Donna Lee Sportswear

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donna Lee Sportswear and International Ladies' Garment Workers' Union, AFL-CIO Donna Lee Sportswear and International Ladies' Garment Workers' Union, AFL-CIO and The Grievance Committee and Donna Lee Sportswear Employees' Independent Union, Parties in Interest Donna Lee Sportswear and International Ladies' Garment Workers' Union, AFL-CIO. Cases 4-CA-4403, 4-CA-4452, and 4-CA-4483 February 6, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On August 9, 1968, Trial Examiner David S. Davidson issued his Decision in the above proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation 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. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the allegations pertaining thereto be dismissed. Thereafter, the Respondent and Donna Lee Sportswear Employees' Independent Union, hereinafter called the Independent, as one of the Parties in Interest, filed exceptions to the Trial Examiner's Decision and supporting briefs,' the General Counsel filed cross-exceptions and a brief in answer to Respondent's exceptions and in support of its cross-exceptions, and the Charging Party filed cross-exceptions and brief in support thereof and a motion to strike the exceptions and briefs of the Respondent and Parties in Interest.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. 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, cross-exceptions, briefs, and motion, and the entire record in these cases, and hereby adopts the findings,' conclusions,' and recommendationss of the Trial Examiner, with the modifications noted below. 'Respondents have requested oral argument . Because, in our opinion, the record , the exceptions and briefs , adequately set forth the issues and the positions of the parties , this request is hereby denied 'The Charging Party's motion to strike the exceptions and briefs of the Respondent and Parties in Interest for failure to meet the requirements of the Board's Rules and Regulations, Series 8, as amended , is hereby denied as we find these documents are in substantial compliance with the Board's requirements ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Donna Lee Sportswear, York, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Modify paragraph 2(a) of the Trial Examiner's Recommended Order as follows- "(a) Offer Mary Fizer, Dorothy Goheen, and Ruby Rodefer immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss they may have suffered by reason of the discrimination against Mary Fizer, Dorothy Goheen, and Ruby Rodefer in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy," as modified by this Decision and Order." 2. Modify paragraph 2(e) of the Trial Examiner's Recommended Order as follows: "(e) Rescind its warning and discharge policy instituted in November 1967, and all warning notices issued pursuant to that policy." 3. Substitute the following for the first indented paragraph of the notice attached to the Trial, Examiner's Decision: 'The Trial Examiner found that the Grievance Committee was instrumental in bringing employees to "Respondent 's office" to give statements concerning their authorization cards The record establishes that it was the Respondent' s attorney's office The Trial Examiner found that Respondent' s recognition and continued dealing with the Grievance Committee during the 10(b) period constituted unlawful assistance to the Committee, but failed to make a formal finding that the unlawful assistance was a violation of Section 8(a)(2) We hereby correct these madvertences 'The Trial Examiner found that, when viewed in the light of the background evidence as to the formation of the Grievance Committee, Respondent' s continued recognition of the Grievance Committee during the critical period, both before and after the ILGWU demand for recognition, constituted unlawful assistance to the Grievance Committee We find that Respondent' s contemporaneous 8(a)(1) and (3) conduct, which was aimed directly at undermining the employees' support of the ILGWU, also constituted evidence of unlawful assistance and support to the Grievance Committee, and its alter ego, the Independent, and that this provides a further basis for the Trial Examiner's 8(a)(2 ) conclusions 'The Trial Examiner found that the institution of the warning and discharge policy by the Respondent violated Section 8(a)(5) and (1) of the Act and recommended as part of the remedy the reinstatement of Pat Fauth, who had been discharged pursuant to the policy We do not agree that the reinstatement of Fauth is a proper remedy for the 8(a)(5) conduct and would limit the remedy to the rescission of the warning and disciplinary policy We find merit in the General Counsel's exceptions to the Trial Examiner's recommendation that Mary Fizer should not receive backpay for the strike period Fizer was discriminatorily laid off by Respondent on September 8, 1967, and thereafter joined the strike which began September 11, 1967 In accordance with established Board policy in cases of discriminatory termination before the employee goes on strike , we find that Fizer is entitled to backpay for the entire period from her layoff on September 8, 1967, to the time of an offer of reinstatement. See Monahan Ford Corp., 157 NLRB 1034 174 NLRB No. 54 DONNA LEE SPORTSWEAR WE WILL offer Mary Fizer, Dorothy Goheen, and Ruby Rodefer immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss they may have suffered as a result of our discharge of Mary Fizer and our refusals to reinstate Dorothy Goheen and Ruby Rodefer upon their requests after the strike. 4. Substitute the following for the third indented paragraph of the notice attached to the Trial Examiner's Decision: WE WILL rescind the warning and discharge policy instituted in November 1967, and all warning notices issued pursuant to that policy. IT IS FURTHER ORDERED that the complaint be, and it hereby is dismissed insofar as it alleges unfair labor practices not found herein by the Board. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Pursuant to charges filed on September 11, 1967, in Case 4-CA-4403 by International Ladies' Garment Workers' Union, AFL-C11O, referred to hereinafter as ILG, a complaint issued on October 31, 1967, alleging that Respondent discriminatorily discharged Mary Fizer on September 8, 1967, because of her activities and support for ILG, that Respondent unlawfully refused to bargain with ILG since on or about September 7, 1967, and that Respondent's employees had engaged in an unfair labor practice strike since on or about September 11, 1967. Thereafter, on November 8, 1967, ILG filed a charge in Case 4-CA-4452, which was amended on December 26, 1967, and filed a further charge in Case 4-CA-4483 on December 13, 1967. Pursuant to these charges on February 12, 1968, an order consolidating cases and a consolidated amended complaint issued consolidating the three charges, reiterating the allegations of the original complaint, and alleging further as follows. Respondent over a period of time dominated and interfered with the formation and administration of the Grievance Committee and Donna Lee Sportswear Employees' Independent Union and contributed financial and other support to these organizations; Respondent in October and November 1967 unilaterally changed existing wage rates, piece rates, its warning and discharge policy, and other terms and conditions of employment; Respondent refused to reinstate employees Ruby Rodefer, Betty Ruby, and Dorothy Goheen after unconditional requests for reinstatement by them on October 24, 26, and November 1, 1967, respectively; and on or about December 1, 1967, Respondent discriminatorily discharged employee Patricia Fauth because of her union activities and support. The consolidated complaint charges that by these acts Respondent violated Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended. Respondent filed answers to the original complaint and the consolidated amended complaint in which it denied the commission of any unfair labor practices. A hearing was held before me in York, Pennsylvania, on February 26 and 27 and March 26 through 29, 1968. At the close of the hearing oral argument was waived, and the parties were given leave to file briefs which have been 319 received. Upon the entire record in this case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a partnership composed of Robert D. Williams, Kenneth Williams, Kathleen Williams and Celestine Williams doing business as Donna Lee Sportswear. At all times material Respondent has maintained its principal office and place of business at R. D. 9, Lower Windsor Township, York County, Pennsylvania, where it engages in the manufacture of ladies' wear as a contractor. With insignificant exception all of Respondent's work is performed for Cardinal Cotton Corporation, a manufacturer of ladies' garments with its principal office in New York and manufacturing plant at Coatesville, Pennsylvania. Respondent annually performs contracting services for Cardinal valued in excess of $100,000 a year All goods on which Respondent works are purchased by Cardinal and remain under Cardinal's ownership while being processed by Respondent. The goods are shipped by Cardinal to Respondent in Cardinal's trucks. Respondent cuts and sews materials into finished goods, which are then returned to Cardinal in Cardinal's trucks. Cardinal presses the finished garments and then ships them to its customers. Cardinal annually sells finished ladies' wear valued in excess of $50,000 in interstate commerce and makes purchases valued in excess of $50,000 from sources outside the State of Pennsylvania. Cardinal uses the services of other contractors who work on the same lots as Respondent. The goods supplied to the various contractors and the finished garments received from them are mingled together by Cardinal making it impossible for Cardinal to trace the sources of the goods which are sent to Respondent for processing or the ultimate destination of finished goods manufactured by Respondent. There is no evidence to indicate to what extent, if any, Respondent works on goods of Cardinal that have either been received from or are destined for shipment out of State. In Siemons Mailing Service, 122 NLRB 81, 85, the Board announced jurisdictional standards now followed by the Board applicable to nonretail establishments: [T]he Board has concluded that it will best effectuate the policies of the Act if jurisdiction is asserted over all nonretail enterprises which have an outflow or inflow across State lines of at least $50,000, whether such outflow or inflow be regarded as direct or indirect. For the purposes of applying this standard, direct outflow refers to goods shipped or services furnished by the employer outside the State. Indirect outflow refers to sales of goods or services to users meeting any of the Board's jurisdictional standards except the indirect outflow or indirect inflow standard. Direct inflow refers to goods or services furnished directly to the employer from outside the State in which the employer is located. Indirect inflow refers to the purchase of goods or services which originated outside the employer's State but which he purchased from a seller within the State who received such goods or services from outside the State.' 1122 NLRB at 85 (fn. omitted) 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cardinal Cottons meets both the Board's direct outflow and direct inflow standards. Respondent's sale of services to Cardinal constitutes indirect outflow in excess of $50,000 and therefore meets the Board's indirect outflow standards. Respondent contends, nonetheless, that the Board's jurisdiction has not been established because of the lack of proof that any of the materials received by it from Cardinal originated out of State or that any of the garments manufactured by the Respondent ultimately were sent out of State. The Board answered this contention in Southern Dolomite, stating: [T]he very meeting of the [outflow-inflow) standard establishes, legal jurisdiction within the meaning of Section 2(6) or (7) of the Act. In establishing this standard, the Board had already concluded in the light of its experience that when the operations of the employer meet this standard, they substantially affect commerce within the meaning of the Act. Accordingly, the Board requires no further proof of legal or statutory jurisdiction in these cases.' The Board's conclusion that the inflow-outflow standard carries with it the necessary foundation to establish the existence of legal jurisdiction is supported by the reasoning of the opinion of the Supreme Court in N.L R B. v. Reliance Fuel Oil Corporation.' Accordingly, I conclude that Respondent is engaged in commerce or in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and I find that International Ladies' Garment Workers' Union, AFL-CIO, the Grievance Committee, and Donna Lee Sportswear Employees' Independent Union are and have been at all times material labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Violations of Section 8(a)(2) 1. Background - The formation of the Grievance Committee Robert Williams and Kenneth Williams are brothers In partnership with their sister, Kathleen, and mother, Celestine, they operate Donna Lee Sportswear. Robert has extensive experience in the manufacturing of clothing and is the managing partner of Respondent. Kenneth entered the industry more recently, joining the Respondent in June 1965, with a background in accounting. He serves as plant manager for Respondent, but it appears that his duties do not extend to matters requiring technical background or experience in the industry. These duties, including the making of timestudies and the assignment of the employees to particular operations, are performed by Robert who spends substantial time at the plant in its active management 2129 NLRB 1342, 1344, fns. omitted '371 U S. 224 There the Court affirmed the Board's reliance upon indirect inflow to establish legal jurisdiction supporting assertion of jurisdiction on the basis of a gross volume of business test applicable to retail enterprises 'Robert also is president of Williams Manufacturing Corp , which has a In June 1966, more than a year before the charges in this case were filed, Robert Williams called the employees at the plant together and told them that he believed it would be a good idea if they had a grievance committee to whom they could present grievances and who would in turn present them to him 5 Kenneth Williams passed out slips of paper to the employees and Robert told them to write down the names of five girls who they thought would be good for the Committee. After the names were written by the employees, the ballots were collected by Kenneth and taken to the plant office where they were counted by Robert. The three employees who were found by Robert to have received the highest number of votes were named as committee members and a notice to that effect was posted at the timeclock 6 The three employees named were Marylyn Costabile, Dolores, Dosch, and Ruth Smith. The employees were not asked to vote on whether or not they wanted a committee The procedure for selecting the members and the size of the Committee were determined by Robert Williams. Robert Williams testified that at the time the Committee was established, he presented it to the employees as an alternative means of presenting grievances to him because he observed that some girls were afraid to come to him with grievances and instead complained to one another. Dolores Dosch and Marylyn Costabile also testified that some employees went directly to Williams with their complaints. However, the testimony of Pat Fauth and Dorothy Goheen, as well as an incident not denied by Williams,' leads me to conclude that Williams did not present the Committee to the employees in this fashion, but told them that when they had any complaints they were to go to the Grievance Committee and the Committee would go to him, in place of going to him individually with their complaints, unless a complaint was of a personal nature ' Following formation of the Committee, employees on occasion presented grievances to the Committee, and the Committee presented all grievances which they received to Robert Williams. They discussed them with Williams both privately and with the complainant present. Some of the grievances were answered with adjustments and some were rejected. On one occasion the Committee was used by Kenneth Williams to convey to employee Patricia Fauth that she should stop complaining to other girls or action would be taken by Respondent.' plant at Scottdale, Pennsylvania He divides his time between the two plants 'Where not otherwise indicated, my findings are based on credited uncontradicted testimony 'It is not clear from the testimony whether a single ballot was taken or whether a second ballot was taken in which the employees were asked to select three from among the five employees who had received the greatest number of votes on the first ballot. Resolution of this ambiguity is not material to the issues in this case. 'On one occasion employee Ruby Rodefer went directly to Robert Williams to complain about a rate which she believed was too low Williams initially told her that she should go to the Committee with the grievance unless it was something personal When she replied that she considered it personal, Williams discussed the grievance with her 'Although Kenneth Williams testified that the Committee was the employees' idea, it is clear from the testimony of Robert, as well as that of the other employees, that Robert Williams initiated the idea and carried through with the formation of the Committee 'Kenneth Williams denied that he had instructed the Committee to convey this message to Fauth, However, after initially denying that either Williams had ever given the Committee messages for employees , Marylyn Costabile in effect conceded that the incident described by Fauth occurred I have credited Fauth in this regard. DONNA LEE SPORTSWEAR In July 1967, Respondent moved its operations to a new plant. Shortly before the move in June, the Committee told Robert Williams that they believed the employees needed a wage increase . Williams told them that after the move was complete and they were settled in the new plant, he would give them one. The three committee members were given no special consideration by Respondent for their service on the Committee and no threats or promises were made to the employees to induce them to vote for the committee members or to utilize its services. Nothing was ever said by Robert Williams after the Committee was formed about the length of time the members would serve and the same three employees served on the Committee from its inception. The Committee collected no dues and conducted no meetings with employees. 