Gem Knits, Inc.

GEM KNITS, INC. Gem (Knits, Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Cases 3-CA-3461 and 3-CA-3512 February 12, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On September 13; 1968, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. , Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Gem Knits, Inc., Hudson, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below: 1. Add the following as paragraph 2(c), and reletter the following paragraphs accordingly: "(c) Notify the above-named employee if presently serving in the Armed Forces of the United States, of her 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." 2. Add the following as the last indented paragraph of the notice: WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States of her 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. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 449 RICHARD D. TAPLrrz, Trial Examiner: Upon a charge filed by the Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, in Case 3-CA-3461 on March 18, 1968, an amended charge filed in that case on May 22, 1968, and a charge filed by the Union in Case 3-CA-3512 on May 22, 1968, an order consolidating cases, complaint and notice of hearing dated June 7, 1968, was issued alleging that Gem Knits, Inc., herein called Respondent, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Respondent by its answer denied that it violated the Act. A hearing was held in Albany, New York on July 30, 31, and August 1, 1968. Thereafter, briefs were filed on behalf of the Union, the General Counsel and the Respondent which have been carefully considered. Upon the entire record in the case' and from my observation of the witnesses and their demeanor, I make the following: , FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent, a New York corporation, maintains an office and place of business at 513 Columbia Street in the City of Hudson, New York, herein called the plant, where it is engaged in the manufacture, sale and distribution of cloth garments and related products. During the past 12 months, Respondent performed services valued in excess of $50,000 for other enterprises located in the State of New York, each of which other enterprises annually purchases and receives goods valued in excess of $50,000, (from directly outside the State of New York and each of which other enterprises annually sells and ships goods valued in excess of $50,000,) directly to customers in states other than the State of New York. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged 8(a)(5) The complaint alleges and the answer admits that after a secret ballot election in Gem Knits, Inc., 3-RC-4295, conducted under the supervision of the Regional Director for the Third Region of the Board, the Regional Director 'The record discloses a great number of errors in transcription. However, in the absence of a motion to correct the record and based on my opinion that the errors are either self-correcting because of their context or that they occur with regard to matters which are not necessary for the resolution of the issues in this case , no action is taken with regard to the transcript 174 NLRB No. 69 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on or about January 16, 1968, certified the Union as the exclusive collective-bargaining representative of the employees in an appropriate unit,2 that on or about February 27, 1968, the Union requested Respondent to bargain collectively, and that, at all times material herein, Respondent has refused to bargain collectively with the Union Respondent defends its refusal to bargain on the ground that the certification is invalid 1. Background After a hearing in Gem Knits, Inc., 3-RC-4295 on October 20, 1967, and a decision and direction of election dated November 7, 1967, an election was conducted on December 7, 1967, in which out of 63 valid votes 35 were cast for the Union, 27 were cast against the Union and 1 was challenged. On December 12, 1967, Respondent filed objections to conduct affecting the results of the election alleging in substance that the Union intimidated and threatened employees and engaged in election propaganda that contained substantial misrepresentations. One misrepresentation alleged was that all union members received certain benefits. After investigation, a supplemental decision and certification of representative issued dated January 16, 1968, in which the Regional Director for the Third Region of the Board overruled the objections, finding that they did not raise substantial or material issues with respect to the conduct and results of the election. The Union was thereupon certified. On January 31, 1968, Respondent requested a further investigation and moved for reconsideration. By telegram dated February 5, 1968, the Regional Director denied the request and motion on the ground that the Respondent had raised no new issues or matters not previously considered. On February 5, 1968, Respondent filed a request for review of the Regional Director's supplemental decision and certification of