No contention was too minor, isolated, or trivial to warrant litigation. Where no specific finding has been made it is because the Trial Examiner considers the issue irrelevant, the testimony insubstantial, or the issue lacked impact on the major issues.41 Directed by the Board 42 to take testimony not included within the scope of the complaint, I have considered that testimony and find [that it] not only exceeds any reasonable scope which might be given the complaint but is also irrelevant and incompetent. It has been disregarded in the making of findings herein. Counsel for Respondent raised the issue that the strike which started on May 3 was in violation of the contract and that the employees joining the strike lost their status as employees. The contract between the parties contained the following clause: ARTICLE XXVIII : NO-STRIKE, NO-LOCKOUT PLEDGES The Union agrees that it will not call, authorize or ratify a strike or stoppage during the life of this agreement, except for the Employer's failure to submit to arbitration or to comply with the decision of an 40 Par 8(h) presumably refers to an argument between Levi and Rolando Rodriguez discussed, infra. 41 I have, e.g, disregarded the testimony of Rolando Rodriguez, the cutter's steward, respecting his argument with Levi concerning layoffs The argument was brief but heated and bore no relation to the substance of the case. Not every argument between a steward and management can be converted into a violation of the Act because hasty and intemperate language was used. 42 The General Counsel took special appeal from a ruling of the Trial Examiner that the testimony of an employee as to what was said at a union meeting could be used to establish whether a stoke was an unfair labor strike or economic strike (This, at least, is the only purpose I can find in the offer of such testimony) The fact that the employees went on strike was clearly established. Their testimony as to their reasons would be merely self-serving If the Board wishes to state that such testimony is either relevant to or perhaps binding upon a Trial Examiner's finding on that crucial question then this case provides the proper vehicle The Trial Examiner also refused testimony respecting letters of resignation sent the Union after the strike vote by nonstriking employees It was not alleged in the complaint that these letters were sponsored by Respondent or that arbitrator. Should an unauthorized strike or stoppage of work by Union members occur, the Union's sole obligation shall be to endeavor in good faith, within twenty-four (24) hours after receipt of notice by registered mail, thereof from the Employer, to bring about the return to their work of its members who have stopped work. Upon the failure of any employees to return to work within said twenty-four (24) hour period, the Employer may at its option consider that such employees have abandoned their employment; but should the Employer reemploy such employees, it shall treat all such employees alike and shall not discriminate among them. Compliance by the Union in good faith with this provision shall be deemed full compliance with the Union's obligation hereunder. The Employer agrees that it will not order, authorize or ratify a lockout during the life of this agreement. Should a lockout occur, the Employer's sole obligation shall be to endeavor in good faith, within twenty-four (24) hours after receipt of notice by registered mail, thereof from the Union, to terminate the lockout and to reemploy the employees. Upon the failure of the Employer to do so within said twenty-four (24) hour period, the Union at its option may treat the matter as a dispute to be determined under the machinery for adjustment of disputes, as