2. The activities of the Grievance Committee immediately after the ILG demand a. September 7, 1967 As set forth in detail below, in late August 1967, the ILG began an organizational campaign among Respondent's employees and secured authorization cards from a number of Respondent's employees. On the morning of September 7, 1967, a delegation of ILG representatives visited Robert Williams at the plant, requested recognition, and presented authorization cards to Williams for his inspection. A group of nine employees was called to Williams' office from the plant area to be present at the time of the request. At that time, after conferring with his attorney by telephone, Williams advised the ILG representatives that they should file a petition with the NLRB and have an election if they wished to represent the employees. Based on the testimony of Ruby Rodefer, Betty Ruby, and Patricia Fauth, whom I credit for reasons set forth below, I find that at some time after the visit of the ILG representatives on September 7, the three Grievance Committee members were off the production floor for a period of time with Kenneth Williams in his office. Forelady Donna Himes was also off the floor at the time. Durnng the afternoon these employees and Dorothy Goheen also observed the Grievance Committee members walking around the plant from machine to machine talking to other girls. None of these witnesses was spoken to by the Grievance Committee members or heard what they said to others except for isolated comments. Dosch, Costabile, Himes, and Kenneth Williams denied that they met together at any time that day, and also denied that the Grievance Committee members went from machine to machine speaking to other employees during working time that afternoon. Their denials were not persuasive. In support of these denials Dosch and Costabile also denied that they had any knowledge of the ILG activities until after September 7. Dosch initially testified that she did not learn of the ILG activities until picketing started on September 11, but ultimately she conceded that before September 9 she and other Grievance Committee members spoke to employees about withdrawing their ILG authorizations and she indicated that she'did not recall exactly when they started. Costabile testified that she did not learn of the visit of the ILG representatives to the plant until the morning of September 8. Costabile conceded that she heard some discussion at breaktime and lunch on September 7 about strangers having been in the plant, but insisted that no one 321 to whom she spoke knew who they were and that she did not become aware of their identity until that evening when union representatives visited her at home and mentioned that they had been at the plant. She testified that among those she spoke to at breaktime and lunch was Letha Dietz. Yet Dietz testified that she heard about the visit of the ILG representatives on the day it occurred and expressed anger to other employees all through that day because she had understood that Robert Williams would not be shown her card. Dietz also testified that on that afternoon there was a lot of talk in the shop about what had happened that morning. The evidence is also in conflict as to the state of production in the plant that afternoon, although there is no dispute that trimmers Ruby and Rodefer were sent home early on the afternoon of September 7 because of a lack of work. Rodefer and Ruby attributed the lack of work to a failure to receive work from Costabile,'° and Rodefer testified that little work was done in the plant that afternoon because the whole shop was in a turmoil. Kenneth Williams disputed their testimony as to the source of their work and the cause of its shortage. According to Williams, there was a production snag that afternoon because they were having trouble with a particular style. Costabile testified that she worked steadily without noticing any disruption in the plant, that she never lacked work that day, and that she had no trouble with any style. Himes testified that the three Grievance Committee members worked at their machines without interruption, but that there were production problems that afternoon because everyone slowed up because of what happened that morning, affecting production and movement of goods throughout the shop. She could recall no problem with any particular style. Whatever the immediate source of the work of the trimmers," it is clear that contrary to Costabile's testimony there was disruption of production in the shop that afternoon. The vagueness of Williams' testimony and the testimony of Himes also persuades me that there was turmoil in the shop because of the ILG demand, as Rodefer testified, and that it and not trouble with a particular style was the source of the production problem. I find incredible the testimony of Dosch and Costabile as to when they became aware of the ILG activities While neither conceded knowledge of the ILG visit on September 7, both receded considerably from their initial testimony under cross-examination.' Z In the light of Costabile's concession that she spoke' to Dietz, Dietz' testimony as to the venting of her anger over what the ILG had done, Dietz' testimony that on Thursday afternoon there was a lot of talk in the shop about what had happened, and my conclusion that production problems that afternoon were caused by employee reaction to the visit of the ILG representatives, I find it inconceivable that neither Dosch nor Costabile heard anything about the ILG visit until the following day. Indeed, I have concluded from the objective evidence as well as the manner in which they testified under cross-examination and the sequence of their testimony that each sought to conceal her earlier knowledge of the '°Ruby testified that their work came from Ruth Smith as well as Costabile "In this respect Kenneth Williams testified convincingly that work did not normally flow from Ruth Smith, a zipper setter, to the trimmers but it appears that there was at most a single nonoperational step between Costabile's work and trimming "Dosch was called as a witness by counsel for the General Counsel but was examined as an adverse witness. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ILG activities and only conceded greater knowledge than she originally intended to reveal as she realized while testifying that her initial claims would not square with events more difficult to deny than a state of mind Viewing their testimony as I do, and having found substantial cause to discredit Kenneth Williams and Himes with respect to other material matters set forth below, I have credited the testimony of Rodefer, Ruby, Fauth, and Goheen as to what they observed in the plant on September 7 after the ILG demand. b. September 8, 1967 During the day on September 8, Dosch and Costabile concededly spoke to other employees about getting their cards back Both conceded that they took the initative in raising the matter with a number of the employees, but testified also that some employees came to them to state that they did not like the way the ILG organizers harassed them to sign cards or that they wanted their cards back." Costabile testified that before work started that morning a group of employees told her that they wanted to do something about getting their cards back.- According to Costabile, after these employees spoke to her, she went to Kenneth Williams and asked him a question in response to which he told her to see his lawyer.' 5 Costabile, Dosch, the Williams' brothers, and Himes denied that anyone in management asked them to talk to employees about getting their cards back One of the employees to whom the committee spoke that day was Patricia Fauth. At the afternoon break, Marylyn Costabile came to her and said that she and the other two committee members wanted to talk to her outside. Fauth went with them. Costabile asked her why she wanted a union and said that they did not need it and had the Committee for that purpose. Costabile asked her if she knew that if her machine broke down, Costabile's husband Tony, who was the plant mechanic, could let her sit all day if he wanted to. Costabile also asked her if she knew that if Robert Williams wanted to fire her, he could. Fauth replied that if he fired her, he would have to fire a lot more because 27 had signed cards which were shown Williams by the ILG representatives. Costabile replied that she did not believe that because she knew 15 who did not sign cards and that the Union had to forge cards to have that many. Fauth disputed this and Costabile told her that she had better get out of it then.' 6 "Dosch initially testified that Letha Dietz was the only employee she could recall who was really upset Later she testified Ruth May, Elsie Olewiler, and Phyllis Paules had come to her and told her that the union organizers had told her the cards would be kept confidential Finally she testified that Paules had complained only about the ILG conduct on September 11 "She identified those in the group as Ruth Smith , Dolores Dosch, Letha Dietz, Mildred Seiple, and Elsie Olewder She testified that Olewiler had said she was sorry she signed a card and wished she had not done so Of the employees named by Costabile and Dosch, only Dietz testified As indicated above, Dietz testified that on the previous day and thereafter she had expressed her anger that her card had been shown to Williams "Costabile testified initially that she merely asked him the name of his lawyer. Later she testified that she went to him with three questions relating to the Union which she could not recall , she asked one of them, and Williams replied that she should see his lawyer Costabile testified that she went to Williams after Olewiler told her that she was sorry she had signed a card and wished she had not done so "Fauth so testified Dosch conceded that the committee members spoke to Fauth and also that they told Fauth that Robert Williams had referred them to his lawyer, but did not testify otherwise as to the substance of After work that day, Costabile telephoned Respondent's attorney, Markowitz, and made an appointment to see him the following morning. That night between 10 and 10:30, Costabile telephoned Fauth at her home and asked her if she would like to get her authorization card back. Fauth replied that she could not because the Union did not have them any longer. Costabile replied that they could and that some of the girls had gone to Robert Williams and he had told them to contact his lawyer. Costabile told her that Markowitz had told her they could come into his office and sign affidavits saying that the Union had lied to them and that was why they wanted their cards back. Fauth replied that she could not do that because the Union had not lied to her. Costabile said that she had talked to Letha Dietz and Ruth May and that they were going in to the lawyer's office the next morning to sign affidavits. Costabile said she was trying to reach Lucienne Arsenault and asked Fauth if she thought Mildred Seiple would go along to ask for her card back. Fauth replied that she did not know." Costabile also telephoned Letha Dietz, Elsie Olewiler, and Ruth May and arranged to take them to Markowitz' office the following morning, having spoken to them about it at work earlier that day. c. September 9, 1967 On Saturday morning, September 9 Costabile drove Ruth May, Elsie Olewiler, and Letha Dietz to Markowitz' office The three employees told Markowitz that they wanted to revoke or cancel their authorization cards.1e Except in the case of Dietz, who testified that she sought return of her card because she believed that ILG Representative Haugh had misrepresented that the cards would be kept confidential, it is not clear what reasons were advanced by the other two employees for wanting to withdraw their authorizations." Markowitz told them that he could not represent them or take any direct action to get their cards back for them, but that he would take their conversation Costabile also conceded that on one occasion the Committee spoke to Fauth She denied threatening that her husband would let Fauth sit at her machine if she did not seek to withdraw her card, but did not testify otherwise as to the substance of her conversation. I have credited Fauth whom I have found more credible in all respects than Costabile. "Fauth who testified to this conversation had no knowledge of the basis of Costabile' s statements to her other than what Costabile told her. Costabile testified that she telephoned Fauth that evening , but was not questioned about the content of their conversation "My findings as to what happened at Markowitz ' office are based on a composite of the testimony of Marylyn Costabile, Markowitz, and Letha Dietz, unless otherwise indicated "According to Costabile, the other employees said they had had a "change of heart," and that before visiting Markowitz, Olewiler had told her she was sorry she had signed a card. Markowitz testified that Dietz and May indicated that they believed certain misrepresentations had been made to them He testified that Dietz told him that the ILG representatives had told her that a majority of the employees had signed up and that they had promised that they would keep her card strictly confidential He testified that May said that Mathews' visit to her was offensive Dietz, however, in her testimony indicated only a single basis for complaint, and Markowitz later testified after checking a statement he took from May that he was mistaken as to her complaint , without specifying further what her complaint was The statements taken from employees at this time which they signed the following Monday are not in evidence, and neither May nor Olewiler was called as a witness. As to Olewiler and May, therefore , the evidence shows at most that they indicated that they had changed their minds and does not establish the reason they advanced for the change DONNA LEE SPORTSWEAR 323 statements to present to an NLRB field agent when he investigated the case, " and they would have to take whatever steps were necessary to get their cards back from the ILG. Markowitz interviewed each of the employees, except Costabile who had not signed a card, and told them to return Monday to sign written statements. Costabile asked Markowitz if she could bring additional girls to his office on Monday and he replied that she could. According to Markowitz, he told the employees who came to his office at this time that they had a right to join a union of their choice or not to join and to take any action they desired. d. September 11, 1967 As set forth in more detail below, on Friday, September 8, one of the nine employees who had accompanied the ILG representatives when they visited Robert Williams was discharged. Thereafter, the ILG decided to call a strike of Respondent's employees. On Monday, September 11, the ILG set up a picket line at the plait. The plant opening was delayed and there was some disorder outside the plant in the attempt to prevent employees from entering. After the employees succeeded in entering the plant on September 11, work did not start immediately, and employees talked with each other about what had happened. Again that morning the Grievance Committee members spoke to other employees about going to Markowitz' office but the evidence is not uniform as to the circumstances under which this happened On the one hand, Kenneth Williams and Markowitz testified that soon after Williams entered the plant, he telephoned Markowitz to tell him what had happened. Markowitz asked Williams to try to get witnesses to come to Markowitz' office to give statements concerning the disorder outside the plant that morning. According to Williams, he asked most of the employees personally at their machines if they would go to Markowitz' office after work to give statements. He denied that he asked the Grievance Committee to contact employees for this purpose, that he counseled the Grievance Committee with respect to efforts to persuade employees to reject the ILG, that he said anything to any employee about revoking their authorization cards, or that any of the employees to whom he spoke mentioned that they already intended to go to Markowitz' office. On the other hand, other witnesses testified only to activities of the Grievance Committee resulting in visits to Markowitz' office later that day. Both Dosch and Costabile testified that some of the employees came to them and indicated that they were either unhappy with the way their cards had been solicited or wanted their cards back because of what had happened outside the plant.21 Both testified that they also went to a number of employees who had not approached them to ask them if they wanted to go to Markowitz' office. Both denied that Kenneth Williams asked them to go to Markowitz' office or said anything to them about asking other employees to see his lawyer. Among the employees to whom the Grievance Committee spoke that morning was Patricia Fauth. 