representative and moved for stay of certification. With regard to Respondent's allegation that the Union misled the employees into believing that all members of the Union received certain benefits, the Respondent stated in its request for,review at footnote 5: . the Employer filed a Request for Further Investigation and Motion for Reconsideration with the Regional Director. With this pleading, the Employer submitted two Amalgamated Clothing Workers Contracts, which were different, in varying degrees, from the conditions in Exhibits 1, 2, and `A.' The Regional Director was also advised that, to the knowledge of the Employer, Manhattan Shirt Company and Gant Shirt Company, both of Hudson, New York, had contracts with the Union and that the wage rates in these contracts (as well as the wage rates in the two contracts furnished) differed materially from the rates set out in the Union literature. . . All else aside, we believe that this newly discovered evidence warrants further investigation and reconsideration favorable to the Employer. On February 26, 1968, the Board denied Respondent's request for review on the ground that it did not raise substantial issues warranting review by the Board. The Respondent contends that the certification is invalid because, pursuant to the Excelsior rule,' it was "The unit is "All production and maintenance employees including plant clerical employees employed by Respondent at its plant excluding all office clerical employees and guards, professional employees and supervisors as defined in the Act " required to furnish the Union with a list containing the names and addresses of employees who were eligible to vote in the election, and further that the certification was invalid for the reasons set forth in its objections and because a hearing was not granted on its objection. 2. Analysis of 8(a)(5) allegation Respondent's first contention may be summarily disposed of. The requirement that an employer furnish the Union with the names and addresses of employees in election cases is set forth in Excelsior Underwear Inc., supra. That case established the current Board law on the subject4 and I have no authority to review it or to change it. Morganton Full Fashioned Company and Huffman Full Fashioned Hosiery Mills, Inc., 115 NLRB 1267, enfd. 241 F.2d 913; Esquire, Inc., 109 NLRB 530, enfd. 222 F.2d 253 (C.A. 7). It is noted that Respondent did not raise this contention in its objections to the election. In any event, even if the Excelsior rule were to be set aside, it would by no means follow that the certification in this case would be invalid. As to Respondent's contention that the certification is invalid for the reasons set forth in its objections and because of the lack of a hearing on its objections, the Board law is clearly set forth in LTV Electrosystems, Inc, 166 NLRB No. 81, enfd 388 F.2d 683 (C.A. 4), in which the Board adopted the Trial Examiner's decision which stated: It has been seen that the Union was certified by the Regional Director as the lawful bargaining representative in the appropriate bargaining unit; this certification was in effect affirmed by the Board when it refused the Respondent's request for review thereof. It is therefore clear that the Respondent seeks to litigate in this unfair labor practice proceeding issues which have been finally decided by the Board in the representation proceeding This the Respondent may not do before the Trial Examiner. It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation in a complaint case of issues which were or could have been litigated in a prior related representation proceeding.' This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised.' And that there are not such issues has been effectively decided by the Board. 'Excelsior Underwear Inc, 156 NLRB 1236. Three courts of appeals have found the Excelsior rule to be valid. See N.L.R B. v. Hanes Hosiery Division - Hanes Corporation, 384 F.2d 188 (C A. 4), cert. denied 390 U.S 950; Howell Refining Co v N.L R.B, 400 F.2d 213 (C A. 5); N L.R.B v Rohlen, 385 F.2d 52 (C.A 7). Contra see Wyman-Gordon Co v. N.L R B., 397 F 2d 394 (C.A. 1) In the Wyman-Gordon case a petition for certiorari to the U S . Supreme Court has been filed by the Board. 'Pittsburg Plate Glass Company v N.L.R B ., 313 U.S. 146, 162, Collins & Aikman Corp., 160 NLRB No . 