provided in this agreement, or may consider that the Employer has forfeited its rights under the agreement. I find this clause totally irrelevant to the issues before me. Concern must lie with the status of employees on March 18, the date when Respondent refused to bargain. If the obligation existed on that date the subsequent conduct of the employees could not forfeit it. Whether or not the striking employees might have forfeited another right, i.e., their right to reinstatement after an unconditional offer to return must be decided when that question is presented. The Violation of Section 8(a)(3) As it has been set forth, supra, Respondent, through Satterwhite, told all employees who left the meeting of March 18 that they could either return to the meeting or check out. Some 1043 employees checked out and were docked for 15 minutes in lost time. It was the contention of the General Counsel that it was a Respondent participated in their preparation and delivery Since that General Counsel had almost I year in which to investigate his case between the filing of the charge and the hearing and made no motion to amend his complaint it would appear that, were he not the General Counsel, he might be guilty, among other things, of lathes The Board predictably, ex parse and in camera, overruled the Trial Examiner and directed he take such testimony The telegraphic correspondence relating to the appeal has been set forth as Appendixes B, C, and D. (G C Exh 10, 12, and 13 ) Neither the pleadings nor the record was before the Board when the ruling was made nor was the ruling signed by any Board member The only name appearing in the telegram of reversal was that of John C. Truesdale, Assistant Executive Secretary of the Board While the Trial Examiner is aware that the Office of the Executive Secretary would not overrule a Trial Examiner without at least notice to the Board Respondent's counsel is not always privy to the processes of the Board Had either the authenticity or the authorization of the telegram been questioned a difficult problem would have been posed 93 This is the number named in the complaint as discriminatees under Sec 8(a)(3) of the Act DAISY'S ORIGINALS, INC., OF MIAMI 271 violation of Section 8(a)(3) of the Act to require employees to attend a meeting at which the Respondent engaged in conduct in violation of Section 8(a)(1) of the Act or, in the alternative, to check out despite their willingness to work. Regardless, I would find that the loss of 15 minutes in working time constituted, if it constituted any violation at all, a de minimis violation of the Act. I would therefore recommend dismissal of the allegation respecting Section 8(a)(1) in its entirety. APPENDIX B ALAN A. BRUCKNER, ESQUIRE 232 SECURITY TRUST BUILDING 119 EAST FLAGLER STREET MIAMI, FLORIDA 33131 ALLAN GREENE, ESQUIRE 232 SECURITY TRUST BUILDING 119 EAST FLAGLER STREET MIAMI , FLORIDA 33131 IV. THE REMEDY Having found Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist thereform and, upon request, bargain collectively with the Union.44 I shall also recommend that it take certain affirmative action necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings and conclusions and the entire record herein, I make the following: CONCLUSIONS OF LAW 1. By telling an employee that she would be blacklisted from employment in the industry if she went on strike; by telling an employee in the presence of other employees that if she wanted the benefits granted nonunit employees she should vote against the Union and by indicating to its employees that nonunit employees enjoyed greater benefits than unit employees, Respondent violated Section 8(a)(1) of the Act. 2. By refusing at all times since March 18, 1968, to bargain collectively with the Union as the exclusive bargaining agent of the employees in the unit found appropriate herein, Respondent violated Section 8(a)(5) and (1) of the Act. 3. The unit appropriate for the purposes of collective bargaining is: All production workers at Respondent's Miami, Florida plant, but excluding all other employees, all office clerical employees, guards and supervisors as defined by the Act 45 4. The strike on May 3, 1968, was an unfair labor practice strike. [Recommended Order omitted from publication.] 