'Markowitz testified that Hoffman had informed him by telephone before this that charges would be filed "Costabtle testified that Norma Henry was among those who came to her Henry testified that Costabile asked her if she wanted to join other girls who were going to Markowitz' office because they wanted their cards back Henry could not recall whether she had previously indicated that she wanted to get her card back Shortly after she entered the plant, Marylyn Costabile and Ruth Smith came to her and asked her to go to Markowitz' office to ask for her card back. They told her that it would not be necessary to say that the Union had lied to her. Fauth still declined to go and was upset and crying.22 A while later Supervisors Donna Himes and Larue Dayhoff came to Fauth and tried to comfort her and calm her down Dayhoff asked her why she did not just go along to Markowitz' office, listen to what he had to say, and if it had anything to do with saying that the Union lied, she should not sign.23 I find it incredible that two independent efforts to urge employees to go to Markowitz' office could have gone on in the plant that day without Kenneth Williams and the Grievance Committee each knowing of the efforts of the other. Although Williams professed that his memory was unclear as to the identity of those to whom he spoke, he identified Marylyn Costabile among them, and it is unlikely that having observed what had happened when she tried to enter the plant, as he testified, he would have neglected to ask her to go to Markowitz' office.24 Yet Costabile denied that Williams spoke to her about it. Williams also testified that he spoke to Norma Henry, Letha Dietz, Elsie Olewiler, and Ruth May. Three of these employees had visited Markowitz the previous Saturday and were to return that day to sign statements. I find it unlikely that, as Williams testified, none of them would have mentioned this fact when Williams spoke to them. Both Dietz and Henry, who testified, stated they went to Markowitz as a result of talking with Costabile, and neither mentioned that Williams had also asked them to go Williams, Dosch, Costabile, and Himes, all impressed me as coloring their testimony to fit preconceived notions of what their testimony should be. I have concluded that their testimony as to the events in the plant on the morning of September I I does not reveal the entire truth and contains substantial untruth to conceal the conjunction of their efforts to induce employees to visit Markowitz' office. On Monday afternoon after work, 12 or 13 employees visited Markowitz' office, including Marylyn Costabile, Letha Dietz, Ruth May, Elsie Olewiler, Norma Henry, Lucienne Arsenault, Raeann Quickel, Mildred Seiple, Anna Paules, and Phyllis Paules.YS Markowitz told the employees that he would take statements to give to the Board's field examiner when he came to investigate, that he could not represent the employees because he was Respondent's attorney, and that they had a right not to give statements. Markowitz and two of his associates interviewed the employees and took statements from "Fauth so testified Costabile conceded that she went to Fauth to ask her to go to Markowitz' office, but was not questioned as to what was said I have credited Fauth "Fauth so testified Himes denied that she tried to comfort Fauth or talked to Fauth about going to Markowitz' office or that she was present at anytime when Dayhoff spoke with Fauth. Himes also testified that she was busy bandaging herself in the ladies' room before work started that day She denied that she had any contact with the Grievance Committee with respect to persuading employees to reject the ILG, that she knew the employees were going to Markowitz' office that afternoon, or that she saw Kenneth Williams speak to any employees that day Dayhoff did not testify I have credited Fauth. "As Himes sustained an injury entering the plant, it is also likely that Williams would have asked her to give a statement and unlikely that she would not have known that employees were going to Markowitz' office "The findings as to the identity of those who visited Markowitz' office are based on the testimony of Markowitz and Marylyn Costabile. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them. In interviewing the employees, Markowitz questioned them not only about the incidents at the plant that morning but also about statements made to them at the time they signed authorization cards.26 3. Dealings between Respondent and the Grievance Committee after the ILG demand The Grievance Committee continued to meet with Robert Williams during October and thereafter and still met with him at the time of the hearing if it had a particular problem to discuss. The membership of the Grievance Committee continued unchanged.27 4 The formation of the Independent Union In October, Marylyn Costabile spoke to the other two members of the Grievance Committee about forming an independent union. She made an appointment with an attorney, Sterling, to see him on October 18, and invited the other two committee members to join her.2S On October 18, she and Dolores Dosch went to Sterling's office. They told him that a group of employees had signed cards for the ILG, had become disenchanted, and wanted to know if they could revoke their cards and form an independent union. Sterling told them that he believed there wquld be some remedy, that they could probably set up an independent union, and that he would like to meet with some of the employees involved. Accordingly they scheduled a meeting at Sterling's office for October 25, to which employees were to be invited. Costabile and Dosch asked Sterling to prepare whatever papers were necessary and he prepared a set of bylaws and authorization cards for the independent union. Sterling told them that he expected to be paid for his work and that he would charge them on an hourly basis but at less than his usual rate because they were a small group.29 According to Sterling, on October 18 neither Costabile nor Dosch said anything about Costabile's prior visits to Markowitz or the earlier efforts of employees with respect to revocation of authorization cards. On October 20, Sterling sent a letter to the ILG with copies to the NLRB, the Pennsylvania Labor Relations Board, and ILG attorney Widmer, in which he stated that he represented a majority of the employees of Respondent who informed him "that they were pressured, coerced and ''According to Markowitz, some of the employees complained about misrepresentations made to them in securing their cards , but their basic complaint was about the disturbance at the plant that morning The statements taken were not offered in evidence and the nature of their complaints, except in the case of Dietz, was not further specified. "Dolores Dosch so testified , and Robert Williams conceded that the Committee had come to him in October to remind him of an earlier promise of wage increases Marylyn Costabile testified that the Committee did not function after August 1967, but also testified that employees sometimes asked Grievance Committee members to represent them as individuals and that on very few occasions employees used the Committee to represent them . All witnesses testified that neither Robert nor Kenneth Williams ever announced that the Grievance Committee was disbanded I credit Dosch and do not credit Costabile 's testimony that the Grievance Committee ceased functioning in August ='Costabtle testified that she obtained Sterling's name from a neighbor one day while in her yard hanging up clothes "Sterling so testified He testified that as of the time of the hearing he had not sent any bill to the independent because he still did not know how much work was involved He testified that he received uo payments or promises of payment from any other source, and Markowitz and the Williams brothers testified that they had no understandings or arrangements to pay for Sterling's services and had nothing to do with his retention. by misrepresentation of facts signed cards which they did not read" authorizing ILG to represent them. The letter stated that the employees informed him that they were revoking their authorizations, but that he would not disclose their names at that time because they were fearful that other pressure might be exerted against them in order to have them sign new authorizations.31 The Grievance Committee members spread the word of the October 25 meeting to other employees and asked them to attend." From 8 to 12 employees attended the meeting. Sterling told them that there were authorization cards on his desk, that they could sign them there or take them with them and sign them outside his presence. One employee signed a card at the meeting and the others took cards with them. Sterling testified that the purpose of the meeting was to answer questions that some of the employees had relating to revocation of their ILG authorizations, whether there would be an election, and the formation of the Independent. According to Sterling, there was no discussion of the fact that some of the employees had already given statements to Markowitz with respect to revocation of their cards, and he did not recall telling the employees on October 25 how to go about revoking their authorization cards.32 None of the Grievance Committee members were present at the start of the meeting, but during the meeting, Sterling called Costabile and asked her to come to pick up the blank authorization cards which were ready. She arrived during the meeting to pick up the cards, but did not participate in the meeting and did not remain. Following the meeting in Sterling's office, the Grievance Committee and other employees solicited signatures for the Independent authorization cards.33 Some time thereafter in October or November, the Independent held a meeting at Ruth May's house at which the bylaws drafted by Sterling were adopted and officers wereelected.3a Those elected were Dolores Dosch, president; Marylyn Costabile, vice president; Grace Smith, recording secretary; and Phyllis Paules, treasurer. Ruth Smith was not elected to any office. The bylaws adopted provided that dues and initiation fees would be established later. At the time of the hearing, they had not been set. The Independent has no treasury and has paid nothing to Sterling. Insofar as the record shows, the Independent held one additional meeting after the election of its officers, but it has not sought recognition from Respondent, and Respondent has not dealt with it. Costabile and Dosch denied that 'they received any support or assistance from either Robert or Kenneth "Sterling testified that he wrote this letter on the strength of what Costabile and Dosch had told him. He did not send a copy of the letter to Respondent or Markowitz, but called Markowitz before sending the letter to learn Widmer's address and discovered at the time the pendency of a Pennsylvania Labor Relations Board proceeding. He testified that he had read newspaper articles indicating that Markowitz represented Respondent "Norma Henry testified that Dosch asked her to go to sign a card to get an independent union in the shop . Both Dosch and Costabile testified that they did not speak to employees other than the Grievance Committee members until after their October 18 visit with Sterling "After this meeting, Sterling did not write any further letter seeking return of any particular cards He expressed the belief that each employee would have to authorize revocation individually , but did not indicate whether he communicated this belief to the employees present "According to Norma Henry , she was solicited by Phyllis Paules at her machine during working hours "A written notice of the meeting, prepared by the Grievance Committee, was passed around to the girls at their machines during working hours DONNA LEE SPORTSWEAR 325 Williams in the formation of the Independent. They also denied that the Grievance Committee members have received any special privileges or favors from Respondent 35 Costabile also denied that the Independent was formed or promoted by the Grievance Committee to take over its functions. 5. Concluding findings as to Section 8(a)(2) The evidence as to the circumstances of the formation of the Grievance Committee and Respondent's dealings with it before May 8, 1967, all predates the filing of the 8(a)(2) charge by more than 6 months and therefore was received only as background evidence. As such it may be utilized "to shed light on the true character" of events occurring after May 8, 1967, but it may not be relied on to render unlawful conduct occurring after that date which would otherwise be lawful 36 Here the evidence shows that Respondent continued to deal with the Grievance Committee, stipulated to be a labor organization, during the critical period with respect to pay increases and grievances both before and after the ILG demand The Grievance Committee continued to exist during that period with no formalized structure. While the establishment of the Committee may not be attacked by the complaint, the facts as to its establishment illuminate the status of the Committee members during the critical period and show that insofar as any employee could tell, the Committee members continued to serve at the pleasure of Robert Williams, who having conducted the initial election of the Committee and established its ground rules, retained the power to conduct a new election or change the ground rules at any time. Apart from Respondent's continued dealings with the Grievance Committee with respect to grievances and pay, the evidence shows that the Grievance Committee was instrumental in bringing employees, to Respondent's office to give statements concerning their authorization cards. The facts as to what Kenneth Williams and the Grievance Committee members said to each other are left in some mystery, as their conversations occurred outside the presence of other employees and I am convinced that their testimony revealed considerably less than the whole truth. But it is clear that soon after the ILG demand for recognition on September 7, the Grievance Committee met with Kenneth Williams and that on the next day Costabile spoke with Williams and was referred by him to his lawyer. These contacts between the Committee members and Williams were accompanied by visits to the employees at their machines by the Committee and efforts of the Committee to induce other employees to take action to indicate their desire to withdraw their ILG authorizations. Whether the initiative of the Committee was stimulated by the complaint of Dietz and possibly other employees, it is clear that the Committee did not merely passively receive complaints from employees, but actively solicited employees to register their desire to withdraw their authorizations. At least in the case of Fauth the effort was aggressively pursued. The inference is strong that the efforts of the Committee in this respect grew out of the initial contact between the Committee and Kenneth Williams. Even if they were independently "Cositabile conceded that she and her husband have a social relationship with Robert Williams outside of work, but testified that she did not talk shop wu,h Williams when she socializes "Local Lodge No 1424, IAM v N.L R.B, 362 U.S. 411 pursued at first, it is clear that at the very latest Respondent entered the activities of the Grievance Committee with the referral of Costabile to Respondent's attorney by Williams. While the exact nature of that referral is not revealed by Costabile's testimony, it is clear that at that point the efforts of the Committee members became focused upon soliciting employees to visit Respondent's attorney, who in the eyes of the employees could hardly be distinguished from Respondent, to state their desire to revoke their authorization cards. From this point on any claim that the Committee's activities were independent must be rejected. That the Committee members and Respondent were pursuing a joint effort is even more clearly established by the events of September 11. While there is no direct evidence that the Committee and Kenneth Williams merged their efforts to induce employees to visit Markowitz' office, I have not credited Williams' testimony that he independently solicited employees to visit Markowitz because of the events of that morning, but conclude that Williams gave the assignment to the Committee members who in soliciting other employees to go to Markowitz' office related the purpose of the visit to withdrawal of ILG authorizations as did Supervisor Dayhoff in supporting their efforts to induce Fauth to visit Markowitz. In sum, I conclude that evidence sustains the inference that Respondent encouraged and utilized the Grievance Committee to solicit withdrawal of ILG authorizations by employees and offered the services of its attorney for this purpose .31 This activity went beyond mere passive assistance to employees who expressed a desire to withdraw their authorizations, and put the employees in the position in which they had to reveal their wishes with respect to their authorizations directly to Respondent by either visiting its attorney to state their wishes to him or declining to do so. I conclude that Respondent's conduct in this regard constituted unlawful interference with the rights of its employees in violation of Section 8(a)(1) of the Act.38 I conclude also that Respondent's recognition and continued dealing with the Grievance Committee during the critical period also constituted unlawful assistance to the Committee. Whether or not Respondent had formally recognized the Grievance Committee as the exclusive representative of its employees, it dealt in fact with the Committee as the representative of all its employees. The utilization of the Grievance Committee to induce employees to visit Markowitz' office clearly placed the Grievance Committee in the position of a favored organization. When viewed in the light of the background evidence as to the formation of the Committee, Respondent's continued recognition of the Grievance Committee during the critical period both before and after the ILG demand for recognition constituted unlawful assistance to the Committee.39 Although there is some evidence to support the allegation in the complaint that Respondent dominated the administration of the Grievance Committee, I find it unnecessary to decide whether Respondent's role in the affairs of the Grievance "Although not essential to this conclusion, this inference is strengthened by the background evidence establishing Respondent 's role in the formation of the Grievance Committee "Manila Manufacturing Company, 171 NLRB No 151, The National Cash Register Company , 167 NLRB No. 153; Big Ben Department Stores, Inc, 160 NLRB 1925, enfd. 396 F.2d 786 (C.A. 2), Heights Funeral Homes, Inc., 159 NLRB 723, 734-735 enfd. as modified 385 F 2d 879 (C.A. 5) "The National Cash Register Company, 167 NLRB No. 153 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Committee amounted to domination of its administration in view of my findings below with respect to Respondent's refusal to bargain with the ILG.40 With respect to the Donna Lee Sportswear Employees Independent Union, the evidence established that the three members of the Grievance Committee, and particularly Costabile caused its formation. Dosch and Costabile became its two top