135 And see Rules and Regulations, National Labor Relations Board, Series 8, as revised January 1, 1965, Sec. 102 67(f). Denial of a request for review [of a decision by a Regional Director in a representation case] shall constitute an affirmance of the Regional Director's action which shall also preclude relitigatmg any such issues in any related subsequent unfair labor practice proceeding. See also 102 69(c) 'O.K. Van and Storage, Inc, 127 NLRB 1537, E-Z Davies Chevrolet, 161 NLRB No. 121. And see Air Control Window Products, Inc, 335 GEM KNITS, INC. The Trial Examiner has no authority to review the Board's final dispositions of the representation issues or to question its conclusions made on the existing record. The Respondent is free, in exceptions to this Decision, to request the Board to reconsider the determinations in the representation case, and, in the event of an unfavorable final order by the Board the Respondent may request review of the determinations in an appropriate court of appeals. At this stage of the proceedings, however, absent newly discovered evidence, the Board's disposition of the representation matters is the law of the case and binding on the Trial Examiner. The question remains whether Respondent has newly discovered or previously unavailable evidence to prove that the certification was invalid. The only evidence Respondent attempted to introduce related to contracts the Union had with other employers in the area.' The Supplemental Decision and Certification of Representative, on which the Board refused to grant review, found that the Respondent had not established its contention that the union literature was false. However, the Decision went beyond that and found that if, assuming arguendo, the literature was false, it had to be viewed in the light of the 20 leaflets Respondent distributed, the 8 distributed by the Union, the 3 meetings held by the Respondent and the 2 meetings held by the Union. In one of those meetings the Union stated that benefits were subject to negotiations with the Respondent and that the Union could not promise that all benefits would be obtained. The Decision found that the employer had sufficient time and opportunity to reply effectively to the union literature, and the employees could intelligently evaluate the information given them. Finally the Decision analyzed the literature in question and found that it referred generally to what benefits union members received and did not necessarily say that all members receive these benefits. Respondent sought, through its attempt to introduce contracts the Union had with other employers, to establish as a fact that the union had distributed false information relating to benefits union members received. However, even if with a factual conclusion were reached the legal conclusion would remain unchanged that under the circumstances of this case, it could not be found that the election was unfair or failed to demonstrate the true wishes of the employees. Respondent has not raised any newly discovered or previously unobtainable evidence but has simply restated its original position. Baumritter Corporation, 164 NLRB -No. 56, enfd, 386 F.2d 117 (C A. 1). Respondent was unable to indicate any relevance that these documents might have to this proceeding other than as related to its objections to the election, but contends in effect that the evidence that would be disclosed by the contracts in question is newly discovered in the sense that such evidence is not in its control and is unobtainable F 2d 245, 249. `If there is nothing to hear, then a hearing is a senseless and useless formality.' 'The issue was raised on a petition to revoke subpoenaes . During the hearing, Respondent subpoenaed two union officials requiring them to produce contracts the Union had with other employers in the Hudson area, particularly with the Manhattan Shirt Company and Gant Shirt Company. One of these subpoenaes required the production of contracts which differed from the wage rates described in the union literature distributed to employees of Respondent in connection with the election campaign. Pursuant to a previous ruling that no evidence would be received in this case relating to the validity of the certification unless such evidence was newly discovered, I granted a petition to quash the subpoenaes insofar as they required the production of the documents heretofore mentioned. 451 except through its subpoena power. As counsel for Respondent stated "if you don't have anything, you can't introduce it." Other than the attempt to subpoena the contracts as set forth above, Respondent during the course of the hearing made no effort to introduce any evidence and it called no witnesses As Respondent argued before both the Regional Director of the Third Region and the Board that these contracts would show that the Union engaged in misrepresentation sufficient to set aside the election, it is clear that this issue was fully decided by the Board when it refused to grant Respondent's request for review. Respondent seeks through these proceedings to have the Board rule for a second time on its objections. This it cannot do. O. K. Van and Storage, Inc., 127 NLRB 1537, enfd. 297 F.2d 74. As the Board stated in that case: The Board has rejected the contention that a Respondent is entitled as a matter of right to a hearing on objections to an election. [Footnote omitted.] In order to prevent delay in election procedure the Board has uniformly refused to direct a hearing on objections unless the party supplies evidence of conduct which prima facie would warrant setting aside the election. The speculative possibility advanced by a party that evidence to support its allegations might be developed at a hearing is insufficient to warrant delay. For the reasons set forth above, I find that the Respondent's defenses are without substance and that it has refused to bargain in violation of Section 8(a)(5) of the Act.' B. The Alleged 8(a)(1) The facts set forth below are based upon a composite of the testimony of the witnesses for the General Counsel This testimony stands uncontradicted. In addition, the tenor of the testimony of each lent support to the testimony of the others and my observation of the demeanor of these witnesses while they were giving testimony convinced me that they were testifying truthfully. 