44 While I have found that the strike which took place on May 3, 1968, was an unfair labor practice strike , I shall not recommend a prospective order requiring Respondent to reinstate unfair labor practice strikers upon their unconditional offer to return The strike took place during the contract term and the issue as to breach of the no-strike clause in the contract and the effect of such breach upon the right to return was not litigated before me The decisions on this point require close scrutiny of the facts and I do not find that the record in this case, on an issue not contained within the pleadings , provides sufficient disclosure of the facts (Cf Mastro Plastics, v. N L R B, 350 U S 270, National Electric Products Corporation, 80 NLR 995, Mid-West Metallic Products, Inc, 121 NLRB 1317, Arlan's Department Store of Michigan, Inc, 133 NLRB 802.) 45 The appropriateness of the unit was not disputed HERBERT L . KAPLAN, ESQUIRE 1674 MERIDIAN AVENUE, MIAMI BEACH FLORIDA 33139 SEYMOUR A. GOPMAN, ESQUIRE ONE LINCOLN ROAD BUILDING, MIAMI BEACH, FLORIDA 33139 JOHN F . FUNKE, TX, NLRB, 51 SW FIRST AVE., MIAMI, FLORIDA RE: DAISY'S ORIGINALS, INC. OF MIAMI , 12-CA--4217. HEARING NOW BEING CONDUCTED IN MIAMI BEFORE TX JOHN FUNKE, COUNSEL FOR GENERAL COUNSEL RESPECTFULLY REQUESTS SPECIAL PERMISSION TO APPEAL AND HEREBY DOES APPEAL, PURSUANT TO SECTION 102.26 OF THE BOARD'S RULES AND REGULATIONS, SERIES 8, AS AMENDED, FROM THE FOLLOWING RULINGS OF THE TRIAL EXAMINER : (1) RULING EXCLUDING TESTIMONY OF WITNESS VIOLET REID AS TO EVENTS AT A UNION MEETING THE DAY BEFORE THE STRIKE BEGAN , AND (2) STRIKING TESTIMONY OF WITNESS DORIS FULTON AND TX REFUSAL TO RECEIVE ANY OTHER EVIDENCE ESTABLISHING THAT RESPONDENT SOLICITED SIGNATURES OF ITS EMPLOYEES TO LETTERS OF RESIGNATION FROM THE UNION, AND PREPARED SUCH LETTERS . IN SUPPORT OF APPEAL C FOR GC STATES COMPLAINT HEREIN ALLEGES STRIKE CAUSED BY RESPONDENT'S UNFAIR LABOR PRACTICES, IS UNFAIR LABOR PRACTICE STRIKE . TX HELD HE IS NOT REQUIRED TO MAKE ANY SUCH DETERMINATION UNTIL STRIKERS HAVE MADE UNCONDITIONAL APPLICATION FOR RETURN TO WORK. TX SECOND REASON FOR RULING WAS FACT, CONCEDED BY GC, THAT NO REPRESENTATIVES OF RESPONDENT WERE PRESENT AFORESAID UNION MEETING. GC SUBMITS IN EVENT BOARD FINDS STRIKERS ARE ENGAGED IN ULP STRIKE , THEY ARE ENTITLED TO REINSTATEMENT UPON APPLICATION, AND SUCH RULING SHOULD BE IN THE REMEDIAL SECTION OF BOARD'S DECISION BASED UPON THE RECORD IN THIS PROCEEDING. OTHERWISE , FURTHER HEARING ON NATURE OF THE STRIKE MAY BE REQUIRED AFTER THE STRIKERS APPLY FOR REINSTATEMENT, THUS RESULTING IN UNNECESSARY COST AND DELAY. BOARD CUSTOMARILY MAKES ULP STRIKE DETERMINATIONS PRIOR TO STRIKERS ' APPLICATIONS FOR REINSTATEMENT. GC FURTHER SHOWS THAT RESPONDENT'S RESPONSIBILITY FOR UNLAWFUL CONDUCT HAS BEEN ESTABLISHED BY OTHER EVIDENCE AND ONLY PURPOSE FOR INTRODUCING TESTIMONY OF EVENTS AT THE UNION MEETING IS TO ESTABLISH CAUSAL CONNECTION BETWEEN RESPONDENT'S PREVIOUSLY ESTABLISHED UNLAWFUL CONDUCT AND THE STRIKE WHICH FOLLOWED, AND NOT TO HOLD RESPONDENT RESPONSIBLE AS ULP FOR ANYTHING STATED AT UNION MEETING . AS BOARD CUSTOMARILY REQUIRES PROOF OF CAUSAL CONNECTION , SUCH EVIDENCE 