officers. There is no evidence that the Independent sought or received recognition by Respondent, but Sterling testified that at the meeting of employees at his office at which Independent authorization cards were distributed, one of the questions he discussed was whether there would be an election. Although Costabile denied that the Independent was formed by the Grievance Committee to take over its functions, it strains credulity to conclude that the Independent was formed by the Grievance Committee to function as a rival organization to the Committee. It more readily follows from the evidence that the Independent was promoted by Grievance Committee members to constitute a more formalized organization in which other employees could also participate to stand in place of the Grievance Committee in the event that the question of representation of Respondent's employees was ultimately to be resolved by an election. Here there was no disappearance of the Committee followed by later formation of the Independent. Rather the members of the Grievance Committee, at a time when I have found that Respondent continued to assist the Committee, formed the independent as an alternative organization in which two of the three members of the Committee continued to play a dominant role. In these circumstances, I conclude that the Independent was an alter ego to the Grievance Committee and inherited Respondent's unlawful assistance to the Grievance Committee in the absence, prior to formation of the Independent, of a remedy for Respondent's unlawful assistance to the Committee and assurance to the employees of freedom from further interference in their choice of a bargaining representative." Although the evidence relating to the formation and structure of the Independent raises strong suspicion that Respondent's involvement in its affairs went beyond what the testimony purports to show, there is no independent evidence to establish Respondent's role, and I find it unnecessary to consider further whether Respondent also dominated the formation of the Independent for the same reasons that I find it unnecessary above to consider further its alleged domination of the administration of the Committee. B. The Discharge of Mary Fizer On Friday, September 8, shortly before the end of the workday, Mary Fizer was called into Kenneth Williams' office and was told that she was terminated because her work was unsatisfactory and she talked excessively at work. Fizer had worked at the plant less than a month, having started work on August 14. Fizer was one of the nine employees who were called to Robert Williams' office by the ILG representatives on the morning of September 7 to be present when the Union made its recognition demand. Fizer was initially assigned by Respondent to work as a floorgirl, and shortly thereafter she was given additional "See Drives. Incorporated, 172 NLRB No 101 °Huberta Coal Co., Inc., 168 NLRB No 22; United States Railway Equipment Company , 172 NLRB No 51 duties as an assistant to Floorlady Donna Himes. Fizer denied that she had received any warnings or criticism about her work before she was discharged, but testified that on one occasion shortly after she was assigned to assist Donna Himes, she and another floorgirl, Nancy Diffenderfer, were called into Kenneth Williams' office and were complimented by him about their work. According to Fizer, after the ILG representative visited the shop, her duties were increased twice before she was fired by the addition of more operators to those for whom she was required to take out work.42 Respondent's evidence was in sharp conflict with the testimony of Fizer. In summary, Respondent's witnesses, Robert and Kenneth Williams and Donna Himes testified that Fizer initially worked well, prompting them to give her additional duties as Himes' assistant. However, almost immediately thereafter, Fizer began to neglect her duties, spending excessive time visiting and talking with other employees, and frequently leaving the production floor to visit the ladies' room. It was their version that on August 23, Donna Himes spoke to Fizer about her deficiencies and urged her to change her ways, that Fizer did not improve, that on September 1 at Himes' request Williams spoke to Fizer about her deficiencies, telling her that if they were not corrected he would not put up with them, and that when she still did not improve he decided on September 8 to discharge Fizer after first getting the approval of Respondent's attorney In support of this version, Respondent offered in evidence three interoffice memos dated August 23, September 1, and September 8, allegedly written on those dates memorializing the counseling of Fizer by Himes, the warning of Fizer by Williams, and the discharge decision. According to Respondent's witnesses, Fizer's union activities played no part in the decision to discharge her. Kenneth Williams and Donna Himes denied that they were even aware that Fizer was supporting the ILG at the time of her discharge, and Robert Williams testified that the decision to discharge Fizer was made by Kenneth and that he became aware of it and approved it only after it had occurred. I am convinced that the truth lies somewhere between the two competing versions. On the one hand Fizer's testimony as to the increase in her duties following the ILG demand is clearly inaccurate at the very least. Thus she testified that she was given two additional operators to service after the ILG demand, that she was given two more operators to service a couple of days after that, and that she was discharged a couple of days after that. As her discharge occurred the day after the ILG demand, this testimony cannot be accurate.d3 There is a strong suggestion that following her discharge Fizer's view of her employment was colored by resentment over her treatment by Respondent and that she tended to view her performance in purer terms than the facts warranted. If in fact the number of operators she serviced was increased, the increase may have accompanied her removal as an assistant to Himes, a fact as to which she was not questioned and to which Respondent's witnesses testified without contradiction. On the other hand serious discrepancies in the testimony of Respondent's witnesses persuade me that "'Dorothy Goheen testified in support of Fizer that she had no complaints about the way Fizer took out work for her and had never heard other operators complain Goheen also testified that Fizer ' s duties were increased after the ILG demand , but it is not clear that she was in a position to observe any more than that Fizer's assignment was changed "'Finer also testified, contrary to a later` stipulation, that she started to work in July and worked for 2 months before she was discharged. DONNA LEE SPORTSWEAR 327 their testimony as to Fizer's work performance and the circumstances of her discharge was even more colored by their need to defend their decision to discharge her. Robert Williams testified that Fizer started out in her employment as "a ball of fire" but then slacked off after she was made Himes' assistant. However, Himes, who initially corroborated this testimony, testified that Fizer's excessive talking and absences from the floor to smoke and primp in the ladies' room had gone on continuously from the time she started to work at the plant. Kenneth Williams testified that Himes' initial complaint on August 23 concerned not only Fizer but two other employees, Nancy Diffenderfer and Raeann Quickel, that on September 1, Himes again complained to him about the work of all three, and that he then spoke to them. The interoffice memo allegedly prepared by Himes on August 23 names Fizer and Diffenderfer, and the memo allegedly prepared by Williams on September 1 names all three. Himes initially corroborated Williams in her testimony, although she stated that she spoke to Quickel separately from Fizer and Diffenderfer and she did not mention that she made a later complaint about Quickel. However, she later testified that at the time of her talk with Diffenderfer on August 23, Diffenderfer said that she wanted to do better and that Diffenderfer improved after that. She also testified that she made no further reports about Diffenderfer but reported orally only that Diffenderfer was doing better. The conflict between Williams and Himes in this regard casts strong doubt on the authenticity of the interoffice memos offered by Respondent as contemporaneous recordings of the events they purport to record. It is inconceivable to me that Williams would have warned Diffenderfer on September 1 at Himes' request in the face of Himes' observation that she had improved after August 23 or that he would have mistakenly included Diffenderfer' s name in a memo made contemporaneously with the September 1 warning. I conclude that no credit can be given to Williams' testimony as to the time of the preparation of the September 1 memo and indeed that this conflict casts a long shadow over the testimony as to the origin of the other memos.44 The testimony of Respondent's witnesses is also in conflict concerning the events of the day Fizer was discharged Kenneth Williams testified that on September 8 he discussed Fizer's employment with Himes, made Robert Williams aware of the situation, and after checking with Respondent's lawyer, decided to terminate Fizer. Robert Williams testified that he was not consulted by Himes or Kenneth Williams before Fizer was discharged, but believed that he discussed it with Kenneth after the discharge occurred.45 Donna Himes testified that on the day of Fizer's discharge she spoke to Robert "Because the authenticity of the dates of these memos and the regularity with which such memos were made and kept by Respondent were challenged by the General Counsel and the Charging Party, I have closely examined the physical appearance of the memos That examination gives some basis to believe that contrary to the testimony of Kenneth Williams and Himes, the August 23 memo was not typed by Himes on a different typewriter from that used by Williams in typing the September 1 and 8 memos However, as I do not believe that this conclusion may be drawn without the aid of more sophisticated expert analysis and I have concluded on the basis of ample other evidence that Williams and Himes are not to be credited, I have not relied on this observation in resolving the credibility issues before me. See 7 Wigmore, Evidence Sections 2023, 2024, 2149 (3d ed.); Osborn, Questioned Documents, pp. 581-662 (2d Ed Boyd Printing Co., 1964). If I had doubt on the basis of the evidence otherwise as to the resolution of the credibility issues relating to Fizer' s discharge, I would have considered reopening the record to obtain expert testimony as to the source of these memos. Williams in his office before lunchtime. According to her, Robert Williams asked her how Fizer was doing, and she replied that Fizer was not working out and they could not use a person like that. She testified that she also spoke to Kenneth Williams either before or after lunchtime that day and told him the same thing. She testified that she recommended Fizer's discharge to Robert Williams, and not to Kenneth, and that Robert said nothing further about it until later that afternoon when he told her that he had been watching Fizer the rest of the day and decided that it was time for her to be discharged 46 Himes' testimony is thus in direct conflict with that of Robert and Kenneth Williams that Robert Williams played no direct part in the decision to discharge Fizer. To bolster their denials that Fizer's discharge was caused by her ILG activities, Kenneth Williams and Himes denied knowledge of Fizer's ILG activities. Kenneth Williams testified that he was not aware that Fizer was a member of the ILG at the time of her discharge and added that she was the last one he would have thought was for the ILG because she had visited Robert Williams at his home" and he felt that she liked her place of work. Apart from the evidence set forth below that persuades me that both Williams and Donna Himes knew the identity of the employees who left their work to join the ILG representatives on September 7 when they visited the plant, I find it incredible that Williams would have believed that Fizer was the last person who would be for the ILG, if he also believed that, as he testified, he had warned Fizer that he would not continue to put up with her work performance. Himes also testified that when she recommended Fizer's discharge, she had no idea whether Fizer was a member of the ILG. Yet when questioned about the visit of the ILG representatives on September 7, she conceded that she had heard ILG Representative Paluscio call out Fizer's name at the back of the shop and had observed Paluscio later telling Fizer that the Union was not through with them yet and not to worry because they were on union business. Their denials of knowledge can not be credited. The burden of establishing that Fizer's discharge was based on her union activities rests with the General Counsel. It is not incumbent upon Respondent to prove the contrary I am persuaded that the General Counsel has sustained his burden. Fizer was one of the nine employees who accompanied the ILG representatives to Robert Williams' office, and this fact was known to Respondents, as shown below. Her discharge followed the ILG demand by only 1 day, and it was contemporaneous with the efforts of the Grievance Committee, supported by Respondent, to attempt to persuade employees to visit Respondent's lawyer and register their desire to revoke their ILG authorizations. These facts support an inference that whatever deficiencies Fizer's work performance may have had, it was her union activities and not work which caused her discharge at this time. Far from negating that inference, Respondent's evidence in defense adds further substance to it. The unpersuasive attempts to deny "'Initially Robert Williams testified that he was not at the plant between September 7 and 14. Later he testified, however, that he believed he was at the plant on September 8, but could not remember what time of the day he was there. He also indicated uncertainty as to when he discussed Fizer's discharge with Kenneth 46Himes also testified that Robert and not Kenneth told Fizer she was discharged , but that she was not present at the time. "There is evidence that on one occasion on a date with Chris Costabile, brother-in-law of Marylyn, Fizer spent an evening with Robert Williams, Tony Costabile, and their wives 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge of Fizer's ILG activities, the conflict in the testimony as to when Fizer's work turned sour, the attempt to bolster the discharge with ex post facto memos, and the conflict in testimony as to the events of the day of Fizer's discharge all lead to the conclusion that Respondent sought to invent a story to cloak the true circumstances and cause of Fizer's discharge.41 In these circumstances, I conclude that whatever faults Fizer may have had, she would not have been discharged on September 8 but for her union activities and that her discharge violated Section 8(a)(3) of the Act." C. The Alleged Refusal to Bargain with the ILG 1. The ILG organizational efforts On or about August 28, 1967, employee Dorothy Goheen telephoned Velma Haugh, a business agent of the ILG. As a result Haugh and several other representatives of the ILG started to visit Respondent's employees at their homes and urged them to sign authorization cards for the Union From August 28 through September 6, 21 employees of Respondent signed authorization cards for the Union 50 Six of these employees signed blue authorization card forms which contained the following printed matter. International Ladies' Garment Workers' Union Affiliated with the A .F.L.-C.I.O. AUTHORIZATION CARD I, of my own free will, hereby authorize the INTERNATIONAL LADIES' GARMENT WORKERS' UNION, its affiliates and its representatives, to act exclusively as my agent and representative for the purpose of collective bargaining. Print Name Address (Street and Number) City State Employed by Employer's Address Signature Date STRICTLY CONFIDENTIAL "The testimony of Respondent's attorney that Kenneth Williams spoke to him by telephone before the discharge and secured his approval of the decision does not overcome the serious deficiencies in Respondent's evidence Among other things, Markowitz testified that Williams told him that Fizer was insubordinate to Himes, was not doing her job, and was talking and walking around the plant instead of working The only independent evidence of insubordination by Fizer concerns Fizer's remarks to Himes after Fizer's discharge It appears likely that Markowitz, whose testimony shows other failures of recollection , was mistaken and that his conversation with Williams came after Fizer's discharge and not before. "Ulbrtch Stainless Steels, Inc. 164 NLRB 130, enfd. 393 F.2d 871 (C.A. 2) See also N L R B v Dee's of New Jersey, Inc, 395 F 2d 112, fn 4 (C.A. 3) "Six additional persons signed cards who at one time , and possibly at the time of signing , were employees of Respondent However, it was stipulated that they were not on Respondent's payroll at the time the Union requested recognition on September 7 The remaining employees signed yellow cards which were identical to the blue card except that the words "STRICTLY CONFIDENTIAL" do not appear on them In the course of their visits to employees to solicit signatures, the ILG representatives discussed union organization with employees and sought to persuade them to give ILG their support The union representatives testified generally, with some variation, that they explained wage, vacation, and holiday benefits under union contracts without promising specifically that they would obtain these benefits from Respondent if ILG became the representative of Respondent's employees. They also explained certain health and welfare benefits offered by the Union directly to its members, including a union-operated pharmacy and a program for obtaining eyeglasses ILG Organizer Mathews testified that in describing union contract benefits he did not tell the employees that he could not guarantee that ILG could obtain for Respondent's employees what it had secured at other shops, and the testimony of Norma Henry indicates that she understood Mathews as telling her that the Union would obtain similar benefits for Respondent's employees." ILG Representative Haugh discussed what would be done with cards with two employees, Letha Dietz and Ruth May Haugh testified that this discussion occurred when these employees, whom she visited separately, asked her if there would be an election. According to Haugh, she replied that if the ILG obtained cards from more than 50 percent of the girls, there would be a card check, and she explained that a card check meant that some impartial person would go over the cards. Haugh denied that she told Dietz that the cards would not be shown to Williams or would be kept confidential Dietz testified that she asked Haugh several times if Robert Williams would see her card, and that Haugh told her that the only way that he would see the card was that if he did not believe that the employees had signed them and that they would have a minister or an attorney check the cards. May did not testify. The testimony of Haugh and Dietz is not in conflict although each places her emphasis on different portions of Haugh's remarks. Even from Dietz' testimony it appears that Haugh did not say that Williams would never see the cards, but sought to reassure her that before Williams would see them an impartial person would see them first and that the only reason Williams would see her card would be that he wanted to inspect the handwriting or signature. The ILG representatives also concededly made statements to employees concerning the number of employees who had signed cards. Mathews testified that he did not recall exactly what he said to the individual employees but that he might have made statements to them indicating that just about everyone the organizers had thus far seen had signed cards and that at the rate they were going, they would soon have a majority. Haugh testified similarly that she told employees Ruth May and "Mathews obtained cards from five employees who were in the bargaining unit on September 7 They were Marie Smith, Rachel Ruby, Roberta Little, Phyllis Paules, and Anna Paules Mathews' testimony indicates that he had no clear recollection of what he told any individual employee, but that he told all of them about the same things He visited Henry, but she did not sign a card until a later visit by Representatives Haugh and Hoffman None of the employees who signed cards at Mathews' request were called as witnesses DONNA LEE SPORTSWEAR 329 Raeann Quickel that all but two of those she had seen had signed cards. Neither May nor Quickel testified. However, Norma Henry testified that when Mathews visited her,52 he said simply that a majority of the girls had signed cards without specifying whether his reference was to the girls in the shop or the girls he had seen Ruby Rodefer testified that she was visited once by Haugh on August 28 when she told Haugh she wanted to wait and see how other employees felt about the Union. She was visited on August 31 by Russo and Paluscio. She testified that at that time one of them said something to her about a majority having signed cards, but that she had decided to sign a card before they came and had independently concluded that the ILG had majority support from talk she had heard among the employees in the shop.53 Haugh also testified that she told one employee, Betty Ruby that there would be no initiation fee for those who came in the Union as a group at the time the shop was organized, but that anyone who joined later would be required to pay an initiation fee. 2 The ILG demand for recognition On the night of Wednesday, September 6, the ILG representatives held a meeting for Donna Lee employees. Nine employees attended. At this meeting the ILG representatives discussed with the employees the policy to follow in the campaign and decided that the next morning at the employees' breaktime they would visit Robert Williams to request recognition on the basis of the authorization cards they had received from a majority of the girls in the shop. They asked the nine employees present to join them in Williams' office at the time they made the demand for recognition. The next morning, September 7, at approximately 9:30, ILG District Manager Hoffman, Director of Organization Phil Russo, Business Agent Velma Haugh, Organizer Thomas Mathews, and Organizer Jane Paluscio entered the front door of the plant.54 The door opens into a hallway running toward the rear of the plant. At one side of the hall are three offices running along the hall toward the rear of the plant. Closest to the entrance is Robert Williams' office. The office used by Kathleen Williams, who serves as the plant secretary, is next, and Kenneth Williams' office is last. Across the hall from the offices is the plant cafeteria. At the end of the hall at the rear of the building is the production area. The rear wall of Kenneth Williams' office is adjacent to the production area and has a window through which he can look into the production area. Upon entering the plant, the ILG representatives encountered Kenneth Williams in the hallway. Hoffman asked to speak with Robert Williams. Kenneth asked Hoffman to wait there a few minutes and went to find Robert. Mathews, Haugh, and Paluscio went to the production area at the rear of the plant where they called out the names of the enployees who had agreed to join them in Williams' office. The morning break period had not yet started but these employees left their machines "As indicated Henry did not sign a card on that occasion The date of Mathews' visit to Henry was not established, but necessarily occurred before September 1 when she signed a card. "Russo was not questioned about this , and Paluscio did not testify ''Except where indicated below, my findings as to what happened during the visit of the ILG representatives to the plant are based on a synthesis of the testimony of Hoffman, Haugh, Mathews, Robert Williams, Kenneth Williams, and Donna Himes, who were in basic agreement as to the sequence of events, although not as to all significant details and went toward the front of the plant. They were Mary Fizer, Dorothy Goheen, Betty Ruby, Patricia Fauth, Lucienne Arsenault, Norma Henry, Mildred Seiple, Betty Cook, and Sharon Fizer. Robert Williams came from the back of the plant to where Hoffman and the ILG representatives were waiting. Hoffman introduced himself, and Williams invited them to enter his office. The ILG representatives entered the office along with Robert and Kenneth Williams. Hoffman told Robert Williams he had a committee and wanted them present while they talked. Williams consented, and at least some of the employees who had left their machines entered the office.55 Hoffman told Williams that the ILG had signed up a majority of his employees and asked Williams to sit down and negotiate a contract with him.56 Robert Williams indicated surprise at Hoffman's claim of a majority At that point Kenneth Williams left Robert's office and went to his own office to place a call to Respondent's attorney, Markowitz. Hoffman proceeded to count out on Robert Williams' desk 27 authorization cards that he had been holding in his hand. Williams went through the cards57 and laid three aside stating that the employees who had signed them had quit a couple of days before.58 Hoffman asked Williams if there was still a majority, and Williams replied that there was.59 Hoffman asked Williams how many employees he had, and he replied that there were less than 40. At this time Kenneth returned to Robert's office and told Robert there was a telephone call for him. Robert went to Kenneth's office to take the call while the union representatives waited in Robert's office with Kenneth. Williams told Markowitz that the ILG representatives had come to the plant and wanted him to sign a contract. Markowitz advised Williams to tell the ILG "There is a conflict in the evidence, discussed below, as to how many employees entered the office "Hoffman and Haugh testified that Hoffman asked Williams to negotiate a contract. Robert and Kenneth Williams testified that Hoffman said they were there to sign a contract For reasons set forth below in the conclusions, I find it unnecessary to resolve this conflict. "According to Williams, Hoffman asked him if he would like to see the cards and Williams said that he would Hoffman testified that Williams also counted the cards However, his testimony in this regard was not supported by Russo or Haugh and was denied by Williams I find that Williams did not count the cards but looked through them "Williams testified that it was his recollection that all the cards which Hoffman showed him were blue, unlike most of those identified at the hearing Hoffman testified that he showed Williams the cards which he identified at the hearing. If Williams were correct, then the ILG either had duplicate cards from most of the employees or obtained new cards from most of those who had signed after the demand for recognition Although there is evidence that one or two employees signed a second card before the demand for recognition, there is no evidence to indicate that a majority of the signers signed a second card at any time If the ILG had sought to replace the blue cards with yellow cards after the demand because of the difference in the printed matter on them , it is unlikely that it would not have obtained yellows cards from Dorothy Goheen and Betty Ruby, two of its earliest and most persistent supporters, while obtaining them from employees who gave statements to Respondent 's attorney a few days after the ILG demand . One would also expect that if replacement cards were obtained from those who visited Respondent's office, Respondent would have been able to produce direct evidence of the fact that their yellow cards were solicited as replacements for blue cards signed before the demand. In these circumstances, and as Williams frequently pleaded an uncertain memory and was less than definite in his responses , I do not credit Williams "Hoffman and Haugh both so testified Williams conceded that at one point Hoffman asked him if he doubted that the Union had a majority and that he replied that he did not doubt it if Hoffman said so. At one point he testified that this occurred before Kenneth Williams returned to the office, but he also testified that it occurred after Kenneth 's return 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives to file a petition for an election.60 Robert Williams returned to his office and told Hoffman that the ILG should petition for an election. Hoffman asked why they should petition, reminding him that he had seen that the Union had cards from a majority of the girls. Robert replied that he had just talked to his lawyer who had said that was what Williams should say. Hoffman asked who Respondent's lawyer was and Williams told him." Robert Williams testified that Hoffman again asked him if he doubted that the Union had a majority and that Williams replied "If you say so, Sol."" At that point the ILG representatives started to leave Robert Williams' office. As they were leaving, in the presence of the employees who had come up to Williams, Hoffman reminded Williams and ILG representatives assured the employees that it was unlawful for Respondent to discriminate against or intimidate any employee who wanted the Union. Hoffman also told Williams that whether or not he dealt with a union manufacturer the employees had a right to join a union and that the ILG represented the employees of many contractors in the area who worked for nonunion manufacturers. 63 The ILG representatives then told the employees to return to work, and they left the plant. As indicated above, there is a conflict in the evidence as to the number of employees who entered Robert Williams' office with the ILG committee. Resolution of this conflict is significant only insofar as it bears upon Respondent's knowledge of the identity of the employees who came to "Williams testified that he did not remember telling Markowitz that Hoffman had cards with him or that the cards were mentioned by either of them. He was not certain whether he mentioned that the Union claimed to represent a majority . Markowitz testified that Williams told him that Hoffman had shown some cards to Williams but that Williams was unfamiliar with the signatures on the cards and could not recognize them and did not know what it was all about. If Williams had discussed the cards and his inability to recognize their genuineness with Markowitz, I find it unlikely that he would not have given this as a reason for wanting an election after his conversation with Markowitz, particularly in the light of his lame explanation at the hearing for not taking issue with Hoffman's majority claim. Markowitz spoke to Williams later in the day at Markowitz' office, and Markowitz testified that at that time when Williams told him what had happened that morning , he asked Williams whether he could recognize the signatures or was familiar with the cards I conclude that Markowitz confused the afternoon visit with the morning telephone call, and credit Williams' version of the telephone call over Markowitz', "According to Williams, at this point Hoffman said that the Union had a majority and that if Respondent did not sign a contract , he would pull the employees out on strike . He testified that Hoffman also said that he would not be able to work and that ILG would not let trucks come to the plant Kenneth Williams also testified that Hoffman said "we will strike" or something like that and Robert said nothing. As set forth below, I am persuaded that the strike which started on September I I was caused by the discharge of Mary Fizer and not the refusal to bargain Moreover, Hoffman testified that he told Williams that he knew Markowitz from other dealings and might be able to contact him Hoffman later called Markowitz to see if recognition could be arranged In view of these facts and my findings as to the credibility of both Williams', I do not credit their testimony that Hoffman threatened a strike while in Williams' office "Williams testified that this exchange occurred after he had spoken to Markowitz He explained that he was not going to stand there and argue because Hoffman had most of his people in the hall and he needed production . According to Williams, the break period had ended at this point Williams also testified most illogically that he did not recognize the signatures of his employees, could not tell whether they were genuine, and for that reason did not question their genuineness at any time that morning. "These statements appear to have been made with reference to reports Hoffman heard of a speech by Robert Williams to the employees Williams' office with the ILG committee. I find it unnecessary to decide how many of the employees actually entered Williams' office, as I find it clear from the testimony of Respondent's witnesses that Respondent learned the identity of those who joined the ILG representatives. Thus, although Robert Williams testified that he could only recall two employees who were in his office, he also testified that when he left his office with Hoffman at the end of the visit, he saw from 7 to 10 employees in the hallway whom he recognized at the time but could not identify at the time of the hearing. Kenneth Williams testified that while he was in Robert Williams' office no employees were in the office but that he saw employees in the hallway. He testified that when the ILG representatives left the office there were some employees in the hallway, of whom he noticed only three. He also testified that when he went to and from his own office in connection with the telephone call to Markowitz, he walked through the middle office and did not go into the hall. Supervisor Donna Himes testified that when the ILG representatives first entered the plant, ILG Representative Paluscio went to the production area and called off the names of employees to come to the office. Himes testified that she saw several of the employees come forward, and that she remembered several of the names that were called including Mary Fizer's but not Patricia Fauth's. Himes also testified that during the entire time the ILG representatives were in Robert Williams' office, she was seated in the adjacent office with the connecting door opened a crack. She testified that during that time she did not see Robert or Kenneth Williams. She also testified that at the end of the break period she saw Jane Paluscio stop some employees in the hall, including Mary Fizer and Dorothy Goheen, to tell them that the Union was not through with them yet and not to worry because they were on union business. She testified that she did not see any other employees because she was too confused and upset From this testimony it is clear that Respondent knew at the time which employees had come forward to join the ILG representatives. Hoffman had asked to have a committee present and Williams' had consented. Assuming that the employees could not all fit into the office, Williams must have known that the employees standing outside the door of his office were there for the same reason as those inside. Himes had heard the names of the employees called off by Paluscio, had seen some of them come forward, and saw some of them in the hall talking to Paluscio The conflict between the testimony of Kenneth Williams and Donna Himes indicates that one or the other of them was not truthful in his efforts to put himself in a place where he could not see the employees while the ILG representatives were in Robert Williams' office. Either Himes did not remain in the middle office during the period of time she said she was there, or when Robert and Kenneth Williams went to the telephone in Kenneth's office, they both passed through the hall where the employees, if any, who had not entered the office were standing. I am convinced that among them, the Williams brothers and Himes had ample opportunity to identify the employees who came to Robert Williams' office in support of the ILG and knew who they were. 3. Conclusions as to the ILG majority I find, as alleged in the complaint, that all production and maintenance employees of Respondent, employed at its York, Pennsylvania, plant, excluding office clerical employees and supervisors as defined in the Act, DONNA LEE SPORTSWEAR 331 constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act 64 The parties stipulated as to the composition of the bargaining unit on September 7, the date of the ILG demand. Pursuant to their stipulation I find that there were 31 employees in the bargaining unit of whom 21 had signed authorization cards for the ILG. Their cards were among the 27 cards presented to Robert Williams by Hoffman on September 7.65 As noted above , six of the cards were printed on blue stock and bore the printed words "STRICTLY CONFIDENTIAL" at the bottom . These cards were signed by Dorothy Goheen, Betty Ruby, Letha Dietz, Ruth May, Mildred Sieple , and Raeann Quickel. Two of these employees, Dietz and May, also discussed with ILG Representative Haugh what would be done with the cards at the time they signed them Of these employees , there is evidence that only Letha Dietz sought to obtain the return of her card from ILG representatives following the ILG demand Although there is evidence, as set forth above, that Ruth May, Letha Dietz, Mildred Seiple , and Raeann Quickel visited Markowitz' office and gave him statements concerning the solicitation of their cards, none of these employees went further , despite Markowitz' advice, to make an independent effort to revoke their authorizations or obtain return of their cards . The record does not establish that any of them , other than Dietz, complained about a breach of confidentiality." A representation by a solicitor that a card will be kept confidential differs from a representation that a card will be used only to obtain an election or for some purpose other than that stated on its face . A representation as to confidentiality does not detract from the purpose of the card as an authorization or provide any basis for concluding that the signer did not intend to authorize the Union to represent him. The assurance of confidentiality goes to allaying fears of retaliation rather than misrepresentation of the purpose or effect of the card.67 Accordingly , I conclude that the printed matter on the blue cards , which does not appear to have been discussed by four of the six employees who signed them, does not detract from the effectiveness of these cards as valid authorizations despite the fact that ,the cards were shown to Robert Williams.68 1 find further that in the case of Ruth May, the uncontradicted testimony of Velma Haugh as to what she "Respondent amended its answer at the hearing to concede that the allegation of the complaint as to the appropriate unit would be correct if Respondent were engaged in interstate commerce , but to deny the allegation because Respondent was not engaged in interstate commerce. "The remaining six cards were those referred to in fn 50, supra. "As indicated in section A, above , none of these employees , other than Dietz, appeared as witnesses and their statements were not offered in evidence Dosch's testimony as to complaints made to her in the plant was on its face unreliable Markowitz did not testify that May complained on September 9 that a promise to keep her card confidential had been breached , and after initially testifying that she complained that Mathews' visit to her was offensive , corrected his testimony only to the extent of saying that he was mistaken The complaints of Quickel and Seiple at Markowitz' office were not identified, except to the extent that Markowitz testified that some of the 12 or 13 employees who visited him on September it, complained about misrepresentations made to them in securing their cards , but their basic complaint was about the disturbance at the plant that morning. Seiple was among the group that met with the ILG represent atives the night before the ILG demand and accompanied the ILG representatives to Robert Williams' office. "See Manila Manufacturing Company, 1-71 NLRB No 151. "M. Koppel Company, 166 NLRB No. 114. told May adds nothing to what the printed matter indicated and that her card may also be counted Indeed Haugh's explanation that the card could be used to obtain recognition on the basis of a card check reenforced the printed authorization on the card. The card of Letha Dietz raises a closer question. It appears from Dietz' testimony that she sought explicit assurance that her card would not be shown to Williams Although Haugh indicated certain conditions under which the card might be shown to Williams, they were not the conditions under which the disclosure occurred. Dietz promptly voiced her displeasure over the disclosure and queried union representatives about the return of her card. Although the above analysis relating to the five other blue cards would indicate similar disposition of this card, I find it unnecessary to decide whether Dietz' card should be counted because, as I find below, the ILG had a clear majority without her card. The evidence as to statements made by ILG representatives to employees otherwise relates to the benefits discussed by organizers with employees, initiation fees, and the number of employees who had signed cards. The statements concerning union benefits were typical of union organizing campaigns. Even if ILG Organizer Mathews indicated to Norma Henry that the ILG would get Respondent's employees similar benefits, as she understood him to say, these statements did not amount to flat promises of automatic increases once the ILG secured recognition.69 Similarly there was no unlawful inducement in Haugh's statement to Betty Ruby that those who joined the ILG at the time of the organization of the shop would not be required to pay an initiation fee.70 The various statements made to employees as to the number who had previously signed cards do not, insofar as the record shows, appear to have been misrepresentations. It appears from the testimony of the ILG representatives, as well as from the authorization cards received in evidence, that most of the employees the representatives visited signed cards and that it was true that at the rate they were going, the ILG would soon have a majority. While the date of Mathews' visit to Henry is not established, it appears that it was likely to have occurred on either August 30 or 31, when Mathews visited a number of other employees. By the end of the evening on August 30, the ILG representative had obtained 13 cards, including some from persons not on the payroll on September 7, and by the end of the evening on August 31, they had obtained a total of 22 cards of which 17 were signed by employees who were on the September 7 payroll. Although it is doubtful that Mathews had reasonable cause to believe that a majority had already signed cards on August 30, it appears that he not only had cause to believe that at some point during the evening of August 31 but that it was most likely true.71 Thus, I conclude that neither Henry, who did not sign her card until September 1, Rodefer, who signed on August 31, nor any other employee was induced to sign her card on the basis of a misrepresentation as to the majority status of the ILG. In any event such a misrepresentation would not "R W Inc , d/b/a K-Mart Foods, 170 NLRB No 67; Better Val-U Stores of Mansfield. Inc, 161 NLRB 762, 769-771 As noted above, no employee other than Henry testified to Mathews ' statements in this regard. "Fabricators, Incorporated, 168 NLRB No. 21. "As the exact dates of payroll changes do not appear in the record, it cannot be said with certainty that the ILG had cards from a majority by the close of August 31 But as it appears that there were nine employees whose status was in doubt, five of whom had signed cards, it is likely that the ILG had a majority at that time. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD invalidate their authorizations.72 Accordingly, I conclude that at the time of the ILG demand for recognition, the ILG had valid authorizations from at least 20 of the 31 employees in the appropriate unit and was the majority representative of the employees in the unit. 4. The refusal to bargain As noted above, the evidence is in conflict as to whether the ILG representatives asked Williams to negotiate a contract or to sign a contract. I find it immaterial which was said. There is no single formula which must be followed in requesting recognition, and it is clear that in presenting Williams with the cards signed by the employees Hoffman sought to establish the status of the ILG as representative of Respondent's employees for the purpose of being recognized and entering into a collective-bargaining agreement with Respondent.73 Although Williams inspected the cards and orally acquiesced to the ILG majority claim, after speaking with his lawyer, Williams told the ILG representatives to file a petition and seek an election if it wished to represent his employees, thus effectively declining to grant the recognition sought by Hoffman. In Aaron Brothers Company of California, 158 NLRB 1077, the Board stated: While an employer's right to an election is not absolute, it has long been established Board policy that an employer may refuse to bargain and insist upon such an election as proof of a union's majority unless its refusal and insistence were not made with a good-faith doubt of the union's majority. An election by secret ballot is normally a more satisfactory means of determining employees' wishes, although authorization cards signed by a majority may also evidence their desires. Absent an affirmative showing of bad faith, an employer, presented with a majority card showing and a bargaining request, will not be held to have violated his bargaining obligation under the law simply because he refuses to rely upon cards, rather than an election, as the method for determining the union's majority." The burden rests upon the General Counsel to establish bad faith, not upon the Respondent to establish its good faith. "Where a company has engaged in substantial unfair labor practices calculated to dissipate union support, the Board, with the courts' approval has concluded that employer insistence on an election was not motivated by a good-faith doubt of the union's majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the union."75 Here there is evidence that almost immediately after the ILG demand, the efforts of the Grievance Committee to induce employees to visit Respondent's attorney to state their desire to revoke their authorization cards began. I have found above that the Grievance Committee's efforts in this regard were not independent but were assisted and encouraged by Respondent in violation of the Act. These efforts were aimed directly at undermining the employees' support of the ILG through "G & A Truck Line, Inc., 168 NLRB No. 106. "Steel City Transport, Inc v. N.L.R B, 389 F 2d 735 (C.A 3). There is no evidence to suggest that Hoffman sought to compel Respondent to sign a set of specific contract terms without change or negotiation . Compare Roadhome Construction Corp, 170 NLRB No 91. 7"158 NLRB at 1078 (fns. omitted). "Aaron Brothers Company of California, supra, 158 NLRB at 1079. unlawful means. Also, contemporaneously, Respondent discharged Mary Fizer in violation of Section 8(a)(3) of the Act, as I have found, for discriminatory reasons further evidencing a desire to undermine the ILG. This evidence overrides any contrary inference that might be drawn from Letha Dietz' complaint about the showing of her card to Robert Williams and the less specific testimony that other employees on their own initiative complained about the way their cards were solicited or indicated that they had a change of heart. Had Respondent not engaged in contemporaneous unfair labor practices and merely rested on its stated desire to have the ILG put its claim to proof by means of an election, a different question would be presented.76 But in the light of the fact that the expressions of revocation of support for the ILG, only one of which was communicated to the ILG, were stimulated by Respondent's unlawful activity, I conclude that any doubt Respondent entertained as to the ILG majority stemmed from its own unfair labor practices 77 Accordingly, I conclude that since September 7, 1967, Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith with the ILG as collective- bargaining representative of the employees in the unit set forth above .78 D. The Replacement of Goheen, Rodefer, and Ruby On Friday evening, September 8, ILG Representative Russo learned of Fizer's discharge. The following morning he telephoned Robert Williams and asked Williams if he would take Fizer back. Williams declined to reinstate Fizer. Later that day the union representatives decided to put a picket line in front of the plant and to ask the employees to honor it. On Sunday afternoon and evening Russo and Mathews visited some, but not all, of Respondent's employees at their homes and explained to them their decision to call a strike at Respondent's plant.79 No general meeting of employees was held before the decision was made or the picketing started Russo testified that the discharge of Mary Fizer was not, the sole reason for the decision to strike, but that the decision was also motivated by the fear that other employees would be discharged and - after a pause in his testimony - the fact that Williams had refused to bargain. Dorothy Goheen testified that she was told by Mathews on Sunday, September 10, that Respondent had fired Mary Fizer, that it was an unfair labor practice, and that they were going to strike.80 "In this connection , I find it unnecessary to pass upon the General Counsel's alternative theory that Williams' conduct at the time of the ILG demand established that Respondent had no good-faith doubt of the ILG's representative status at the time of the demand and sought an election without a valid ground in violation of Section 8(a)(5), citing Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C A. 9); Jem Mfg, Inc., 156 NLRB 643. - "Manila Manufacturing Company , 171 NLRB No 151 , The National Cash Register Company, 167 NLRB No 153. "In reaching this conclusion, I do not rely on evidence of a speech by Robert Williams to the employees at the start of the ILG campaign Although some of Williams' remarks indicated that the advent of a union would decrease employee work opportunities , he also at that time assured the employees of their right to join a union , as Rodefer's testimony clearly indicates . To the extent that Williams' testimony as to this speech was in conflict with that of Patricia Fauth , Dorothy Goheen, and Ruby Rodefer, I credit the latter witnesses whose testimony was similar in content . Williams equivocated extensively and confessed difficulty in remembering what he said at this time I specifically discredit his equivocal denial of awareness of union activity at the time of the speech "Russo so testified. "Goheen also testified that she joined the picket line for that reason and DONNA LEE SPORTSWEAR 333 On Monday, September It, before the start of work, a number of ILG representatives appeared outside the plant along with union members from other shops and some of Respondent's employees 81 At the outset that morning, there was no well-defined picket line. However, some of the ILG representatives had blocked the road leading to Respondent's plant so that employees were required to park their cars away from the plant and walk the rest of the way. The opening of the plant was delayed by the late arrival of Tony Costabile who had the keys to the plant door. For a period of time a number of people milled about including those who wanted to go to work and the union representatives and supporters. Letha Dietz was pushed by two women and fell as `she tried to walk toward the plant." When Tony Costabile arrived with the key and started to open the plant door, more pushing and scuffling ensued.83 Tony Costabile was prevented from opening the front door of the plant but succeeded in opening a' side door through which he and the others who wished to work were able to enter.84 After the employees entered the plant, a picket line was drawn along the edge of Respondent's premises, and there is no evidence of further disorder." The picketing of Respondent's plant continued after September 11. Dorothy Goheen joined the picket line from the outset. A replacement was hired to perform her job within a week after the picketing started. Ruby Rodefer crossed the picket line and worked on September 11. She worked again on September 13. On September 14, she decided to honor the picket line and stayed at home. On that day Robert Williams called her at home and asked her why she had not come to work. She told him that she had decided to honor the picket line. According to Williams, he told her at this time that he had to get his work out and that he would possibly have to replace her. A day or two later Williams hired a replacement for Rodefer. On October 2, she joined the picket line, having merely honored it until then. Betty Ruby worked on September 11 but did not report to work on September 12 because of illness. That morning Kenneth Williams called her to ask if she was coming to did not believe there would have been a picket line if Fizer had not been discharged "Among the employees who joined the picket line, Russo identified Mary and Sharon Fizer, the Cooks, Dorothy Goheen, and others whom he did not know . Russo estimated that from 9 to 11 employees honored the picket line , but there is no evidence that any employees other than those he named did so. "Dietz so testified . Kenneth Williams also testified that he was pushed by an ILG organizer as he walked toward the plant. "Although Russo attributed the start of the disorder to Tony Costabile, who he testified shoved him, and Marylyn Costabile, who he said charged into the pickets, it is clear that the disorder was attributable to ILG representatives and supporters who sought to bar employees from entering the plant. I credit the explicit testimony to this effect of Marylyn Costabile, Kenneth Williams, and Donna Himes Without condoning their conduct, 11 do not find, however, that there was misconduct by ILG representatives sufficient to warrant dismissal of the allegations of violation of Section 8(a)(5) in the complaint United Mineral & Chemical Corporation, 155 NLRB 1390 "Donna Himes testified that as she went through the door, two ILG organizers tried to slam it, catching her foot in the door and injuring it. "Respondent hired a constable and a detective agency to protect its property and instituted a civil court injunction proceeding on September 11 No injunction issued , but the return date of an order to show cause was continued indefinitely on September 18, on condition that upon the filing of affidavits by Respondent alleging further misconduct a preliminary injunction would issue forthwith. work. She told him that she was sick and was going to see her doctor. Kenneth asked her if she wanted a leave of absence. She said that she wanted to find out first what was the matter with her.86 She visited her doctor who told her that she was suffering from high blood pressure and grippe and that she should stay out of work until her blood pressure was down. On September 13, she called Robert Williams and told him what her visit to the doctor had disclosed. She said she would be out of work for some time, but did not know how long. Williams told her that he would not be able to wait for her and pressed her for some indication of the probable length of her absence, which she said she could not give. Williams said that he would have to get someone to replace her and that she should call him when she was feeling better.87 He hired a replacement for her shortly thereafter. About 2 weeks later Patricia Fauth told Ruby that she had been replaced. Based on that information, she decided to join the picket line on October 2, and she remained on it until it was removed. Ruby did not call Williams again after September 13 to tell him she was ready to return to work until after the picket line was removed.88 The picket line was maintained until around October 20, when Russo and Hoffman decided to end the picketing. At that time Dorothy Goheen, Betty Ruby, and Ruby Rodefer were the only employees still honoring the picket line, the others who picketed having found other employment.89 On October 24, Ruby Rodefer telephoned Robert Williams and asked about returning to work. Williams told her that she had been replaced and that he would call her if he needed anyone later. On October 26, Betty Ruby called Robert Williams and asked how she stood with her job. He told her that she had been replaced and that he did not have work for her at that time, but might have work later. On October 31 and November 1, Dorothy Goheen telephoned the plant several times and asked to speak to Robert Williams but was unable to reach him. On one of these occasions she spoke to Kenneth Williams. She told Kenneth that she was calling because she wanted her job back. Kenneth said that he knew nothing about it and that she would have to talk to Robert. Kenneth told her to leave her number and that he would ask Robert to call her, but Robert never called back. Then, on advice of the ILG representatives, she sent a telegram to the Respondent asking to be reinstated. She received no response to the telegram. At the time of the hearing, Goheen, Rodefer, and Ruby had not been reinstated, and their replacements were still working. Although there is some evidence that the picketing was caused by Respondent's refusal to bargain as well as the discharge of Fizer, I conclude that it would not have occurred but for Fizer's discharge. Russo's mention of the refusal to bargain in this regard appeared to be an "Ruby so testified without contradiction "The testimony of Ruby and Williams as to this conversation is essentially the 'same Ruby did not testify that Williams said it would be necessary to replace her, but did not deny that he said it ""Ruby testified that she would have been ready to return to work at the time she joined the picket line. "'ILG strike assistance records indicate that in addition to these three employees, Betty Cook, James Cook, Carol Cook, and Mary Fizer were the only other employees who received assistance during the penod of the picketing 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afterthought. Goheen did not mention it as a cause of the strike, and Hoffman appeared to have some hope of being able to persuade Markowitz that Respondent should recognize the ILG after his visit to Robert Williams' office. It is, of course, possible that once Fizer was discharged, both the discharge and the refusal to bargain became causes of the picketing, but I find that the evidence is sufficient to establish only that the discharge was its cause. As several of Respondent's employees joined in and participated in the picketing over Fizer's discharge, which I have found was an unfair labor practice, I find that these employees were engaged from the outset in an unfair labor practice strike. Dorothy Goheen and Ruby Rodefer were both replaced at a time when they had joined the strike. As unfair labor practice strikers, they were entitled to reinstatement to their former jobs by Respondent upon request, regardless of their replacement, unless their conduct during the strike disqualified them for reinstatement. Although Respondent argued at the hearing that it would show misconduct of replaced strikers in seeking admission of evidence relating to strike misconduct, no such showing was made. Rodefer requested, and was denied reinstatement on October 24. Goheen tried to reach Robert Williams to request reinstatement on October 31 and November 1. On one of those 2 days, she conveyed the purpose of her call to Kenneth Williams, who said he would have Robert call her back. I find that at least by November 1, Goheen had requested reinstatement and that it was effectively denied her when Williams failed to respond to her call or her telegram. Betty Ruby stands in a different position. Unlike Rodefer, who had notified Robert Williams before she was replaced that she was honoring the picket line, Ruby stayed out of work until October 2 because of illness and so notified Williams. When she reported to Robert Williams on September 13, she was unable to state how long she would be out, and Williams told her he might not be able to wait for her return. A replacement was hired shortly thereafter, and the fact that she was replaced was at least one of the reasons that she decided to join the strike. Thus Ruby was replaced before she became a striker. In order to conclude that Ruby is entitled to reinstatement it would be necessary to conclude that the decision to replace her was motivated by her union activities rather than by economic reasons. It is true that Ruby was one of those who left her work on September 7 to join the ILG representatives at Robert Williams' office. However, Patricia Fauth, who was also one of the group who went to Williams' office, also was out of work for medical reasons during the strike and was not replaced. Perhaps more evidence explaining the difference in their treatment as well as evidence relating to Respondent's sick leave policies would support the conclusion that Ruby's replacement was discriminatory, but I conclude that the evidence before me is insufficient to support that conclusion, particularly in the light of Ruby's inability to predict on September 13 when she would be ready to return to work. Accordingly, I conclude that Respondent's refusal to reinstate Ruby Rodefer on October 24 and Dorothy Goheen on November 1, upon their respective requests, violated Section 8(a)(3) of the Act. However, I do not find that Respondent's refusal to reinstate Betty Ruby similarly violated the Act. E. Unilateral Changes in Wages and Conditions of Employment and the Discharge of Fauth 1. The unilateral changes Most of Respondent's employees are paid on an incentive basis. The employees keep records of what they produce, and at the end of each week their earnings are computed by applying the appropriate piece rates to what they have produced. Respondent also keeps track of the hours worked by each employee and maintains minimum hourly rates Each employee's minimum weekly pay is computed by multiplying the number of hours worked by the employee's minimum rate. If an employee's minimum exceeds his incentive earnings for the week, he is paid the minimum and the difference 'is known as makeup. If an employee's incentive earnings exceed his minimum, he is paid the incentive earnings and the difference is known as a bonus. In June, some time before the move to the new plant, the Grievance Committee asked Robert Williams about a wage increase. Williams told them that after they got settled in the new plant he would give one. Sometime in October, the Grievance Committee reminded Williams of his promise. Williams then increased the minimum hourly rate for the employees and also increased the amounts paid per piece for purposes of computing incentive earnings by about 5 percent. The increases were effective sometime in October.90 At some time not made clear in the record Respondent also changed the terms in which its piece rates were stated.91 This change merely restated piece rates in terms of price paid per hundred garments rather than price paid per dozen garments . It did not affect earnings received by employees but simply made it easier for them to calculate their earnings. In early November Robert Williams held a meeting with the employees in the plant cafeteria. He told them that he was paying out too much makeup pay and that it had to stop, even if it meant that he had to get rid of the old employees and hire all new help. He told the employees that he was going to hand out warning slips to those whose makeup was excessive and that if an employee received three slips she should not bother coming back to work because there would be no job for her. Williams did not single out Patricia Fauth or any other operator for individual criticism at that time. He told all the employees that it would be company policy to discharge upon three warnings if an improvement was not shown in makeup. Both Robert and Kenneth Williams testified that they decided to institute the warning and discharge policy because they were having too much makeup and had to do something to reduce it. 2. The discharge of Fauth Patricia Fauth started to work for Respondent in March 1966. She was hired as a zipper setter, having previously worked in that capacity for another employer. From the start of her employment Fauth's pay rarely, if ever, exceeded her minimum rate and she usually received makeup pay. At some point relatively early in her "Only Robert Williams testified as to the increases and their surrounding circumstances "Robert Williams testified at one point that this change occurred in November and at another that it happened in August Marylyn Costabile placed it in October or November. DONNA LEE SPORTSWEAR 335 employment, Fauth was taken off zipper setting and assigned a variety of tasks generally classified as parts operations.92 When Fauth first started to work for Respondent her minimum rate was $1.25 an hour. After 3 weeks, her minimum was raised to $1.30 an hour. After another month it was raised to $1.35 and later it was raised to $1.40. When Respondent moved to its new plant in July 1967, her minimum was raised to $1.50. At the time, Kenneth Williams told her that she was doing better. In October 1967, her minimum was again raised to $1.60. From the start Fauth rarely, if ever, produced enough over a weekly period to earn piecework earnings in excess of her minimum rate, and she received makeup pay most of the time. According to Fauth, the reason for her constant failure to exceed the minimum was that she was moved around from one job to another several times a day and sometimes had to sit and wait for work. According to her, much of the time also she worked without the assistance of a floorgirl and as a result lost time taking work out of her machine, thereby increasing the time spent on each job. Shortly after Respondent moved to the new plant Fauth asked Floorlady Donna Himes if she could have an hourly paid job as a floorgirl because she was not exceeding the minimum as an operator and she felt she could not make any less working as a floorgirl. Himes told her that she could not have a floor job because she was needed on a machine.93 On November 10, 1967, a few days after Robert Williams announced the warning slip policy, the employees received their paychecks for the pay period ending the previous Saturday. With her paycheck, Kenneth Williams gave Patricia Fauth a warning slip which showed that her total pay for the week was $66, of which she earned $34.93 at piecework and the balance, $31.07, was makeup.94 At the bottom of the slip was printed "Comment: Must show improvement." When she received this slip, Fauth told Williams that he might just as well give her the other two slips because she could not make the minimum and was going to get them anyway. She also told him that she could not eliminate her makeup pay because they were assigning her too many different jobs. Williams told her not to get worked up and worried and that the slip did not mean she was fired but only that she had l o show improvement.93 Fauth also failed to make her minimum for the week ending November 11, but she did not receive a second warning slip on November 17 with her paycheck for that week.9' However, on November 24, 1967, having again failed to make her minimum for the week ending November 17, she received a second warning slip. That slip indiLcated that her total pay was $66, including attendance bonus, of which she had earned $38.69 and had "Fauth testified that she overlocked sleeves, fronts , backs, and facings, set tags and bindings , joined shoulders, and seamed up for zippers Robert Williams testified that Fauth's regular jobs apart from zipper setting were seaming fronts, overlocking, and working on small parts He testified that these jobs required only simple straight sewing and were all considered in the general category of parts operations. "Although several floorgirls were hired after the ILG demand, Fauth was not offered a chance to work as a floorgirl at any time However, it does not appear that she ever renewed her request for a transfer "Included in her total earnings was a $2 attendance bonus for having worked the full week This amount was apparently included in the amount indicated as makeup It is not established whether or not this amount was added to the bonus of those who exceeded their minimum "Fauth to testified without contradiction. makeup of $27.31. It stated "Must show considerable improvement." On December 1, 1967, she received a third slip which indicated total pay of $51.20 for the week ending November 25, of which she had earned $34.89 and had makeup of $16.31." It stated "This is your third slip which means automatic discharge." Other employees received one warning notice and some received two. Fauth, however, was the only employee who received a third notice and was discharged pursuant to the policy up to the time of the hearing. Although there are differences in detail in the testimony as to Fauth's work record before November 1967 and the reasons why Respondent stopped assigning her to zipper setting,"' there is no dispute that whatever Fauth was assigned to, she failed as a rule to exceed minimum earnings. However, until the warning slip system was instituted in November 1967, Fauth had never previously been warned about her work or told how much makeup she was paid, although she knew she was receiving makeup pay.99 For the first 4 weeks after the warning and discharge policy was instituted, Respondent kept summary sheets showing the earnings of each employee and the amount of makeup or bonus she received.' Thereafter, Respondent stopped keeping such summaries and kept summaries which showed bonuses earned but not makeup pay.' Kenneth Williams testified that the warning system was still in effect, but that he had not given out any slips in the month or two before he testified. He could not recall when he had last given out a warning slip, and conceded that he had not given out any slips since the end of 1967, but he testified that he had given out warnings after Fauth was discharged.3 However, both Robert and Kenneth Williams testified that the warning system was successful and substantially reduced makeup, eliminating the need for further warnings.' "Kenneth Williams testified that he gave no slips at the end of the second week because he wanted to give all the employees a chance to improve. "As Fauth missed 1 day of work during that pay period , she did not receive an attendance bonus and was paid only for the hours she worked. "According to Fauth, she was told that it was because there were two other zipper setters with more seniority . According to Robert Williams, it was because she did not make the production rate on all but one style, she was often absent, and he could get more production out of utility girls at zipper setting. He testified that he told Fauth that the latter was the reason she was not being given zippers. "Fauth so testified Kenneth Williams testified that even before Respondent moved he had discussed Fauth's makeup with her and had tried to help her out and give her every break that he could Robert Williams testified that he had noticed on a number of occasions that Fauth left her work for periods of 20 minutes during working time and that he called it to Humes' attention twice. According to him, Himes reported back that Fauth's nerves were bad and she was in the restroom crying. Himes testified that she could tell from observation that Fautb was on makeup but never checked to see if Fauth was making her time , Both Robert Williams and Himes testified that it was their observation that Fauth's attitude was that she did not care whether she exceeded her minimum. However, none of Respondent's witnesses testified that Fauth had been warned that her work must improve if she wanted to retain her job 'Fauth's third notice and discharge were based on her performance for the last of these 4 weeks 'Kenneth Williams testified that he jotted down lists of those receiving excessive makeup on a scratch pad each week when he prepared the payroll but did not have them . In an attempt to explain their loss he testified that when the plant moved, he lost a lot of them and could not find others. The move occurred , of course, before the warning system was instituted. 'Williams was vague as to the identity of employees other than Fauth who received warning slips, particularly after Fauth 's discharge. 'Makeup figures in the records for the first 4 weeks after the policy was 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Concluding findings I have found above that denials of knowledge of Fauth's participation in the group of employees who visited Robert Williams' office by both Williams and Himes were not convincing, and I am no more persuaded by Robert Williams' equivocal testimony as to his recollection and knowledge of her ILG activities at the time of her discharge.' As the General Counsel has pointed out, by the time of Fauth's discharge, of those employees who went to Williams' office on September 7, all but Fauth either had quit, had been discharged, had been replaced, or had visited Markowitz' office to give a statement. The-General Counsel contends that the warning and discharge policy was adopted as a means of eliminating Fauth, the last of this group, from the plant, relying on the evidence of other unfair labor practices in this case and the evidence surrounding the adoption and implementation of the warning and discharge policy. There are factors which support this contention. Thus summaries of makeup paid employees were only kept for a 4-week period following institution of the warning policy and were not kept after Fauth's discharge. The evidence is at best vague as to the implementation of the policy after Fauth's discharge. Fauth's performance had been poor for an extended period of time before the warning and discharge policy was instituted. Her minimum rate had been increased several times during that period, thereby increasing the production required of her to avoid makeup pay,6 but she had never previously been given a warning to improve her production or face discharge. Fauth's production in fact improved during the week on which her third notice was based.' While her makeup remained substantial , it would appear that the first two warnings had brought about improvement which it was the purpose of the warnings to induce. Some of the explanations given by Fauth for her poor makeup were not rebutted.' Respondent's evidence as to the principal reason advanced by Fauth for her excessive makeup was in conflict. Although Kenneth Williams and Donna Himes testified that Fauth was not moved from job to job,' Robert Williams testified that after Fauth was taken off zipper setting he could not assign her to a steady job because she was frequently absent. Also lending support to the General Counsel's contention are discrepancies in the testimony of Kenneth Williams, Robert Williams, and Himes as to the implementation of the system. Although Kenneth instituted show a substantial reduction in total makeup pay over that period. 'According to Respondent's Attorney Markowitz, he and Robert Williams were aware of Fauth's union activities at the time of her discharge. 'Fauth's October increase in her minimum rate amounted close to 7 percent Piece rates were increased by 5 percent at that time. Thus if Fauth's production had remained constant thereafter, her makeup pay would have been increased 'The makeup indicated on Fauth's first warning constituted approximately 45 percent of her total pay The makeup indicated on her second warning constituted 40 percent of her total pay The makeup indicated on her final warning constituted approximately 32 percent of her total pay. In computing these percentages I have excluded Fauth's attendance bonus from both her makeup and her total pay for purposes of computation. 'These were her claims that she was sometimes left to sit without work and that she worked much of the time without a floorgirl There is no evidence, however, to indicate whether Fauth was unique in these respects. 'Kenneth Williams testified that only utility girls were moved from job to job Williams administered the system, his testimony establishes that he was not well qualified to make the subjective determinations as to what was excessive makeup which the system required. Williams testified that he relied on Himes for advice before issuing warning slips, but she testified that she was not consulted as to all the warnings. As to Fauth, Williams testified that he consulted Himes before issuing the final warning for the week in which Fauth had shown improvement, but Himes testified that she was consulted only as to Fauth's first warning., Both Robert and Kenneth Williams testified that among the factors they looked at in determining whether makeup was excessive was whether an employee was working at her regular job. Yet their testimony also indicates that when an employee other than a utility girl was assigned to work which was not considered a part of her regular job, she was paid on a straight-time basis. Thus, an assignment outside of an employee's regular job would not increase her makeup, unless she was a utility girl who was expected to perform all jobs. On the other hand, these are a number of factors which indicate that the warning system was instituted for a legitimate purpose. The evidence is uncontradicted that there was considerable makeup pay before Respondent instituted the warning and discharge policy and that makeup in the plant declined after it was instituted. It appears likely that whatever the problem before the October wage increases , the economic need to increase production became greater after Respondent's total payroll increased The warning system was announced to all employees, and Fauth was not singled out for criticism. While Respondent's makeup summaries indicate that some employees continued to have high makeup, practically all of those employees whose makeup continued high were identified as trainees or utility girls whose special consideration with respect to makeup was satisfactorily explained, and even when compared to these employees, Fauth's record was close to the worst When Fauth spoke with Kenneth Williams at the time she received her first slip, Williams tried to assure her that she needed only to show improvement. It was Fauth and not Williams who suggested that any effort by her to improve would be futile and that he might as well proceed to issue the remaining warnings Although 'Robert Williams, contrary to Donna Himes and his brother Kenneth, supported Fauth's testimony that she was moved from job to job a great deal, he testified without contradiction that all of her jobs were considered to fall in a single classification and required only straight sewing. Fauth, who like Betty Ruby was absent for medical reasons for 3 weeks during the strike, was not replaced at that critical juncture when it might have been expected that Respondent would have used the opportunity if so motivated to remove her from the plant. It is true that at the time of her discharge, in addition to her earlier ILG activities, Fauth had refrained from joining in the activity in behalf of the newly formed Independent. However, by that time the ILG strike had failed, and it appears that Respondent's earlier unfair labor practices, as well as the strike, had effectively dissipated the ILG support in the plant. I find sufficient doubt as to the motivation for instituting the warning and discharge policy and Fauth's discharge to conclude that the General Counsel has not established that the institution of the policy and Fauth's discharge were caused by her union activities. DONNA LEE SPORTSWEAR The question remains, however, as to whether the unilateral wage increase and the institution of the warning and discharge policy violated Section 8(a)(5) and (1) of the Act. There is no question that the warning system had not previously existed and was unilaterally instituted in early November by Respondent. As it had direct effect on job tenure and on the amount of work employees were expected to perform, the warning system was a matter falling within the scope of "wages, hours, and other terms and conditions of employment" and was an appropriate matter for collective bargaining." Before it was instituted, insofar as the record shows, the job tenure of employees was not threatened by a failure to reduce or eliminate their makeup. The new policy changed these conditions. Coming soon after a unilateral wage increase, it may be inferred that the threat to employee tenure and the increase in Respondent's production demands was associated with the increase in Respondent's payroll. Absent representation of its employees by a union, both the increase in wages and the institution of the warning system were management decisions which Respondent was free to make. Indeed, even in the face of union representation and bargaining, these were decisions that Respondent would have been free to make unilaterally if requisite bargaining had occurred but failed to result in agreement. However, Respondent did not recognize the ILG and took both actions without bargaining with it. In these circumstances both the granting of the wage increases and the institution of the warning system constituted unilateral changes in wages, hours, and other terms and conditions of employment in derogation of the ILG's representative status and in violation of Section 8(a)(5) of the Act." As the institution and implementation of the warning system resulted in the receipt of warning notices by a number of employees and the discharge of Fauth, in order to remedly the violation of Section 8(a)(5), I shall recommend below that Respondent rescind the warning and discharge policy, all warning notices issued pursuant to it, and the discharge of Patricia Fauth. However the benefits which accrued to the employees as a result of the October wage increases are not to be rescinded or changed by virtue of anything contained in this Decision or Recommended Order. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent violated Section 8( a)(1), (2), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative "Russell-Newman Manufacturing Company, Inc., 167 NLRB No 156; Dixie Ohio Express Company, 167 NLRB No. 72; Miller Brewing Company, 166 NLRB No. 90. "N.L R B v. Katz, 369 U S. 736; Farmers Co-Operative Gin Association, 161 NLRB 887, 899-900, enfd. 389 F 2d 553 (C.A.D.C ). See also cases cited in fn 10 directly above. 337 action designed to effectuate the policies of the Act. As I have found that Respondent discriminatorily discharged Mary Fizer, discharged Patricia Fauth pursuant to an unlawfully instituted warning system, and refused to reinstate unfair labor practice strikers Dorothy Goheen and Ruby Rodefer, I shall recommend that Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earnings they may have suffered by payment to them of sums of money equal to the amount each normally would have earned as wages from the dates of the respective discharges of Fizer and Fauth and the requests for reinstatement of Goheen and Rodefer to the dates of offers of reinstatement, less net earnings, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.12 Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Donna Lee Sportswear, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, the Grievance Committee, and Donna Lee Sportswear Employees' Independent Union are labor organizations within the meaning of the Act. 3. All production and maintenance employees employed at Respondent's York, Pennsylvania, plant, excluding office clerical employees and supervisors as defined in the Act constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9{b) of the Act. 4. At all times since September 7, 1967, International Ladies' Garment Workers' Union, AFL-CIO has been and now is the exclusive representative of the employees in the unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By soliciting employees to state their desire to withdraw from the International Ladies' Garment Workers' Union, AFL-CIO, rendering assistance to the Grievance Committee and its alter ego, Donna Lee Sportswear Employees' Independent Union, discharging Mary Fizer because of her union activities, refusing to reinstate unfair labor practice strikers Dorothy Goheen and Ruby Rodefer upon their request, refusing to bargain upon request with International Ladies' Garment Workers' Union, AFL-CIO in the appropriate unit set forth in paragraph 3, above, and by unilaterally increasing employees' wages and instituting and implementing a warning and discharge policy following the request for recognition of International Ladies' Garment Workers' Union, AFL-CIO, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (2), (3), and (5) and Section 2(6) and (7) of the Act. "In the case of Fizer the period during which she joined the strike will be excluded from the period for which she is eligible for backpay. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby recommend that Respondent, Donna Lee Sportswear, its partners, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing the Grievance Committee or Donna Lee Sportswear Employees' Independent Union as the bargaining representative of any of its employees for the purpose of dealing with Respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until either of these labor organizations shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among Respondent's employees. (b) Rendering assistance to the Grievance Committee or Donna Lee Sportswear Employees' Independent Union in the administration and conduct of their affairs. (c) Soliciting employees to state their desire to withdraw from a union. (d) Discouraging membership in International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, by discriminating in regard to the hire and tenure of employees or any term or condition of their employment. (e) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other conditions of employment with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described in paragraph 3 of the section of the Decision entitled "Conclusions of Law." (f) Unilaterally changing rates of pay and other terms and conditions of employment without notice to and bargaining with International Ladies' Garment Workers' Union, AFL-CIO. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Mary Fizer, Patricia Fauth, Dorothy Goheen, and Ruby Rodefer immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss they may have suffered by reason of the discrimination against Mary Fizer, Dorothy Goheen, and Ruby Rodefer and by reason of the operation of Respondent's unilaterally adopted warning and discharge policy against Patricia Fauth in the manner set forth in the section of the above Decision entitled "The Remedy." (b) Notify the above-named employees 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 and Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. (c) 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 relevant and necessary to a determination of compliance with paragraphs (a) and (b) above. (d) Upon request , bargain collectively with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of all employees in the appropriate unit and embody in a signed agreement any understanding reached. (e) Rescind its warning and discharge policy instituted in November 1967, and rescind all warnings and disciplinary actions taken pursuant to said policy. (f) Withhold all recognition from the Grievance Committee and Donna Lee Sportswear Employees' Independent Union as the representative of the employees for the purpose of dealing with either organization concerning wages , rates of pay , hours of employment, or other terms and conditions of employment, unless and until such labor organization shall be certified by the Board as the exclusive bargaining representative of such employees (g) Post at its York, Pennsylvania, place of business, copies of the attached notice marked "Appendix "" Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by the Respondent' s representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 4, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer Mary Fizer, Patricia Fauth, Dorothy Goheen, and Ruby Rodefer reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and -other rights and privileges, and WE WILL make them whole for any loss they may have suffered as a result of ourdischarges of DONNA LEE SPORTSWEAR Mary Fizer and Patricia Fauth and our refusals to reinstate Dorothy Goheen and Ruby Rodefer upon their requests after the strike WE WILL, upon request , bargain collectively with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment and, if an understanding is reached , embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees employed at our Pennsylvania, plant, excluding office clerical employees and supervisors as defined in the Act. WE WILL rescind the warning and discharge policy instituted in November 1967, and WE WILL rescind all warning notices and disciplinary actions taken pursuant to that pollicy. WE WILL withhold all recognition from the Grievance Committee and Donna Lee Sportswear Employees' Independent Union as the representative of our employees for the purpose of dealing with either organization concerning wages, rates of pay, hours of employment , or other terms and conditions of employment, unless and until such labor organization shall be certified by the Board as the exclusive bargaining representative of such employees. WE WILL NOT discourage membership in International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization by discriminatorily discharging or refusing to reinstate any of our employees. WE WILL NOT refuse to bargain collectively with International Ladies' Garment Workers' Union, AFL-CIO ., as the exclusive bargaining representative of all the employees in the bargaining unit described above. WE WILL NOT unilaterally change wages , hours, or other terms and conditions of employment without notice to or bargaining with International Ladies' Garment Workers' Union, AFL-CIO. WE WILL NOT recognize the Grievance Committee or Donna Lee Sportswear Employees' Independent Union as the bargaining representative of any of our employees for the purpose of dealing with either 339 organization concerning grievances , labor disputes, wages, rates of pay, hours of employment , or other conditions of employment , unless and until either of these organizations shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL NOT render assistance to the Grievance Committee or Donna Lee Sportswear Employees' Independent Union in the administration and conduct of their affairs. WE WILL NOT solicit our employees to state their desire to withdraw from a union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. Dated By DONNA LEE SPORTSWEAR (Employer) (Representative ) (Title) Note- We will notify the above-named employees 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. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board' s Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania 19107, Telephone 597-7601.