1. The alleged surveillance On about October 26, 1967, Respondent's President and General Manager George Meyerson? parked near the union hall to observe who attended a union meeting. On the following day, Supervisor Edythe Graziano told employee Theresa Luongo about this surveillance. Supervisor Graziano also told Mrs. Luongo that Mr. 'The complaint also alleges that the Respondent violated Section 8(a)(5) by certain conduct in violation of Section 8(a)(1) which would tend to undermine the Union, by bargaining directly with employees after the certification and by making certain unilateral changes in working conditions after the certification All three of these allegations have meaning only if the underlying duty to bargain is established . As to the undermining and direct bargaining allegations they are discussed in the section below dealing with violations of Section 8(a)(1). As to the allegation of unilateral change in working conditions the uncontradicted testimony in the record establishes that the Respondent, without bargaining with the Union , and after the certification gave employees a half day paid holiday on Good Friday and also gave free coffee I find that the granting of these benefits constitutes an additional violation of Section 8(a)(5) of the Act. American School Supply Company, 157 NLRB 473 'The complaint alleges, the answer admits and I find that George Meyerson is the president and general manager and Edythe Graziano is a supervisor of Respondent and both are supervisors within the meaning of the Act 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meyerson was very angry at her because he had seen her go into the union hall and that if she voted for the Union she would not have a job. Mrs Graziano told her not to be seen with the union organizer and that if she did go o6't with him there would be no work for her. 2. The alleged threats On December 2, 1967, President Meyerson had a conversation with employees Martha Szepessy and Ruth Wilcox in the plant in which he informed them that he wanted to tell the girls that he was going to close the doors if the Union came in. He asked these two employees to tell the other employees. On February 2, 1967, Supervisor Graziano, in her own home, had a conversation with her sister, employee Martha Szepessy. Mrs. Szepessy testified as follows: "and she, also asked me why I wanted the Union. I said `for security.' Well, she said, `what security will you have if Gem Knits closes its doors?' I said, `I will go and look for another job.' She said `I will see to it that you don't get another job around this area again.' . . She also said that 95 percent of the girls in the shop were for the Union because of me." As noted above, this testimony was uncontroverted and it is credited. In October 1967, President Meyerson told employee Lorain Schemerhorn that the plant would have to close if the Union got in, as the Company could not afford the Union. In January or February 1967, Mr. Meyerson called employee Mary Rutkowski into his office. He told her that he wanted a new election, that it would be her job if the Union got in and that he would have to close the plant. President Meyerson on or about October 26, 1967, told employee Philomena Nuendel and in December 1967, told employee -Catherine Otty that Respondent would not purchase new equipment until things had worked out. Both conversations were in the context of discussions about the Union. In the conversation with Catherine Otty, Mr. Meyerson also stated that the planned Christmas party had been called off until things were settled. In November 1967, foreman Louis Cravers told employees Catherine Otty and Diana Meer that he had spoken to other employers in the Hudson area and that the girls who voted for the Union would never be able to find another job in that area. In early January 1968, a petition for a new election was being circulated in the plant. Supervisor Graziano approached employee Catherine MacDonald and asked her to sign the petition. She also asked Catherine MacDonald to see if the other girls at her table would sign. In the first or third week of January 1968, Mrs. Graziano asked employee Catherine Otty to sign the petition for a new election and added that if they did not get the names on the petition, the mill would close down. Mrs. Graziano also spoke to employee Mary Rutkowski about this time and told her to think over her refusal to sign the petition as it could mean her job, On about March 11, 1968, Supervisor Graziano told employee Theresa Luongo that if there were a strike and the girls went out, the plant would be closed Mrs. Luongo was told by President Meyerson about that time 'In his testimony on the record in Gem Knits, Inc, Case 3-RC-4295, President Meyerson stated that Louis Craver was a supervisor, that he had authority to discipline and reprimand employees and that if he were to recommend the discharge of an employee , the recommendation would be followed Based on these admissions against interest I find that Louis Craver is a supervisor within the meaning of the Act. that if the Union came in the plant would be shut. Also in early March 1968, Mr. Meyerson told employee Philomena Nuendel that if the girls walked out- on strike, he would use it as an excuse to lock his doors. 3. Alleged promises of benefits At a plant meeting on March 11, 1968, President Meyerson told the employees, that he would not bargain with the Union but that he would give benefits including holidays and vacations. He also made a promise of benefits to employees including Lillian Cush in the beginning of February and added that he could give as many benefits as the Union with no union dues. On March 11, 1968, at a plant meeting President Meyerson told the assembled employees that Respondent was going to give them'a half day off with pay on Good Friday,and free coffee. He said further that the plant was looking into insurance. 4. The alleged direct negotiations with employees Near the end of December 1967, President Meyerson called employees Szepessy, Nuendel, Krisniski and Kisselbranch into his office. Mr. Meyerson told them that he wanted the girls to form' a committee so that he could have a contract with them. He said that he would give holidays, vacations and other benefits. Employee Nuendel asked "you want to give us what the Union wants to give us without the Union," and he answered that that was right. Vacations, seniority, job transfer and pay differential were promised in the contract. Subsequently, Mr. Meyerson discussed the proposed contract with other employees. 5. Additional allegations of 8(a)(l) Near the end of September 1967, Supervisor Graziano spoke to employee Edna O'Leary in the plant and asked her to sign a paper saying that some of the girls who worked for the Union threatened her. She refused to sign and answered that she had not been threatened. In October 1967, President Meyerson, in the company office, told employees Philomena Nuendel and Sandy Killelbrach that he believed that they had called in the Union and he asked them why 'they stayed if they did not like working there. ,6 Analysis as to the 8(a)(1) allegations The uncontradicted and credited facts set forth above establish that Respondent has engaged in a consistent and continued series of activities to undermine the certified bargaining agent among its employees and to interfere with employee rights under Section 7 of the Act. The surveillance of union activity, the creation of the impression of surveillance, the threat to Mrs. Luongo that she would lose her job if she voted for the Union or was seen with the union organizer, the threat to other employees that the plant would close and their jobs would be lost if the Union came in, the threats to employees that they would be unable to get other, jobs in the area because of their union activities, the statement to employees that no new equipment would be purchased and that the Christmas party was cancelled in the , context of a discussion about the Union, the soliciting of employees to sign a petition for a new election and the threat that they would lose their employment if they had not signed, the GEM KNITS, INC. promise of benefits to discourage union activity, and the attempt to negotiate a contract directly with employees after the certification all are in violation of Section 8(a)(1) of the Act and I so find.' In the context of this activity I also find that Respondent violated Section 8(a)(1) of the Act by requesting employee Edna O'Leary to sign a paper saying that some of the prounion girls had threatened her and by telling employees Neundel and Killelbrach that they had called in the Union and asking them why they stayed if they did not like the work.'° C. The Alleged 8(a)(3) and (I p' 1. Facts The facts set forth below are based on the uncontradicted testimony of employee Theresa Luongo and union organizer Frank Luongo. Mrs. Luongo, who was recently married, was formerly known as Theresa Altomer and she is alleged in the complaint as a discritninatee under that name. Her husband is Frank Luongo, an organizer for the Union who has been assigned by the Union to organize Respondent. Thus a possibility of bias does exist. However, after carefully observing Mrs. Luongo on the witness stand I believe her to be an honest witness who takes her oath very seriously. In addition, much of her testimony is corroborated by other witnesses and as Respondent did not call any witnesses her testimony stands uncontradicted. Union organizer Frank Luongo began organizing Respondent in July 1967. During his conversations with various employees he was told that certain working conditions were bad and that many employees were not paid for overtime., Based on these complaints, Mr. Luongo contacted various governmental agencies including, the Wage and Hour Division of the United States Department of Labor. He then told various employees that their complaints had been registered. The Wage and Hour Division investigated and found that certain employees including Theresa Luongo had been underpaid. In Mrs. Luongo's case the amount was $720. In the beginning of 'The attempt to negotiate a contract directly with the employees after the Union was certified also constitutes a breach of Respondent 's duty to bargain with the Union and therefore violates Section 8(a)(5) of the Act In addition all of Respondent's conduct found herein to violate Section 8(a)(1) of the Act which occurred after the Union was certified tended to undermine the Union as well as to interfere with the Section 7 rights of the employees and constituted violations of Section 8(a)(5) of the Act. 10At the hearing, the General Counsel amended the complaint to add as paragraph 6(v) an allegation of interrogation General Counsel's proof as to this subparagraph consisted of testimony that President Meyerson called employees into his office, told them he was thinking of protesting the election and asking if the Union had made any threats to them . It is noted that he was not asking the employees about any protected or union activity in which they may have engaged . The question appears to be a step in preparation for Board proceedings rather than unlawful interrogation, and I so find. The record contains much testimony relating to predictions that important business would be lost and that Michael Pauker, an admitted agent of Respondent with some undisclosed interest in the Company, would leave it the Union became the bargaining agent of the employees While the evidence might indicate unlawful veiled threats to close, I find it unnecessary to make any findings thereon in view of the direct evidence of threats set forth above. In any event the Recommended Order relating to 8(a)(11) violations would be the same. "During the course of the hearing Counsel for the General Counsel moved to delete from the complaint the allegation that Carmela Manuh was laid off in violation of the Act The Charging Party joined in the motion and it was granted 453 January 1968, President Meyerson spoke to Mrs. Luongo and told her that she had money due her but that he did not want her to take it. He said he would write a note that he wanted her to sign. The following day Mr. Meyerson wrote out and gave Mrs. Luongo the following note: Dear Mr. Meyerson, I thank you for offering me this check that you wish to pay because of the labor dept found I did something that wan't right. I do not feel I earned this money and I cannot accept it. Mrs. Luongo then took the note and showed it to other girls in the plant. The following day Mrs. Luongo was called into Mr. Meyerson's office and he said to her- . . . `I thought this would be confidential between you and me. I didn't want you to go out and show it to the girls ' .... . `Do you understand what it is? You are being disloyal to me.' * * ... `If you accept this check . I will take all of the privileges away from you.' . . . `No other work.' `You only got button work and that is it.' .. `You only got a few more buttons to do. When you finish those buttons, you can go home.' On January 8, 1968, when she finished her button work, Mrs. Luongo was laid off. She was recalled on January 23, 1968. Mrs Luongo is an employee of 7 years standing. During that time she worked on button holes, cover stitching, hemming, blind stitching, pressing, and cutting room work. She worked on all the machines in the plant except the binding machine. Prior to January 8, 1968, she had never been laid off. When she would finish one job she would be assigned to another. Analysis as to the January 8 layoff The complaint alleges that the layoff of January 8 to 23, 1968, violated Section 8(a)(1) and (3) of the Act. The evidence establishes that Mrs. Luongo was laid off because she declined to refuse the payment due her for overtime work. This action on Mrs. Luongo's part is directly connected to and intertwined with the complaint of employees to the union organizer concerning working conditions and the transfer of this complaint from the union organizer to the Wage and Hour Division. The employee complaints to the Union, together with the employee activities flowing out of such complaints, including the refusal of Mrs. Luongo to decline to accept the check due her, directly related to working conditions and were concerted activities for mutual aid and protection within the meaning of Section 7 of the Act. As a number of employees were entitled to money for overtime and as Mr. Meyerson knew that the "note" that he had prepared for Mrs. Luongo to sign had been circulated among other employees, Respondent had knowledge that the entire incident was not something individual to Mrs. Luongo but involved other employees. Walsh Manufacturing Company, Inc, 137 NLRB 1317, enfd. 321 F.2d 753. I find that by laying off Mrs. Luongo from January 8 to 23, 1968, Respondent interfered with employees in the exercise of their Section 7 rights and therefore violated Section 8(a)(1) of the Act. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, Montgomery Ward & Co., Incorporated, 156 NLRB 7. Cf. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB 618, enfd. 285 F.2d 8.12 The layoff of Mrs. Luongo from January 31 to February 7, 1967 As already mentioned , in January 1968 a petition for a new election was being circulated in the plant On January 31, 1968, Mrs. Luongo, who was then doing seaming and other nonbutton work, was approached by employee Mary Aldrich who asked her to sign the petition for the new election After some discussion , Mrs. Luongo refused to do so. Mary Aldrich then walked about 30 feet away where Supervisor Graziano was standing , and spoke to Mrs. Graziano for a few moments . Immediately thereafter, Mrs. Graziano walked over to Mrs. Luongo and told her that there would be no work for her the following day and that there would be no work until button work became available At the time Mrs. Luongo was working on closing sleeves and she had a few more days' work of that nature to do. Mrs. Luongo was recalled oil February 7, 1968 and she has continued to work since. Analysis as to the January 31 to February 7 layoff Though there is no evidence as to what was said between Supervisor Graziano and employee Mary Aldrich, the conclusion from the entire pattern of conduct is inescapable that the motivating factor causing the second layoff of Mrs. Luongo was her refusal to sign the petition fora new election . Respondent called no witnesses and made no effort to rebut this inference I find that the layoff of Mrs. Luongo from January 31 to February 7, 1968, was in violation of Section 8(a)(3) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate and substantial relation 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. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees, including plant clerical employees employed by Respondent at its plant, excluding all office clerical employees and guards, professional employees and supervisors as defined in the "It is also alleged that this layoff constituted a violation of Section 8(a)(3) of the Act. Though the layoff was a discrimination in employment the question is presented whether it discouraged membership in the Union The Union did act as intermediary in passing on employee complaints to the Wage and Hour Division but there is no evidence in the record to indicate that Respondent knew that the Union was involved. Nor is there any evidence that Respondent intended to use this layoff to discourage membership in the Union I therefore find that Respondent did not violate Section 8(a)(3) by laying off Mrs. Luongo from January 8 to January 23, 1968. Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3 Since January 16, 1968, the Union has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing on or about February 27, 1968, and at all times thereafter to bargain collectively with the Union as the exclusive bargaining representative of all the employees of Respondent in the aforesaid appropriate unit, Respondent has engaged in and is now engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act and by laying off Theresa Luongo from January 8 to 23, 1968, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By laying off Theresa Luongo from January 31 to February 7, 1968, because of her refusal to sign a petition for a new election, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and upon request bargain collectively with the Union as the. exclusive representative of all employees in the unit set forth above and if an understanding is reached embody such an understanding in a signed agreement. Having found that Respondent has laid off Theresa Luongo in violation of the Act, I shall further recommend that Respondent make Theresa Luongo whole for any loss of pay that she may have suffered by reason of her unlawful layoffs in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In order to insure that the employees will be accorded the statutorily prescribed services of their selected bargaining agent for the period provided by law, it will be recommended that the initial year of certification begin on the date the Respondent commences to bargain in good faith with the Union as their recognized bargaining representative in the appropriate unit.13 Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following ORDER A. For the purpose of determining the effective period of duration of the certification the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as a recognized bargaining representative in the appropriate unit. 13LTY Electrosystems. Inc, supra GEM KNITS, INC. B. Gem Knits, Inc , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive collective-bargaining representative in the following appropriate bargaining unit. All production and maintenance employees including plant clerical employees employed by Respondent at its plant in Hudson, New York, excluding all office clerical employees and guards, professional employees and supervisors as defined in the Act. (b) Interfering with the efforts of the Union to negotiate or represent the employees in said appropriate unit as the exclusive collective-bargaining representative. (c) Discouraging membership in the Union or any other labor organization of its employees, by laying off employees or otherwise discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. (d) Engaging in or creating the impression of engaging in surveillance of the union activities of its employees. (e) Threatening its employees with the closing of the plant, the loss of employment and poor working conditions through the failure to buy new equipment in order to discourage activities on behalf of the Union. (f) Threatening employees that they will be unable to obtain other employment because of their union activities (g) Soliciting its employees to sign a petition for a new election and threatening employees with loss of employment if they refuse to sign such a petition. (h) Promising employees benefits as an inducement to renounce the Union as their exclusive bargaining agent. (i) Unilaterally changing wages, hours or conditions of employment, dealing directly with employees in the unit concerning their jobs, wages, working conditions, conditions of employment or contracts, and bypassing or ignoring the aforesaid union as the exclusive bargaining representative of all employees in the certified unit. 0) In any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with the Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of woik and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Make whole Theresa Luongo for any loss of earnings she may have suffered by reason of her layoffs from January 8 to 23, 1968, and from January 31 to February 7, 1968, in the manner set forth in the section of this decision entitled "The Remedy." (c) Post at its Hudson, New York, plant, copies of the attached notice marked "Appendix ."'" Copies of said notice, on forms to be furnished by the Regional Director for Region 3 shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and 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. 455 (d) Notify the Regional Director for the Third Region, in writing, within 20 days from the receipt of this decision, what steps it has 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 for Region 3, 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 NOT refuse to bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive collective-bargaining representative of our employees in the following appropriate bargaining unit: All production and maintenance employees, including plant clerical employees, employed by us at our plant in Hudson, New York, excluding all office clerical employees and guards, professional employees and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of the above-named union to negotiate or represent the employees in said appropriate unit as the exclusive collective- bargaining representative. WE WILL NOT discourage membership in the above-named union or any other labor organization of our employees, by laying off employees or otherwise discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT engage in or create the impression of engaging in surveillance of the union activities of our employees. WE WILL NOT threaten our employees with the closing of the plant, the loss of employment, or poor working conditions through the failure to buy new equipment, in order to discourage activities on behalf of the above-named union. WE WILL NOT threaten our employees that they will be unable to obtain other employment because of their union activities. WE WILL NOT solicit employees to sign a petition for a new election or threaten our employees with loss of employment if they refuse to sign such a petition. WE WILL NOT promise our employees benefits as an inducement to renounce the above-named union as their exclusive bargaining agent. WE WILL NOT unilaterally change wages, hours or conditions of employment, deal directly with our employees in the unit concerning their jobs, wages, working conditions, conditions of employment or contracts, or bypass or ignore the aforesaid union as the exclusive bargaining representative of all employees in the aforesaid unit. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any manner interfere with , restrain or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act. layoffs from January 8 to 23, 1968, and from January 31 to February 7, 1968. WE WILL, upon request, bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of work and other terms and conditions of employment , and embody in a signed agreement any understanding reached. WE WILL make whole Theresa Luongo for any loss of earnings she may have suffered by reason of her Dated By GEM KNITS, INC. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board' s Regional Office, 4th Floor, The 120 Building , 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3100.