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SHOULD APPROPRIATELY BE INTRODUCED IN PRESENT HEARING. GC FURTHER SHOWS THAT TX STATED HIS REASON FOR RULING (2) ABOVE WAS GC'S ACKNOWLEDGMENT THAT THE COMPLAINT DOES NOT ALLEGE THE SPECIFIC CONDUCT BY RESPONDENT SOUGHT TO BE ESTABLISHED BY THE EXCLUDED TESTIMONY AND SAID ALLEGED CONDUCT TOOK PLACE AFTER THE STRIKE BEGAN. IN OPPOSITION TO TX AFORESAID RULING AND REASONS, GC STATES THAT COMPLAINT ALLEGES SECTION 8(A)(I) AND (3) VIOLATIONS: AND ALSO SINCE JAN. 26, 1968, RESPONDENT HAS VIOLATED SECTION 8(A)(5) BY DECLINING FURTHER RECOGNITION AND ATTEMPTING TO UNDERMINE THE UNION BY VARIOUS ACTS INCLUDING SOLICITATION OF SIGNATURES FROM EMPLOYEES FOR LETTERS AND PETITIONS TO RESPONDENT STATING SAID EMPLOYEES DID NOT WISH TO BE REPRESENTED BY THE UNION. GC SUBMITS THAT TESTIMONY TO THIS EFFECT HAS BEEN ELICITED AFTER HEARING. GC FURTHER SHOWS THAT THE STRIKE HEREIN BEGAN MAY 3, 1968, AND THE EMPLOYEE LETTERS OF RESIGNATION TO THE UNION ARE DATED ABOUT MAY 6, 1968. GC SUBMITS THAT RESPONDENT'S ALLEGED SOLICIATION OF EMPLOYEE LETTERS TO RESPONDENT DISAVOWING THE UNION IS SUFFICIENTLY CONNECTED TO SOLICITATION EMPLOYEE RESIGNATION LETTERS TO THE UNION SO AS TO PERMIT PROOF OF THE LATTER CONDUCT BY RESPONDENT WITHIN THE GENERAL PLEADINGS OF THE PRESENT COMPLAINT. ADDITIONALLY, PROOF OF RESPONDENT'S SOLICITATION OF EMPLOYEE RESIGNATIONS FROM THE UNION EVIDENCES UNION ANIMUS WHICH IS RELEVANT BACKGROUND EVIDENCE IN LIGHT OF THE PRESENT COMPLAINT ALLEGATIONS. THE FACT THAT THE LETTERS OF RESIGNATION ARE DATED ABOUT THREE DAYS AFTER THE STRIKE COMMENCED DOES NOT PRECLUDE FINDINGS THAT SOLICITATIONS THEREOF WERE MADE AT A PRIOR DATE. IN ANY EVENT, THE FACT THAT THE LETTERS ARE SO DATED DOES NOT PRECLUDE CONSIDERATION THEREOF IN LIGHT OF THE COMPLAINT ALLEGATION THAT RESPONDENT'S UNLAWFUL CONDUCT CONTINUES TO DATE. PARTIES SERVED BY WIRE. HOWARD I . GROSSMAN COUNSEL FOR THE GENERAL COUNSEL C.C. GARMENT WORKERS LOCAL 415, 2841 NW 2ND AVE., MIAMI. FLA. DAISY'S ORIGINALS, INC., 6270 NW 37TH AVE. MIAMI, FLA. APPENDIX C HOWARD GROSSMAN, NATIONAL LABOR RELATIONS BOARD 51 SOUTHWEST FIRST AVE MIAMI FLA FOLLOWING TELEGRAM SENT TO: EXECUTIVE SECRETARY NATIONAL LABOR RELATIONS BOARD. RE: DAISY'S ORIGINALS, INC. OF MIAMI , 12-CA-4217 THIS DATE RECEIVED COPY OF GENERAL COUNSEL'S REQUEST TO APPEAL TRIAL EXAMINER'S RULINGS. REQUEST 10 DAYS EXTENSION OF TIME WITHIN WHICH TO REPLY THERE TO. PARTIES SERVED COPIES HEREOF BY WIRE. BRUCKNER AND GREENE, COUNSEL FOR DAISY'S. APPENDIX D JOHN C TRUESDALE DEPUTY EXEC SECY WASH DC NLRB JAMES L JEFFERS RESIDENT OFFICER, NLRB MIAMI , FLORIDA HOWARD I GROSSMAN C/O RESIDENT OFFICER, NLRB MIAMI, FLA. JOHN F . FUNKE, NLRB TX C/O RESIDENT OFFICER, NLRB MIAMI, FLA. RE: DAISY'S ORIGINALS, INC. OF MIAMI, 12-CA-4217. GENERAL COUNSEL'S REQUEST FOR SPECIAL PERMISSION TO APPEAL FROM RULINGS OF TRIAL EXAMINER ( 1) EXCLUDING TESTIMONY OF WITNESS VIOLET REID AS TO EVENTS AT A UNION MEETING DAY BEFORE THE STRIKE BEGAN AND (2) STRIKING TESTIMONY OF WITNESS DORIS FULTON AND REFUSING TO RECEIVE ANY OTHER EVIDENCE ALLEGEDLY ESTABLISHING THAT RESPONDENT SOLICITED SIGNATURES OF ITS EMPLOYEES TO LETTERS OF RESIGNATION FROM THE UNION AND PREPARED SUCH LETTERS, IS HEREBY GRANTED. SAID APPEAL IS HEREBY GRANTED , AND THE TRIAL EXAMINER'S RULINGS ARE REVERSED . RESPONDENT'S REQUEST FOR 10 DAYS IN WHICH TO REPLY TO GENERAL COUNSEL 'S APPEAL HEREIN IS HEREBY DENIED WITHOUT PREJUDICE TO RESPONDENT'S RIGHT TO RAISE THE ISSUES OF THE APPROPRIATENESS OF TRIAL EXAMINER'S RULINGS AND THE INADMISSIBILITY OF SUCH EVIDENCE IN THE ARGUMENT AND BRIEFS TO THE TRIAL EXAMINER AND IN ANY EXCEPTIONS, WHICH MAY BE FILED TO THE TRIAL EXAMINER'S DECISION. BY DIRECTION OF THE BOARD: