Levi Strauss & Co.

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Levi Strauss & Co. and Southwest Regional Joint Board, Amalgamated Clothing Workers of Amer- ica, AFL-CIO. Cases 16-CA-2874 and 16-RC-4459 June 28, 1968 DECISION AND ORDER On September 28, 1967, Trial Examiner John P. von Rohr issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended that such allega- tions be dismissed. The Trial Examiner found, in addition, that the Respondent's unlawful conduct had interfered with a Board election held on Janu- ary 6, 1967, and recommended that the election be vacated and set aside and the petition dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Charging Party filed crossexceptions to the Trial Examiner's Decision and a supporting brief. 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-ex- ceptions, and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.' 1. Wee agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act by, inter alia, maintaining an illegal no-solicitation, no- distribution rule during the 6-month period im- mediately preceding the filing of the charge herein. See Sparks Nugget, Inc., 161 NLRB 1195; Higgins Industries, Inc., 150 NLRB 106, in. 2. As this conduct was before the Trial Examiner as part of Objection 12, we find that the maintenance of the rule constituted an additional ground for setting aside the election. See Edmont, Inc., 139 NLRB 1528. 2. We also agree with the Trial Examiner that the Union was designated by a majority of em- ployees in the appropriate unit when it demanded recognition, and that the Respondent violated Sec- tion 8(a)(5) of the Act by refusing to recognize and bargain collectively with it. The Respondent excepts to the Trial Examiner's finding that the unit found appropriate in the representation proceeding is appropriate herein for the purposes of collective bargaining. Its contention is based on the fact that the unit placement of trainers and head mechanic, who were allowed to vote in the election subject to challenge, has not, as yet, been determined. In the absence of any contention that the unit placement of these individuals would affect the status of the Union as the majority representative of the em- ployees in the unit found appropriate, we find no merit in this exception. With respect to the Union's majority status, the Trial Examiner found that the Union had 87 valid authorization cards in a unit of 163 employees. He arrived at his computation of a majority after find- ing it unnecessary to pass on the validity of the cards of 14 other employees. The Respondent has excepted to the Trial Examiner's failure to invalidate a substantial number of the 87 cards on the ground that the employees, in the course of solicitation, were told that the cards would be used to get an election, or only to get an election. The cards on their face, however, spell out in clear and unambiguous language an authorization for the Union to represent the signer for collective bargain- ing. The Trial Examiner found, and we agree, that although in some instances the possibility of an election was mentioned, none of these employees were told either in specific terms , or in general as- surances that were susceptible to such interpreta- tion or inference, that the cards would be used only for the purpose of getting an election.' In these cir- cumstances, we, like the Trial Examiner, find no merit in the Respondent's contention that the chal- lenged cards on which we rely should be in- validated as having been obtained through misrepresentation. Our ruling in this regard is in ac- cord with previously adopted Board principles." ' The Trial Examiner , apparently inadvertently , referred to the date of Weigman's interrogation of Nick as January 6; the correct date is May 9, 1967 t Member Zagoria would not find that the plant manager 's statements that the Union , if selected , would force the Respondent to impose more stringent production quotas, and that the Union would require employees to go through the Union to obtain a leave of absence, violated Section 8(a)( I) of the Act ' In Member Zagona 's opinion the statements made to Harris , that it was not a membership card and that " we would sign a membership card after the Union was voted in ", and to Layne, that signing a card "didn't mean that we were joining the Union, that we had our choice when the election came up," are susceptible to the interpretation or inference that these cards would be used only for an election Accordingly, he would not rely on their cards in affirming the trial Examiner 's finding of majority status ' See Cumberland Shoe Corp , 144 NLRB 1268, and Order Amending Decision , January 13, 1964, enfd 351 F 2d 917 (C A 6) For other court cases upholding that principle, see , e g , Preston Produus Co , 158 NLRB 322, enfd 373 F 2d 671 (C A D C ), cert denied 392 F 2d 801, Bernard Happach v. N.L.R B., 353 F.2d 629 (C A. 7); Amalgamated Clothing Workers of America, AFL-CIO [Sagamore Shirt Co I v. N.L R.B., 365 F.2d 898, 907 (C.A.D.C.) 172 NLRB No. 57 LEVI STRAUSS & CO. However, because their validity has been questioned by some courts' and in some other quar- ters, we take this occasion to restate our reasons for holding in this case, as we have in the past, that election-purpose statements of the kind here in- volved are not of an invalidating character. The central inquiry in determining the effect to be given authorization cards is whether the em- ployees by their act of signing clearly manifested an intent to designate the union as their bargaining agent . The starting point, in assessing that intent, is the wording of the card. Where a card on its face clearly declares a purpose to designate the union, the card itself effectively advises the employee of that purpose, and particularly so where , as here, the form of the card is such as to leave no room for possible ambiguity.' An employee who signs such a card may perhaps not understand all the legal ramifications that may follow his signing , but if he can read he is at least aware that by his act of sign- ing he is effectuating the authorization the card declares . To assume that the employee does not in- tend at least that much would be to downgrade his intelligence or charge him with irresponsibility. We are unwilling to do either . Without ascribing to such cards and their signing all the solemnity and binding effect associated with deeds, or wills, or contracts , or bills and notes, there is, we believe, in the case of clearly expressed authorization cards, as in the case of other signed instruments , no valid basis in reason or law for denying face value to the signed cards, absent affirmative proof that the signing was a product of misrepresentation or coercion. Declarations to employees that authorization cards are desired to gain an election do not under ordinary circumstances constitute misrepresenta- tions either of fact or of purpose . As in the instant case , where the Union did use the evidence of em- ployee support reflected by the cards to get an elec- tion , such declarations normally constitute no more than truthful statements of a concurrent purpose for which the cards are sought. That purpose, moreover, is one that is entirely consistent with the authorization purpose expressed in the cards, as ' See N L R B v Peterson Bros , Inc , 342 F 2d 221 ( C A 5), Engineers & Fabricators , Inc v N L R B 376 F 2d 482,486-487 ( C A 5), Crawford Mfg Co v N L R B , 386 F 2d 367 ( C A 4), cert denied 390 U S 1028 ' Because the card here involved is forthright and unambiguous in its heading and text , the instant case is distinguishable for that reason alone from N L R B v Peterson Bros , /pie , supra There the court was concerned with a card which it regarded as ambiguous on its face, and its decision was based on that premise But see N L R B v C J Glasgow Co , 356 F 2d 476 ( C A 7), where a di- vided panel held very similar, dual purpose , signed authorization cards to be unambiguous and valid designations of the union as bargaining representative 733 well as with the use of the cards to establish majori- ty support. A point sometimes overlooked is that in basic purpose there is no essential difference between cards that are needed for a showing of in- terest to gain an election and cards that must be used to support a majority designation showing in a Section 8(a)(5) complaint proceeding . Thus Sec- tion 9(c)(1)(A) refers to a showing "that a sub- stantial number of employees ... wish to be represented for collective-bargaining purposes and that their employer declines to recognize their representative ." Such a showing obviously cannot be made by cards which simply request an election. The requisite showing under the law must be by cards stating the employees' wish to be represented by a particular labor organization , a requirement that entails an expression of intent in all respects the same as that in an authorization card. Thus the fact that employees are told in the course of solicitation that an election is contem- plated , or that a purpose of the card is to make an election possible , provides in our view insufficient basis in itself for vitiating unambiguously worded authorization cards on the theory of misrepresenta- tion . A different situation is presented , of course, where union organizers solicit cards on the explicit or indirectly expressed representation that they will use such cards only for an election and sub- sequently seek to use them for a different purpose; i.e., to establish the Union 's majority indepen- dently. In such a situation the Board invalidates the cards for majority computation because the nature of the representation is such as to induce a condi- tional delivery for a restricted purpose and there is apparent fraud when that restriction is exceed.' We do not think that our approach applies too lax a standard . Rather, we believe our standard is one that comports not only with sound legal princi- ples but also with the realities of union organiza- tional practices . The Board's experience shows that in nearly all organizational situations unions expect to, and do, proceed via the election route in their effort to gain representation rights, and that they obtain designation cards with the thought of using them primarily to make the showing of interest ' The foregoing does not of course imply that a finding of misrepresenta- tion is confined to situations where employees are expressly told in hart verba that the "sole" or "only" purpose of the cards is to obtain an elec- tion The Board has never suggested such a mechanistic application of the foregoing principles, as some have contended The Board looks to sub- stance rather than to form It is not the use or nonuse of certain key or "magic" words that is controlling , but whether or not the totality of circumstances surrounding the card solicitation is such as to add up to an assurance to the card signer that his card will be used for no purpose lother than to help get an election 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required for the processing of a representation peti- tion. It is therefore only to be expected that there will be considerable talk during an organization campaign of a contemplated representation proceeding and of the need for sufficient authoriza- tion cards for that purpose; indeed it would be sur- prising if no such mention was made. It is in the ex- ceptional and relatively infrequent situations, most of them of the Joy Silk character,' when an em- ployer by his unfair labor practices has made a fair election impossible, that unions with a card majori- ty resort to 8(a)(5) complaint proceedings in an ef- fort to establish their right to representation-in fact, that avenue is normally closed to unions unless substantial independent unfair labor practices have occurred.' We perceive no valid reason for refusing in a complaint proceeding to accord the usual probative value to unambiguous authorization cards simply because, at the time it still thought it might have a fair election, a union may have stressed the election use of the cards rather than the alternative use to which they were later put. As noted above, there is no conflict or contradiction in purpose between the use of cards to make a showing of in- terest in election cases and the use of the same cards to establish majority in the limited situations permitted under the Joy Silk doctrine. In either case the cards evidence an intent to be represented by the union. Absent some other disability, their use, 'Jos Silk Mills. Inc , 85 NLRB 1263, cnfd 185 F 2d 732 (C A D C cert denied 341 U S 914 "This is borne out by the Board's case statistics In fiscal year 1967, for instance, the Board conducted 8,116 elections Cases in which union majorities were determined by cards, apart from elections , numbered 157-about 1 9 percent of the number of elections conducted Of the aforesaid 157 cases, all but 16 involved situations where a fair election was made impossible or was invalidated by employer unfair labor practices These 157 cases were not only those in which Board decisions issued, but included all such cases, whether closed by informal or formal settlement agreement in the Region, by Trial Examiner recommendation , by Board Order, or by court decree 10 Several commentators and courts recently have improperly attributed to the Board the suggestion that authorization cards are not reliable as an expression of the desire of employees to be represented for purposes of col- lective bargaining , citing Suiibeani Corporation, 99 NLRB 546 In Sunbeam Corporation the Board said that " authorization cards are a notoriously unreliable method of determining majority status of a union as a basis for making a contract %here competing unions are soliciting cards, because of the duplications which then occur " (Emphasis supplied ) Sunbeam Corporation , 99 NLRB 546, 550-551 On several recent occa- sions, the phrase " notoriously unreliable " has been excised from its limited context of a two-union situation and attributed to the Board as indicative of its attitude towards authorization cards in one -union situations When so used, the phrase is inaccurate The full import of the phrase becomes clear when it is read in its limited and intended context, as follows What is the law with respect to the rights and obligations of an em- ployer whose employees are simultaneously being organized by two or more labor organizations, the condition which confronted Sunbeam in August 19509 The doctrine has long obtained without question that or proposed use, to secure an election does not alter their essential character as union designations. To hold that emphasis upon an election purpose during an organizational campaign is alone suffi- cient to impair the validity of unambiguous authorization cards when they are subsequently sought to be used in an 8(a)(5) proceeding occa- sioned by an employer's election interference would only allow an employer to profit from his own unfair labor practices and thereby frustrate statutory policy.10 Nor are we able to subscribe to the dictum ex- pressed in one recent court case" that when cards are "challenged because of alleged misrepresenta- tions in their procurement," the Board must probe "into the subjective intent of the challenged signers." Such a standard is at odds with a long line of judicial authority holding that, in the absence of clear proof of fraud or coercion, full effect must be given a clear authorization card regardless of the subjective state of mind of the signer.12 As stated by the court in the Joy Silk Mills case, "an em- ployee's thoughts (or afterthoughts) as to why he signed a union card and what he thought that card meant cannot negative the overt action of having signed a card ...." To open up avenues of proof of subjective intent would create strong temptations for employers to induce employees to assert a retroactive disavowal, and such testimony would the employer must be strictly neutral -he cannot give any form of sup- port to one of the rival unions, if he does he violates Section 8(a)(2) of the Act As the Court of Appeals for the Seventh Circuit stated in Har- rison Sheet Steel Co v N L R B , 194 F 2d 407, "He must maintain a strictly neutral attitude Especially is this so where the adherence of the employees is being sought by rival labor organizations," That the making of a contract with a union is the most potent kind of support imaginable cannot be doubted This Board has also long recognized that authorization cards are a notoriously unreliable method of deter- mining majority status of a union as a basis for making a contract where competing unions are soliciting cards, because of the duplica- tions which then occur Thus as the Board said in Midwest Piping and Supply Company it is well known that membership cards obtained during the heat of rival organizing campaigns like those of the respondent's plants do not necessarily reflect the ultimate choice of a bargaining representative, indeed, the extent of dual membership among the employees during periods of intense organizing activity is an important unknown factor affecting a determination of majority status, which can best be resolved by a secret ballot among the employees The utilization of authorization cards to ascertain majority status not only by this Agency but also (a ) by agreement of the parties voluntarily through unofficial channels, (b) by the American Arbitration Association, and (c ) by a majority of the state labor relations agencies is a sufficiently common, well-established and well - known practice to cast serious doubt on the sweeping denunciations of such proof 11 Engineers & Fabricators, Inc v N L R B , supra 12 See, e g, N L R B v Fosdal Electric, 367 F 2d 784, 786-787 (C A 7), N L R B v Gorbea, Perez & Morell, 300 F 2d 886, 887 (C A 1), Joy Silk Millsv N L R B , supra , Furr's Inc v NLRB, 381F2d562(CA 10) LEVI STRAUSS & CO. 735 not be subject to the normal evidentiary checks on truth or falsity.13 In this case, as noted above, the Trial Examiner found that there was no direct or indirect represen- tation to the card signers, on whose cards we rely,. that the only purpose of the cards was to get an election. The record supports and we adopt that finding. Accordingly, we find that the Union represented a majority in the appropriate unit of 163 employees on September 23, 1966. Therefore, and as we also find no merit in Respondent's other exceptions, we adopt the Trial Examiner's findings and conclusions. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Levi Strauss & Co., Tyler, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified.14 1. Add the following to paragraph 1(b) of the Trial Examiner's Recommended Order: "However, nothing herein contained shall be construed as requiring the Respondent to revoke any wage benefits it has heretofore granted." 2. Substitute the following for paragraph 2(a) of "See N L R B v Southbridge Sheet Metal WorIc, Inc, 380 F 2d 851 (C A I), where the court stated "Moreover the vacillating testimony of employees in the hearing , held almost a year after the organizing campaign concluded, under the scrutiny of company counsel and officials, illustrates the wisdom of requiring fairly strong evidence of misrepresentation and evidence of communication and recantation before cards secured at a much earlier date are adjudged invalid " And see N L R B v Preston Products, .supra, where the Court of Appeals for the District of Columbia stated " we have here the classic case of employees testifying under the eye of the company officials about events which occurred almost a year be- fore and prior to the activities which were subsequently found to constitute unfair labor practices It is certainly conceivable that those same threats and benefits which shook an employee's original support for the union also altered that employee's memory as to events which occurred before the presentation of such threats and benefits By the time of the hearing the employees may well have changed their mind with respect to union affilia- tion, but the crucial question in a refusal to bargain case is whether the union had the support of a majority of the employees in an appropriate bar- gaining unit at the time the request to bargain was made , and not whether that support remains intact some ten months later " " The Charging Party, in its cross-exceptions, requests a monetary remedy to make the employees whole for losses they may have suffered as a result of the Respondent 's unlawful refusal to bargain We deem it inap- propriate in this case to depart from our existing policy with respect to remedial orders in cases involving violations of Section 8(a)(5), and therefore deny the said request Monroe Auto Equipment Company, Hart- well Division , 164 NLRB 1051 In accord with the request of the Charging Party, we shall , however, substitute for the notice recommended by the Trial Examiner , a notice expressed in simple and readily understandable language J P Stevens & Co, Inc , 167 NLRB 266 the Trial Examiner's Recommended Order:15 "Make Lula B. Casey whole for any loss of pay she may have suffered in the manner set forth in the Trial Examiner's Decision as modified herein, and notify her that reinstatement was without prejudice to her seniority or other rights and privileges." 3. Delete the period at the end of paragraph 2(b), substitute a comma therefor, and add the fol- lowing: "and, if an understanding is reached, embody such understanding in a signed agreement." 4. Substitute the notice attached hereto for the notice set forth in the Trial Examiner's Decision. IT IS FURTHER ORDERED that the Petition for Cer- tification of Representative, filed in Case 16-RC-4459, be, and it hereby is, dismissed, and that all prior proceedings held thereunder be, and they hereby are, vacated. " As it is not clear from the record when employee Casey would have returned to work absent the Respondent 's discrimination against her, we shall leave to the compliance stage of these proceedings the amount of backpay required to make her whole for the discrimination against her APPENDIX NOTICE TO ALL EMPLOYEES THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence , the National Labor Relations Board found that we, Levi Strauss & Co., violated the Na- tional Labor Relations Act, and ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join , or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. You are free to join the Amalgamated Clothing Workers of America, AFL-CIO. WE WILL NOT ask you anything about your union activities and feelings. WE WILL NOT threaten to take away your present benefits if you choose a union to represent you. WE WILL NOT give you benefits in order to influence your feelings about a union. How- 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, we are not required to take away benefits we have already given you. WE WILL NOT maintain a rule which does not allow you to take part in union activity on our property when you are on your own time. WE WILL NOT fire you or treat you dif- ferently in any way because you join a union or support a union. WE WILL recognize Southwest Regional Joint Board , Amalgamated Clothing Workers of America , AFL-CIO, as the only collective-bar- gaining representative of All production and maintenance em- ployees employed at our Tyler, Texas, plant, including mechanics and plant cleri- cal employees, but excluding office cleri- cal employees, professional employees, guards, and supervisors as defined in the Act. If this Union asks us to bargain , WE WILL bargain collectively with it about the pay, working hours, and working conditions of the employees in the above unit. If we reach an un- derstanding with this Union , the understanding will be put into a signed agreement. The National Labor Relations Board found that we fired Lula B . Casey because she was a union member and worked for the Union the board found that firing her for these reasons violated the Na- tional Labor Relations Act. WE WILL make up any pay Lula B. Casey lost and will pay her 6 percent interest. WE WILL also notify her that when we gave her back her job she did not lose any seniority or other benefits. LEVI STRAUSS & CO. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR , Trial Examiner: Upon a charge filed on January 16, 1967, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 16 (Fort Worth, Texas), issued a complaint on March 31, 1967, against Levi Strauss & Co., herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The Respondent's answer denies the allegation of unlawful conduct alleged in the complaint. Con- solidated with the hearing on the alleged unfair labor practices was a hearing with respect to issues raised by certain objections filed by the Union to conduct affecting the results of an election held among the employees on January 6, 1967.' Pursuant to notice , a hearing was held before Trial Examiner John P. von Rohr in Tyler, Texas, on May 8, 9, 10, 11, 12, 15, and 16, 1967. All parties were represented by counsel and were af- forded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs have been received from the General Coun- sel, the Respondent, and the Charging Party and they have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the fol- lowing: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation with plants located in various States of the United States where it is engaged in the manufacture of men's and boys' pants and various other items of apparel. Respondent's Tyler, Texas, plant is the only plant involved in this proceeding. During the 12 months preceding the hearing herein, Respondent sold and shipped goods valued in excess of $50,000 directly from its Tyler, Texas, plant to points and places outside of the State of Texas. During the same period the Respondent purchased and received goods at its Tyler plant valued in excess of $50,000 directly from points outside the State of Texas. The Respondent concedes, and I find, that it is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. ' The Regional Director issued an Order on April 20 , 1967, consolidat- ing the unfair labor practice case with the objections to the election The election was held pursuant to a Decision and Direction of Election issued by the Regional Director on December 1. 1966 LEVI STRAUSS & CO. 737 A. Introduction; The Issues Following an organizational campaign among Respondent's employees by the Charging Union, which campaign commenced in about the middle of March 1966, a Board-conducted representation election was held on January 6, 1967, among the employees in the following unit:' All production and maintenance employees at the Employer's Tyler, Texas, plant including mechanics and plant clerical employees, but excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. The election resulted with 50 votes being cast for the Union and 83 against. The Union thereafter filed timely objections to the election, said objec- tions having been consolidated for hearing in the instant case. These objections correspond to vari- ous of the alleged Section 8(a)(1) allegations and are noted and disposed of in the concluding section of this Decision. The principal issues in this case are: (1) whether certain Respondent conduct prior to the election of January 6, 1967, constituted interference, restraint, and coercion violative of Section 8(a)(1) of the Act; (2) whether the discharge of Lula B. Casey on the day of the election was violative of Section 8(a)(3) of the Act; (3) whether the authorization cards signed by a majority of the employees con- stituted valid designation cards to be counted in determining the Union's majority status; and (4) whether the Respondent 's refusal to bargain with the Union was motivated by a good-faith doubt as to the Union's claimed majority status. B. The Request and Refusal To Bargain; the Union's Majority Status By letter dated September 21, 1966, the Union advised the Respondent that a majority of the em- ployees in the appropriate unit had designated it as their collective-bargaining agent and requested that it be recognized as the exclusive bargaining representative for the employees in the said unit. The letter concluded as follows: We stand prepared, at any reasonable time, to submit our signed membership cards for a check against a current Company payroll, by an impartial person, or persons, of public standing in the Tyler, Texas, community, which person or persons would thereupon furnish both the union and your firm with sworn affidavits concerning the findings of said card check. The Union's September 21 letter was received by the Company on September 22 or 23, 1966. On September 29, 1966, the Union filed a representa- tion petition in Case 16-RC-4459. The Respondent replied to the Union's letter of September 21 by letter dated October 7, 1966, in which it advised that its preliminary investigation disclosed that the Union "did not appear to represent an uncoerced majority of employees in an appropriate unit" and that it therefore declined recognition. The letter also referred to the fact that the Union had filed a representation petition. It is undisputed that 163 employees in the ap- propriate unit were employed on September 23 (the date of the Union's request) and that the same number of employees were so employed on Oc- tober 7 (the date of Respondent's refusal). It is therefore apparent that the Union must have 82 validly designated cards to hold a majority status. The cards distributed by the Union and signed by the employees were in the form of applications for membership and stated on their face as follows: Application for Membership in the Amalgamated Clothing Workers of America, AFL-CIO 2914 Rosedale JE.-53821 Fort Worth, Texas. I, the undersigned, hereby apply for member- ship in the Amalgamated Clothing Workers of America, and do hereby appoint and authorize the officers thereof, to represent and negotiate for me in all matters pertaining to wages, hours and other conditions of employment. Name ( Please sign): Address: Telephone Number: Date: Company: Department: Operation: The Respondent attacks the Union's claimed majority status on two grounds. The first may be disposed of at this point. Thus, relying upon the Decision of the United States Court of Appeals, Fifth Circuit, in Engineers & Fabricators, Inc. v. N.L.R.B., 376 F.2d 482 (C.A. 5), the Respondent contends that the burden is upon the General Counsel to delve into the employees "subjective in- tent" at the time they signed the cards.' However, the Board long has required its Trial Examiners to follow established Board precedent, notwithstand- ing decisions of United States Court of Appeals to the contrary, unless and until the Board reverses it- self to conform to any particular court decision. As of the writing of this Decision , the Board has not followed the Fifth Circuit's Engineers & Fabricatiors decision, and rather has upheld its ' The said unit was found to be appropriate by the Regional Director in his Decision and Direction of Election in Case 16-RC-4459 I find this unit to be appropriate for the purposes of collective bargaining 'Cf N L R B v S E Nichols Company, 380F2d438(CA 2) 354-126 O-LT - 73 - pt. 1 - 48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD view, as stated in Joy Silk Mills, Inc. v. N.L.R.B.4 that "an employee's thoughts (or afterthoughts) as to why he signed a union card, and what he thought that card meant, cannot negative the overt action of having signed a card designating a union as bar- gaining agent."5 Accordingly, and in view of cur- rent Board policy, I am bound to reject Respon- dent's contention as aforesaid.' Respondent's second contention is one which basically requires an evidentiary resolution. Thus, while not disputing the authenticity of the em- ployees' signatures on the cards, Respondent con- tends that cards of a sufficient number to negate a majority of 82 are not valid and may not be counted because they were obtained under the al- leged misrepresentation that they would be used only for the purpose of obtaining a Board election.' The merits of this contention will be considered below. Preliminarily, it may be noted that the General Counsel introduced in evidence a total of 101 cards.' Of these 76 employees were called as wit- nesses and testified concerning their signing of cards. The remaining 25 employees ' signatures were attested to by two union representatives or by other employees. As previously indicated, the Respondent does not contest the authenticity of the signatures.9 Having carefully considered the testimony con- cerning the circumstances under which the below- named employees signed cards, I find there is no evidence to reflect that the union agents or em- ployee union adherents who solicited these em- ployees to sign made any misleading or fraudulent statement to them in order to obtain their signa- ture. Moreover, the Respondent in its brief does not contend that any of these employees were told that the only purpose of signing a card was to ob- tain an election. This also is in conformity with my examination of the evidence. Accordingly, I find each of the following cards to constitute valid designations toward counting the Union's majority: Naomi Thompson Elizabeth Rinehart Sara Lee Voos Jewel Fay Ingram Josephine Martin Lula Casey Grace Ann Watson Rosie L. Hubbard Jewell Bell Jordon Jean Norrell Linda Sue Hearon Marie Huddle Marion Zinn Evelyn Mitchum Ruth Nick Gladys Muster Ann Roberts Edith Magee Francis Beasely Nora Mae Reeves Jetti West Bobbye Thompson Ann Smith Guinise Smith Norma Snyder Sherry Elaine Stone Edna Irene Tucker Glida May Rains Shirley Adams Joyce Love Estell Williams Benny Casey Emile Pierson Jo Ann Hart Luther Williams Bobby Thompson Sylvia Geer Coreda Maye Black Deverne Sharp Betty Jean Warren Shirley Ashcraft Betty Hart Dellene Shirley Mary (Codell) Walker Avis Oldham Barbara Casey Betty L. Scruggs Brenda Dian Dorton Lun Verl Troupe. Gertrude Stapler Wanda Craft Ruby Crawford Regine Kennedy Wernda Waters Dixie Malden Gay Pritts Lydia Mae Kennedy Lena Harris Chris Fulford Lois Thedford Mary Gossett Billie May Hughs Brenda Haywood Jean Jones Gertie Thames Haskell Brown Lora Fay Murray Janette Dollie Griffith Zenora Hambrick 4 185 F 2d 732.743 ' Accord N L R B v Sion Manufacturing Co . 217 F 2d 900, 902 (C A 2). cert denied 348 U S 964, Colson Corporation v N L R B, 347 F 2d 128, 135 (C A 8), cert denied 382 U S 904, N L R B v Winn-Dixie Stores, Inc , 341 F 2d 750, 755 (C A 6), cert denied 382 U S 830, N L R B v Hyde's SupennarAet 339 F 2d 568, 570 (C A 9), Consolidated Machine Tool Corp, 67 NLRB 737, 739, enfd 163 F 2d 376, 378 (C A 2), cert dented 332 U S 824 b At the hearing , and in accordance with the above Board policy, I sustained the General Counsel's objection to Respondent 's attempt to ex- amine the employee witnesses concerning their subjective intent when they signed the cards ' The Respondent 's legal premise is correct , for the Board has held that notwithstanding the language on a card, the card will not be construed as a valid designation of a bargaining representative where union solicitors I turn now to a discussion of the testimony con- cerning the statements, if any, which were made by the card solicitors to the employees who indispu- tedly signed the cards set forth below. Apparently based upon its interpretation of the evidence, it is asserted by the Respondent in its brief that "the fol- lowing named persons are those who said they signed cards only to get an election." My findings as to the validity of each card is reflected in the discussion which follows: Judy Usury was given a card by Bobby Saxon, a fellow employee. Usury said that Saxon told her that "the Union would be for our benefit and that we would probably get higher wages and more va- cation." She said that she thereupon read the card, filled it out in its entirety, and gave it back to Sax- represent that despite the language the only purpose of the card is to obtain an election Cumberland Shoe Corporation, 144 NLRB 1268, enfd 351 F 2d 917 (C A 6), Peterson Brothers, Inc 144 NLRB 679, The Shelby Manufacturing Co , 155 NLRB 464 , Hathorne Aviation, 161 NLRB 1326 " There are two cards in the exhibit file, each identified as G C Exh 24 These cards bear the signatures of Donna McKamy and Lora Fay Murray The card of Donna Mae McKamy apparently was placed in the exhibit file and marked as G C Exh 24 in error There being no testimony concerning McKamy, her card is hereby stricken and will not be considered Murray's card however is correctly identified as the aforenamed exhibit It is not necessary for each employee who signed a card personally to authenticate his own signature "The law permits alternative methods of authentication " Colson Corp v N L R B , 347 F 2d 128, 134 (C A 8), and cases cited therein LEVI STRAUSS & CO. 739 on. Since Usury's own testimony reveals that no misrepresentation was made to her by Saxon, I find Usury's card to constitute a valid designation.10 Linda Thomas testified that she was given a card by employee Maye Black, who at the time told her "the benefits of the Union and what they would do for us." Thomas testified that she read the card and signed it . Although Thomas also testified that she "understood that there would be an election," this testimony, which came into the record without ob- jection, does not reflect that any overt misrepresen- tation was made to this employee before she signed the card. Accordingly, I find her card to be a valid union designation. Doris Sustaire was given a card by employee Lula Casey. When queried as to what was said to her by Casey before she signed the card, Sustaire testified, "She said to get a union . That's all she said." Sustaire testified that she took the card home, read it, signed it, and returned it to Casey. Although Sustaire also testified that "She said when she gave me the card, this was to get a union , and I thought that was so that we could get an election because they had to get an election first," I find there is no evidence of any misrepresentation having been made to Sustaire. Her card, therefore, shall be counted as valid. Melba Welch was given a card by Dellene Shir- ley. Welch testified that "She (Shirley) told me it was an application for membership in the Union and she said that if we got enough of these cards signed there would be an election." Welch testified that Shirley also told her that "if the Union went in our [work] quota would probably be lower." Welch testified that she took the card home, read it, signed it, and returned it to Shirley the next morn- ing. I find nothing in the foregoing quoted state- ments that can reasonably be interpreted as an as- surance that the cards would be used only for an election, and not for any other purpose, nor is there anything in such statements to indicate that this employee was told anything which conflicted with the language of the card itself. Accordingly, I find Welch's card to constitute a valid union designa- tion." Alice F. Kelly was given a card by employee Del- lene Shirley. It was Kelly's testimony that at the time, "She (Shirley) asked me if I would like to have a union there to help the wage and working conditions." Kelly later testified that Shirley also stated that "they were trying to get enough people for the Union in order that we could have an elec- tion." She then further recalled that Shirley said that the Union would represent her at the plant. Kelly said that she took the card from Shirley, kept it for about a week, read the card, and filled it out in its entirety. There is no evidence that Kelly was advised by anyone that the card would be used only for the purpose of obtaining an election. I find her card to be valid. Doyce Elaine Harris was given a card by em- ployee Maye Black. According to Harris, "She (Black) told me that the card was for the girls to sign in order that we might see how many girls wanted to have an election. She also told me this card was not a membership card. She said we would sign a membership card after the Union was voted in. She told me that it was to-she asked me if I would like to have higher wages and more money. I told her yes." In view of the Board deci- sions in footnote 11 wherein the Board has held similar statements to employees not to constitute misrepresentation, I find that the card signed by Doyce Elaine Harris constitutes a valid union designation. Juanita Huff was given a card by Dellene Shirley. According to Huff, Shirley advised her that "they wanted us to sign a card where they could have an election to see if we could get the Union in ... I be- lieve something was said that if the Union got in, or something, the Company would have to pay the in- surance, or something, but I don't know for sure . . .. She said the more cards we got, the sooner they could have the election." Huff said that Shirley also told her that the Union would help the workers and help the employees' wages. She testified that Shir- ley said so much that she could not recall everything that was said. In view of the cases cited in footnote 11, 1 find Huff's card to be a valid designation. 12 Peggy Lambert who was given a card by her sister, Freeda Dintelman, testified that Dintelman told her that the card was "for the Union to represent me." Lambert said she read the card be- fore she signed it. On cross-examination Lambert testified that something about an election "could have been mentioned" at the time she signed the card. She also gave ambiguous testimony that she was told "it was to see if there would be an elec- tion, but I don't know if there would be an elec- tion." She also voiced her present conclusion that "Well, I thought there would be an election." I think it clear that Dintelman did not misrepresent the purpose of the card or the language stated thereon, and find that Lambert's card is a valid union designation. Ann Brown signed two union cards, one of which was given to her by employee Gladys Muster and 1O In part of an answer to one question , Usury voluntarily testified that "I understood that the card didn 't mean that we had to join the Union " How- ever, whatever Usury's recollection at the hearing , it remains that there is no evidence to reflect that she was induced to sign the card because of any misrepresentation made to her by a union agent or an employee solicitor " The Board has found statements of a similar nature not to constitute misrepresentation Kawneer Company, a Division of American Metal Climax, Inc, 164 NLRB 983 See also N L R B v Cumberland Slur Cor- poration , 351 F 2d 917 (C A 6), Bernard Happach v NLRB , 353 F 2d 629 (C A 7), N L R B v Gotham Shoe Manufacturing Co , Inc , 359 F 2d 684 (C A 2), The Shelby Manufacturing Company, 155 NLRB 464, Ham- burg Shirt Corporation, 156 NLRB 511, Davco Corporation, 157 NLRB 1459, and Lake Butler Apparel Company, 158 NLRB 863 11 Huff testified , " I read the card, I believe " 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the other by Dellene Shirley. Brown testified that she could not recollect what either of these em- ployees told her at the time she signed the cards.13 In somewhat confusing testimony on cross-ex- amination, Brown testified that "from what every- one had said to me concerning this, I was under the impression a certain percentage of employees had to sign cards in order to get an election." In the absence of any probative evidence that the em- ployee solicitors misrepresented the nature of the card, I find the card of Ann Brown to constitute a valid union designation. Wanda Welch testified that a card was given to her by an employee solicitor, but that she did not recall the identity of this employee. Welch testified "Well, they asked me to join the Union. I said that I would sign the card for the application to join the Union." She said that she read the card before she signed it. On cross-examination Welch testified that at the time or after she signed the card there was some talk among a group of girls that a purpose of signing the card was to get an election. She could not recall whether the girls stated that the card was to be used only for the purpose of getting an elec- tion. I find Welch's card to be a valid union designation. Bobby Saxon, who was given a card by employee Joan Lowery, testified that "She (Lowery) told me that it was for membership of the Union, to help get an election." I find Lowery's card to be a valid union designation. Lola Walker; Employee Avis Oldham testified that during a lunch break period she placed a blank card in a dress pattern and handed it to employee Thelma Culpepper. She asked Culpepper to pass the pattern with the card to Walker. It is un- disputed that she did so. Walker testified that upon receiving the card in the dress pattern she took it home, read it, and signed it. Although on cross-ex- amination Walker testified that she "understood" that the card was for an election, there is no evidence whatsoever that any union agent or em- ployee misrepresented the purpose of the card or advised her that the card was for an election only. I find Walker's card to be a valid union designation. Jean Hornbuckle, who was given a card by em- ployee Lula Casey, testified that Casey told her "They were trying to get a union and said they needed a majority number of the cards signed in order to have an election in the Company." Horn- buckle did not testify that Casey told her that the only purpose of the card was to get an election. On the basis of the cases cited in footnote 11, I would find Hornbuckle's card to be valid on the basis of her own testimony. Additionally, however, em- ployee Lula Casey testified that Hornbuckle worked near her and that at the time she handed Hornbuckle the card she -told this employee that "We were trying to organize a union and that I would like her to maybe take one of the member- ship cards and read it and if she saw fit, I would like for her to sign it." According to Casey, Hornbuckle replied that her husband worked in the office of another plant and that he was against unions. Con- tinuing, Casey stated that Hornbuckle thereupon stated "I am going to sign a union card because he doesn't know what we are going through. I feel like it would help us." As indicated hereinafter, Casey impressed me as an honest and forthright witness. I have no hesitancy in crediting her testimony, in- cluding the foregoing narration of her conversation with Hornbuckle at the time she gave Hornbuckle the card. I find Hornbuckle's card to constitute a valid union designation. Ruth Layne was given a card by employee Avis Oldham. Lane testified "She (Oldham) said would I sign a card and that they were trying to get a lot of them to sign. That that didn't mean that we were joining the union, that we had our choice when the election came up." She also testified that Oldham told her the employees would have better working conditions if the Union came in. She testified that she read the card "thoroughly" and signed it. With respect to the solicitation of Layne to sign a card, Oldham credibly testified "We had really been talk- ing to her for several months and she at this time had just made up her mind that she wanted to sign the application card and she came down and sat down at the table where I was and told me she was ready to sign it." Layne did not testify that she was ever told that the cards were to be used only for the purpose of getting an election. I find Layne's card to be a valid union designation. Shirrell Taylor testified that she signed a card after having been approached at her home by union representatives Azlee Taylor and Lee Metker. Shir- rell testified that Azlee told her "that they were try- ing to get a union in and they needed so many cards to be signed and that they needed a certain per- centage of them before they could have an elec- tion." She said she told Azlee that she did not care much for the Union. However, according to her testimony, Azlee then stated that the Union would get the employees better working conditions and better pay. Continuing Shirrell testified that Azlee asked her if she wished to be "for" the Union and that she finally replied that she would because her husband was union and that her husband "would like her" to be for the Union. She testified that she read the card "hastily" and then signed it. Shirrell Taylor's own testimony does not reflect that she was told by the union representatives that the pur- pose of the card was solely to obtain an election. I find her card to be a valid union designation. Sarah Casey testified that she signed a card given to her by Barbara Casey, a relative, at a restaurant. Sarah did not testify concerning any conversation she had with Barbara at the time. Barbara credibly "She signed the second card after a brief absence from work She did re- call that Dellene told her that "I needed to sign another union card." LEVI STRAUSS & CO. 741 testified that she asked Sarah if she wanted to sign a card and that she did so. According to Barbara "I really' didn't say anything because she knew what the card was for." Sarah further testified that on some occasion prior to her signing a card she spoke to union representative Metker. Although she said that she could not recall exactly what Metker stated with respect to the effect of signing a card, she testified that to the best of her recollection he stated that "he had got several to join the Union, but that we had to have so many, or a majority, or something like that before we could have an elec- tion ... or before the Union would represent us." (Emphasis supplied.) There is nothing in the evidence to reflect that Sarah Casey was told that the card was to be used for the sole purpose of ob- taining an election. I find the card of Sarah Casey to constitute a valid union designation. Gaylord Williams, who was given a card by union representative Azlee Taylor when she visited him at his home during his dinner hour, testified that Taylor told him "if I would sign it (a card) so we could get enough for an election down there." Wil- liams' own testimony does not reflect that Taylor advised him that the card was for an election only. However, Taylor credibly testified that when she first brought up the subject of the Union at the time of her visit to Williams' home, Williams stated that he had previously been a union member and that he stated "you don't have to talk to me about the Union. I know what it is. I have been a member of it." Taylor said that she then asked if he was in- terested in signing a card and becoming a member of the Charging Union, to which Williams replied affirmatively. At this point, she said, she handed him a card and he filled it out while he was eating dinner. I find Williams' card to constitute a valid union designation.14 Freeda Mae Dintleman was given a card by em- ployee Lew Verl Troupe. Dintleman testified that Troupe told her that the card was "a card to represent the Union " Dintleman further testified, somewhat vaguely, that Troupe also said something about better working conditions and higher wages. There is no testimony in the record to reflect that Dintleman was ever told that the card was to be used only for the purpose of obtaining an election. I find Dintleman's card to be a valid union designa- tion.15 At the outset of the above discussion I have listed the names of 69 employees whom I have found to have signed valid union designation cards. Adding to these the valid cards of the 18 employees whose cases have been considered individually, above, I find that the Union was designated by a majority of the employees in the appropriate unit (87 of 163) at all times material herein.'6 C. The Discriminatory Discharge of Lula B. Casey Lula Casey, a production machine operator, began her employment on January 6, 1966. After an absence of approximately 3 weeks due to a per- sonal injury, she was notified that she was discharged when she appeared at the plant to vote in the Board-conducted representation election on January 6, 1967. Casey was elected to the position of chairlady of the Union at the first union meeting which was held on April 4, 1966. Plant Manager Rutter conceded that in the summer of 1966 he became aware that Casey was active in the Union and that she had been made the union chairlady. On November 11, 1966, the Union sent a telegram to Rutter advising that Casey and 17 other employees were members of the Union's organizing committee. Casey credibly testified that on December 6, 1966, Rutter came up to her machine and remarked that the election had been set for January 6. Casey testified that he thereupon said, "Well, Lula, I had been wanting to ask you why you were so wrapped up in the Union, chairlady and everything." After she gave some reasons for being an advocate of the Union, Rutter asked if she "knew about the strikes and everything." Casey merely responded that she was 100 percent for the Union. Rutter thereupon terminated the conversation with the statement that "We both have a job to do."" The facts surrounding Casey's discharge are not in material dispute and are set forth as follows: On December 15, 1966, Casey received an injury to her back in an automobile accident while on her way to work. Without at first being aware of the seriousness of the injury, Casey proceeded to the plant and started to work. During the morning she reported the accident to various supervisors, in- cluding Plant Manager James Rutter. When near the end of the day the nature of the injury became apparent, she reported this fact to Rutter and his assistant, Frank Milstead. With their acquiescence she left the plant and went home. She did not return to work the following day, a Friday. On Monday, December 19, she consulted a doctor who immediately sent her to a hospital. On December " Williams did not impress me as a forthright and honest witness and I credit the testimony of Taylor over that of Williams Although Williams testified that he only signed his name to the card , claiming that the other handwriting notations were on the card before he signed it, I credit the testimony of Taylor that in her presence he filled out the card in its en- tirety " Dintleman testified that she also gave a card to her sister . Peggy Lam- bert. and told her that "it was a card to represent the Union for better working conditions - Lambert took the card but did not return it to her " I therefore find it unnecessary to pass upon the validity of additional cards which were received in evidence and concerning which there is testimony " Rutter conceded having a conversation with Casey, much as Casey had testified, although Casey's version was more detailed Insofar as their ver- sions differ, I believe Casey had a better recollection and I credit her testimony The Respondent is not charged with my Section 8(a)( I ) allega- tion in connection with this incident 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 20 she called the plant and spoke to Christine Weigman, her supervisor, and apprised her that she was in the hospital. Weigman expressed her sym- pathy and stated that she would visit Casey in the hospital. She subsequently did so. Casey was discharged from the hospital on December 28. Upon returning to her home the same day she called the plant and spoke to Supervisor Weig- man.t" Casey advised Weigman that she had returned home, but that she had not received a release from her doctor and that she did not know when she would be able to report back to work. According to the credited and uncontroverted testimony of Casey, Weigman advised her to "take care of herself ... to do what the doctor said because he knew best." Weigman further stated that she would look forward to Casey's returning to work. Casey next saw her doctor on January 4, 1967. She was advised at that time that her condi- tion had improved but that she still could not be released for work. Casey came to the plant in the afternoon of January 6, 1967, to vote in the representation elec- tion. (The hours of the election were from 3 p.m. to 4:30 p.m.) While standing in the voting line she was approached by the company observer, employee Louise Stapler. Stapler told Casey that she had been instructed by the Company to challenge her (Casey's) because she had not called in or obtained a leave of absence.19 The Board agent conducting the election thereupon told Casey to get out of line, whereupon he had her step aside and follow the procedure of voting by challenged ballot. When this was finished Casey went to the office upstairs where she met Rutter, Plant Supervisor Pearl Car- penter, and Respondent's attorney, John Cosmic. Casey began by inquiring both as to her employ- ment status and the basis for the challenge to her ballot. According to the credited testimony of Casey, Rutter responded with the statement that she had not requested a leave of absence or had not called in during the period of her incapacity. To this Casey replied, "Mr. Rutter, I called in three times." Rutter thereupon responded, "Well, you didn't get a leave of absence." At this point Cosmic spoke up and asked Rutter whether he treated other employees in the same manner. Rutter responded that he did. Cosmic stated, "Okay, then." Casey then asked if all this meant that she was fired. Rutter stated that she was. According to Casey, Rutter (and apparently Cosmic also) then left the room. However, a conversation continued between Casey and Carpenter. Carpenter asked Casey if she had read the "House Rules." This is a 14-page document of company rules and regula- tions which is furnished to all employees when hired. When Casey said that she had, a discussion ensued concerning the interpretation of the rule pertaining to leave of absences.20 Casey testified that she then explained to Carpenter, "The way I understood it was that you had to have surgery be- fore you got a leave of absence. I didn't know when I went to the hospital that I was going to stay in the hospital when I went." After some response from Carpenter to the effect that she should have read the rules and understood them, Casey said, "If that's the way you want it, all right," and she thereupon left the plant. Turning now to Respondent's explanation for Casey's discharge, Rutter testified that shortly after December 28 he ascertained that Casey had been discharged from the hospital on the latter date. Continuing with Rutter's testimony, he said that on January 3 he walked through the office and inquired of three office employees if "anyone heard from Lula Casey." According to Rutter one of the office employees (he could not recall or identify which one) stated that Casey had not been heard from. He thereupon asked one of the employees for a payroll change notice, and, as he testified, "I filled out the discharge." The separation notice, which was introduced in evidence, reflects that Casey's name was removed from the payroll as of January 3, 1967. Under the heading remarks, Rutter entered the notation: "Failed to abide by Company rules by not calling in upon discharge from hospital." Casey was not, however, notified of her termination until she appeared at the plant to vote on January 6. Rutter admitted at the hearing that after January 6 he ascertained that Casey had called the plant after being released from the hospital and that in fact she had complied with all company rules govern- ing employee absence due to injury or illness. Nonetheless, even though Casey was in no way at fault, Rutter further conceded that he took no steps to inform Casey that her discharge was rescinded.21 Clearly, these admissions by Rutter, coupled with other antiunion conduct which will be considered later in this Decision, are in themselves distinctly manifest of discrimination against this employee- union chairlady. But the evidence pointing toward such discrimination becomes all the more apparent upon further examination of Rutter's testimony. i" Although Casey testified that at this time she spoke to Pearl Carpenter, the plant supervisor , I think she was mistaken in this testimony and that she in fact spoke to Weigman As noted hereinafter, Rutter testified that he subsequently learned that Casey had called Weigman after returning from the hospital In any event, the important fact is that Casey did report her return from the hospital to a company supervisor Whether she spoke to Weigman or Carpenter would not affect my ultimate determination herein. '" Rutter conceded that he instructed the company observer to challenge Casey's ballot "as being no longer employed by Levi Strauss " "'The rule pertaining to leave of absence, so far as is pertinent here, states "An employee who needs to have an operation must request a leave of absence from the plant manager before entering the hospital In case of emergency , you, or a member of your family should contact the plant manager as soon as possible " d1 As indicated hereinafter , Casey finally was rehired after making several trips to the plant The fact remains that Rutter did not take the ini- tiative of contacting this employee and rehinng her, or of advising her of his alleged mistake in causing her to be discharged LEVI STRAUSS & CO. 743 First, concerning his conversation with Casey when she was advised of her discharge on January 6, Rutter gave the following testimony when first called as an adverse witness by the General Counsel under Rule 43(b): January the 6th came up and Lula came up and said, "Mr. Rutter, I understand that my vote has been challenged because I am fired?" And I said, "Yes, that's right, Lula. You didn't call in." She said, "Well, I didn't know that I had to call in. I said, "Well, did you read your rules and regulations book?" And she said, "No, but I had better go home and do it." I said, "Well, that is what it says, Lula." I said, "However, when will you be able to come back to work?" She said, "I don't know. I will keep in touch with you." I said, "Fine, Lula. I don't have a thing against you." In connection with the point to be made here, it is noteworthy that in the above version of this con- versation Rutter asserted that when he accused Casey of not calling in , Casey's only reply was that she did not know she was supposed to call in. From this testimony, I was left with the distinct impres- sion that it was Rutter's assertion that Casey thereby admitted not calling in and not being familiar with the company rules. All this changed, however, when Rutter was called later as a Respon- dent witness and at this point testified that during the conversation Casey in fact stated that she had called in on several occasions. In short, I can but regard Rutter's testimony when first called not only as misleading, but also inconsistent with the testimony which he gave when later called by the Respondent. Moreover, in view of Rutter's belated concession that in this conversation Casey claimed that she had called in, it is illogical that she would have made the statement, as he asserted on direct, that "Well, I didn't know I had to call in." Casey's testimony is clear that she made no such statement and I do not credit Rutter's testimony that any such statement was made. Secondly, although Rutter admitted at the hear- ing that the company rule pertaining to leaves of absence did not apply to Casey's case and that therefore it was not necessary for her to obtain a leave while absent during the period in question, it is of no little significance that during his conversa- tion with Casey on January 6 he advised Casey that her failure to obtain a leave of absence was a reason for her discharge.22 Mention of this reason to Casey is obviously inconsistent with Rutter's testimony at the hearing. It is too well settled to require the recitation of authority that such incon- sistency or shift in position as to the reason for a discharge is compelling evidence that the action taken was discriminatorily motivated, not for cause. Finally, further evidence tending to expose Respondent's motive in discharging Casey is the very precipitous manner in which the discharge of this employee was effected. As heretofore in- dicated, Rutter testified that on January 3 he inquired if Casey had called in and was told by an unidentified office employee that there was no record to show that she Q. Without further in- quiry or investigation Rutter thereupon made out a termination slip. He did not, however, take steps to advise Casey of this action. It was not until Casey appeared to vote 3 days later that he challenged her vote and then advised her of her discharge. From all this it seems quite obvious to me that Rutter seized upon what he thought was an excuse to discharge this employee. I am convinced that he would not have taken such precipitous action but for the fact that she was a leading union adherent. As Rutter admitted, after Casey's discharge on January 6, he ascertained that Casey had in fact complied with the rules by calling in and reporting to her supervisor, Christine Weigman, on the day she was discharged from the hospital. In conceding that Casey complied with the rules, it follows that Weigman was authorized to take such calls; indeed, it is reasonable to assume that Weigman would be the most logical person whom Casey might be ex- pected to contact from outside the plant. I think it equally reasonable to assume that Casey's super- visor would be the most logical person whom Rutter would check with, especially before taking such drastic action as the discharge of this em- ployee. I can but construe his failure to do so, in- deed his failure to conduct any real investigation of the matter prior to her discharge, as further persua- sive evidence that the discharge was not for cause. Moreover, assuming arguendo that Casey's discharge was predicated on an honest mistake, the record is clear that Respondent did nothing to rectify any such mistake.23 Nor has Respondent of- fered any explanation for its failure to do so. For all the reasons stated above, and when viewed in the context of Respondent's hostility to union representation which is discussed in the suc- ceeding section, I find that Respondent's discharge td 1 credit the testimony of Casey that on January 6 Rutter told her that she breached two company rules, one pertaining to a failure to call in and the second pertaining to a failure to obtain a leave of absence Although Rutter's version of the conversation alluded only to his mention of a failure to call in, he did not deny Casey's previous testimony that he also alluded to her failure to obtain a leave of absence Moreqver, consistent with Casey's testimony that this subject was so discussed with Rutter was her further un- controverted testimony that the discussion relative to her not obtaining a leave of absence continued in the conversation which she held with Plant Supervisor Pearl Carpenter after Rutter left the room a When called as a witness by Respondent, Rutter testified that he ter- minated his conversation with Casey on January 6 by telling Casey to come back and see him after she received a discharge from her doctor Assuming this to be so, this statement obviously did not rescind the discharge But more important , it is undisputed that Casey telephoned Rutter on January I I to see about getting her job back Significantly, although Rutter at this time had ascertained that Casey had not breached the rule for which she al- legedly was discharged , he nonetheless on this occasion told Casey that she would be rehired, but ae a new employee 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Lula B. Casey on the day of the election was a clear violation of Section 8(a)(3) and (1) of the Act.24 D. Evidence Reflecting Respondent's Opposition to the Union, Independent Violations of Section 8(a)(1) Under this heading, and in chronological order, I consider below the evidence bearing upon Respon- dent's hostility to the unionization of its employees as well as various conduct alleged by the General Counsel to have been engaged in by the Respon- dent in violation of Section 8(a)(1) of the Act. 1. Early manifestation of Respondent's hostility to the Union Employee Mary Wilshire was employed with the Company from March 1, 1966, to July 21, 1966. She was discharged on the latter date for refusing to work on Saturdays. Wilshire testified that beginning after the third week of her employment and continuing to approximately until 2 weeks be- fore her discharge she was frequently approached by Rutter who engaged her in conversations con- cerning the organizational activity which was taking place among the employees. Although Rutter's con- duct in this regard occurred outside the 6-month limitation period set out in Section 10(b) of the Act, I permitted introduction of Wilshire's testimony solely for the purpose of demonstrating Respondent's hostility, if any, toward the Union and the organizing activity, and I have considered it.25 The unrefuted and credited testimony of Wilshire reflects that Rutter came up to her in late March 1966 and asked, in effect, "What is this union busi- ness going on up here?" When Wilshire asked what he meant, Rutter stated that he wanted to know about the Union starting and which of the em- ployees were passing out cards. Wilshire replied that she did not know who was distributing cards. Rutter thereupon asked if employee Dellene Shirley was passing out cards, pointing out that she worked nearby. When Wilshire again said that she did not know, Rutter asked if she (Wilshire) had signed a card. Wilshire responded that whether she had or not, that was her business. Rutter thereupon stated, "Well, you don't need to sign a card. We don't need a union up here." Wilshire testified, again without contradiction, that on another occasion Rutter came up to her and asked if employees Lula Casey, Dellene Shirley, and Shirley Ashcraft were passing out cards or if any of them had been elected president of the Union. Also during the period indicated it was Wilshire's undenied testimony that on a number of occasions Rutter asked her if she had attended various of the union meetings . Recalling one such occasion in par- ticular, Wilshire testified that Rutter broached her with the statement, "They are going to have a union meeting down at the Labor Temple on West Irvin. I would like for you to go and tell me what is going on." Wilshire said that she told Rutter she would do so, but that she did not attend the meeting. 2. The overtime wage increase of October 1, 1966 The Union filed a representation petition (Case 16-RC-4459) on September 29, 1966. Two days later, on October 1, the Respondent posted the fol- lowing notice which announced and granted the in- crease in overtime pay reflected therein: 10/1/66 TO ALL EMPLOYEES Since August 22, 1966, our policy has been to pay overtime pay for hours worked in excess of eight (8) hours a day. We are happy to correct our mistake and we appreciate it being called to our attention. We are reviewing the payroll records since August 22, 1966 and will make sure you are paid for any overtime work performed. If you have not been paid for any of this time, an adjustment will be made as soon as possible. If you have any question, please let me know. /s/ J. E. RUTTER Plant Manager Respondent's explanation for granting the above increase in overtime pay was testified to by Roland Selin , hired by the Company as its first industrial relations manager on May 1, 1966.26 Selin testified that in late May or early June he held a meeting with various company officials in which it was de- cided that various fringe benefits, including over- time pay and an insurance program, should be made uniform in all of the Company's plants. How- ever, it was decided to withhold effecting any such change until it completed arrangements for the in- auguration of an Aetna Insurance program, which required that a minimum of 5,000 employees be covered under the program. On August 19, 1966, Respondent sent a letter under the signature of Paul Glasgow , its national operations manager, to each of its four nonunion plants, these consisting of the Tyler plant ; San An- gelo, Texas, plant; Blackston, Virginia, plant, and Warsaw, Virginia, plant; in which it instructed the 24 Rutter's concern over Casey's status as union chairlady was clearly manifested in his conversation with her on the subject on December 6 t' It is well settled that testimony occurring outside the Section 10(b) period may be taken and considered for the purpose indicated above Sheet Metal Workers International A%sn , AFL-CIO, v N L R B , 293 F 2d 141 (D C C A ),NLRB v American Aggregate Co, Inc, 285 F 2d 529 (C A 5),NeulioffBroi Packers, Inc , 151 NLRB 916 t" Selin said that prior to May 1, 1966, "various people in positions has assumed responsibilities of the function " Selm, since his hire , has been in charge of Respondent 's labor relations for all its plants LEVI STRAUSS & CO. plant manager of each plant to place into effect as of August 22, 1966, various increased benefits set forth therein. Selin testified that he paid his first visit to the Tyler plant on September 29, 1966.27 On this occa- sion, according to Selin, he held a discussion with Rose Freeman, the payroll clerk for the Tyler plant, concerning questions which she had on the compu- tation of pay. Continuing, Selin testified that during this conversation "she brought up this that they were not paying overtime after eight hours in a day." According to Selin, he advised the payroll clerk that she must be wrong, that overtime pay for work performed over 8 hours had been authorized in the August 19 letter to the Tyler plant manager. Selin said that they thereupon checked the August 19 letter and found that it made no reference to the matter of overtime in question. Claiming that such authorization had been omitted from the August 19 letter by mistake, Selin testified that he thereupon instructed that such overtime become effective at the Tyler plant retroactive to August 22 and that the notice, previously quoted above, be posted on the bulletin board. Further facts are here in order. As indicated above, the August 19 letter sent to Respondent's nonunion plants referred to certain benefits which were to be placed into effect. These benefits related to operator pay, health insurance, overtime pay (but of a different nature than that under discus- sion ), accident pay, and eligibility reduction for holiday pay and life and health insurance. The Au- gust 19 letters thus sent to each plant were identical form letters, differentiated only by the typed inser- tion of the respective plant manager's name and sites of the plant at the top of each letter. Deviating from the letters a moment, it is undisputed that prior to August 19, 1966, Respondent's Tyler, Tex- as, plant was the only nonunion plant which did not pay its employees overtime pay for hours worked in excess of 8 hours a day. Thus, it is apparent that if Respondent wished to advise the Tyler plant in its August 19 letter that such overtime pay was to be authorized and made effective for the Tyler plant as of August 22, 1966, it would have been necessary to place an extra paragraph to this effect in the Au- gust 19 form letter to the Tyler plant. Upon all the testimony on the subject, I find it difficult to believe, as apparently Selin asserts, that any omission in the August 19 letter to the Tyler plant, to overtime provisions particularly applicable to the Tyler plant, was but an inadvertent mistake. There are several reasons which compel me to con- clude that this was not the fact. As indicated above, Selin conceded that of all Respondent's plants the Tyler plant was unique in the respect that it was the 27 Selm said that this was not a special trip, but that he went to Tyler for his first visit there after completing contract negotiations for a plant in Amarillo, Texas °N It appears that the above provision relative to overtime , as well as cer- tain other benefits set forth in the August 19 letter, was also made effective 745 only plant which had not been authorized to pay its employees overtime after 8 hours. In view of the uniqueness of this situation, it seems indeed pecu- liar that Respondent sent out the August 19 letter without correcting this situation , as it allegedly in- tended doing at the time. Selin testified that he was responsible for the alleged oversight. Selin further testified that "These [August 19] letters went out under Paul Glasgow's signature . Normally, I would read these letters before they went out. It just hap- pened to be that I was in Georgia and I was tied up." Nonetheless, it is apparent that Selin received copies of the letters shortly after they were sent, for the letters on their face reflect that copies were sent to him. Selin also testified that he "supposed" that George Simpkins, production manager of Respondent's western plants, also received copies of the letters. I would assume that Simpkins also was aware of the situation at the Tyler plant, espe- cially so since he was present at the heretofore mentioned meeting held with Selin in late May or early June 1966. Yet, it is clear that Simpkins also did not catch the alleged error in the letters to the Tyler plant. But even more peculiar is the fact that some responsible official of the Respondent in fact did examine the August 19 letter closely enough to send a second letter under the date of August 22, 1966, to each of the nonunion plants, this for the specific purpose of making a correction of a dif- ferent provision concerning overtime pay which was included in the August 19 letter. Thus, the Au- gust 19 letter stated, inter alia, "Effective im- mediately, all work performed on the sixth day will be paid for at one and one-half times the em- ployee's regular or quarterly average; and on the seventh day will be paid for at double time." The August 22 letter changed this to read: "Effective immediately, all work performed on the sixth day will be paid for at one and one-half times the em- ployee's regular hourly rate of the previous weeks earnings, and on the seventh day work will be paid for at double time."" Having thus "double checked" the August 19 letter, and by making the above correction a few days later, is a further reason for casting doubt upon Selin's testimony that any failure of Respondent's August 19 letter to in- clude notification to the Tyler plant concerning overtime pay for over 8 hours was but an oversight. I further view with suspicion Selin's testimony with reference to the manner in which he allegedly first ascertained that overtime for over 8 hours' work was not being paid at the Tyler plant. Thus, as noted heretofore, Selin testified that during a discussion with the Tyler payroll clerk on Sep- tember 29 or 30 the payroll clerk brought up the at the Tyler plant on August 22, 1966. 1 have not considered these matters further since there is no allegation that Respondent violated Section 8(a)( I) of the Act by conferring these additional benefits upon the Tyler plant employees during the period in question 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that the Tyler plant was not paying overtime for work after 8 hours. Since the Tyler plant had no policy in the past for paying any such overtime, I think it rather curious that a payroll clerk would be the one to bring the matter up out of the clear blue sky, so to speak.29 Finally, Selin conceded that even at the time of the heretofore mentioned meeting in late May or early June, the Tyler plant was the only nonunion plant which was not then paying overtime for over 8 hours' work. Although it was at this meeting that Respondent decided to establish a uniform policy with respect to the payment of overtime at all of its plants, Selin 's explanation for withholding the an- nouncement to put the Tyler plant on par with the other plants in this respect was that he wished to wait until the insurance program had been imple- mented and that "I didn't want to put these benefits in piece-meal." While Respondent may have had legitimate reasons for announcing its insurance pro- gram and various other benefits at one time, I simply cannot credit Selin's testimony that this was also the basis for not equalizing the overtime pay of the Tyler plant with its other plants at the time of its decision to do so at the May or June meeting. Selin offered no logical or persuasive reason why the Company deferred effecting this equalization step until after the Union had filed its petition for an election on September 29, 1966. For this and the other reasons reflected above, I am convinced and find that the circumstances in this case establish that Respondent's announcement and granting of new overtime benefits to the Tyler em- ployees within 2 days after the filing of the petition were for the purpose of counteracting the Union's organizing campaign. Under well-established law, I find that by such conduct the Respondent violated Section 8(a)(1) of the Act. Exchange Parts Co., 375 U.S. 405; The Great Atlantic & Pacific Tea Company, Inc., 162 NLRB 1182; T. L. Lay Packing Co., 152 NLRB 342. Indeed, not only was the in- crease granted after the filing of the petition, but the timing of the increase came not long after the Union, on September 2, 1966, requested recogni- tion on the asserted basis and offered to prove that it represented a majority of Respondent's em- ployees in the appropriate unit. In finding that an employer violated the Act by granting a wage in- crease under circumstances similar to that in the in- stant case, the United States Court of Appeals for the Tenth Circuit particularly pointed out that the employer there violated the Act by waiting ".. . until the organizational effort was under way and then, while in a position to refrain from granting the increase, and with knowledge of the union's ac- tivity and perhaps with knowledge of the union's claim to represent a majority, the increase was made effective." See also Crown Tar and Chemical Works v. N.L.R.B., 365 F.2d 588 (C.A. 10); and see American Sanitary Products Co., d/b/a American School Supply Company, 382 F.2d 53 (C.A. 10); American Freightways Co., Inc., 124 NLRB 146; Dan Howard Mfg. Co., 158 NLRB 805. 3. The no-solicitation rule It is undisputed that during the period of the Union's organizational campaign, and up to and in- cluding the date of the election, the Respondent's handbook of "House Rules," which was given to all employees, set forth the following rule:30 SOLICITATIONS AND CONTRIBUTIONS Permission for solicitation of employees for any purpose must be obtained from your Plant Manager before any solicitation is made. Unauthorized solicitation of employees or customers on the Company property, by or in behalf of any individual club, society, religious organization, political party or other associa- tion is strictly prohibited. This applies to both employees and outsiders and covers collecting money, circulating petitions, distributing pamphlets or leaflets, posting notices and transactions other than Company business on Company property. At the hearing the Respondent in effect con- ceded that the illegality of the above rule, as I find it clearly was, in that the rule too broadly requires management permission for an employee to solicit on the Union's behalf during nonworking time anywhere on company premises.31 However, the Respondent contends that the rule was never en- forced, and further, that it rescinded the rule on February 24, 1967.32 However, and particularly since the rule was in effect during the Union's or- ganizational campaign, I believe applicable here is the following statement by the Board in Allen-Mor- rison Sign Co., Inc.:33 As to the no-solicitation rule, the Respondent admits its publication but asserts that this rule `u Rose Freeman , the payroll clerk , was not called to corroborate Selin's testimony in this regard " The parties stipulated that rule as published was incorporated in the handbook from approximately July 16, 1966, until February 24, 1967 " A rule of this nature is presumptively invalid on its face Walton Manu- facturing Company, 126 NLRB 697, enfd 289 F 2d 117 (C A 5) The Respondent has not overcome this presumption by showing that any spe- cial circumstances justified the need for the rule " Cosmic testified that he instructed Rutter to post the following notice at the Tyler plant NOTICE We have a rule regarding solicitation on page eight (8) of our House Rules, although we have never enforced this rule, and in order to clear up any misunderstanding there may have been, we are now rescinding this rule in its entirety and are substituting this new rule, which is to be effective immediately There will be no solicitation of any kind on Company tune during working hours without the express author, ation of the Plant Manager ^' 79 NLRB 904, 906 LEVI STRAUSS & CO. was never applied and that it has since been modified. However, even if we assume that the rule was not applied, its promulgation was nevertheless, violative of the Act. And it is equally clear that its subsequent modification does not have the retroactive effect of validat- ing its initial promulgation or preclude the Board from issuing an appropriate cease and desist order. Moreover, there is evidence that the Respondent, at least when it saw fit, did in fact have the intent to enforce the rules as published in its handbook of house rules. Thus, I need allude only to the occa- sion of Casey's discharge, as heretofore set forth, in which Plant Supervisor Pearl Carpenter, in charg- ing Casey with a violation of certain house rules, specifically asked Casey if she had read the rules .31 In view of all the foregoing, I find that by main- taining an illegal no-solicitation rule during the period of the Union's organizational campaign, the Respondent violated Section 8(a)(1) of the Act.35 4. Interrogation of employees Employee Ruth Nick testified without contradic- tion that around Thanksgiving 1966 she was ap- proached by her forelady, Christine Weigman, who asked what she thought about the Union. Nick said that she told Weigman she didn't feel one way or the other about it. Weigman then asked Nick if she thought the Union would do the employees any good. When Nick responded with a noncommittal answer, Weigman stated that "all they wanted to do was to take our money." Again without contradic- tion, Nick testified that Weigman spoke to her for the second time around Christmas, at which time Weigman again asked what she thought about the Union. The conversation then proceeded in much the same manner as the earlier one.ss The above testimony was adduced from Nick when she appeared as a witness for the General Counsel in the instant hearing on May 9, 1967. Nick was recalled to testify concerning a further conversation which she had with Weigman upon returning to the plant on the latter date. According to the credited and undenied testimony of Nick, " It is further noted that Rutter, in his version of his discharge conversa- tion with Casey as heretofore set forth, testified that he asked Casey if she had read the "rules and regulations book " `z It is undisputed that on October 21, 1966, Rutter made a speech to the production and maintenance employees Although the evidence reflects that a purpose of this speech was to counteract the Union, the complaint does not allege that any statement made by Rutter in this speech was viola- tive of Section 8(a)( I ) of the Act However, for the expressed purpose of showing that the no-solicitation rule was enforced, the General Counsel ad- duced testimony from three employees to the effect that during the speech, and without differentiating between working and nonworking time, Rutter threatened to discharge anyone caught passing out union cards Rutter testified that the speech was read from a prepared text, a copy of which was introduced in evidence The text does not reflect the existence of any such 747 Weigman came up to her and the following conver- sation ensued: Christine Weigman, and she asked me how it [the instant hearing] went and I said, "Just fine." And she said, "what did he-what did they say to you?" And I said, "They just asked a lot of questions." And she said, "What kind of questions?" And I said, "Oh, they asked things like who got you to sign the card and you know, stuff like that." And she said, "Well, who did get you to sign the card? Mae Black?" And I said, "Yeah, Mae Black." And she just turned around and walked off.37 Employee Francis Beasley testified to a conversa- tion which she had with Frank Milstead, the assistant plant manager , on the morning of the representation election, on January 6, 1967. This conversation occurred in the cafeteria while she was engaged in cleaning work and Milstead was having coffee. Beasley's uncontroverted testimony concerning this conversation was as follows: He said to me, "Well, this is the big day." He asked me if I thought the union would get in and I told him I didn't know. Then he said, "Are you going to vote?" And I said, "I don't know whether I will or not, because if I vote for it some of them will be mad, and if I vote against some will be mad, so I think I had better stay in the middle of the road." So he asked me if I thought it would work if it got in there, and I told him I didn't know. And he went on to tell me about the time he was work- ing at Sledge. They tried to get the union in there. They invited the union in there and it didn't work there and he didn't think it would work at this plant. In the context of Respondent's entire course of conduct, including the unfair labor practices found herein, I find that Respondent violated Section 8(a)(1) of the Act by Weigman's interrogation of Nick on January 6, 1967. Although under certain circumstances Milstead's conversation with Beasley might be regarded by me as innocuous, in the light of Respondent's other antiunion conduct, I find that Milstead's interrogation of Beasley constituted a violation of Section 8(a)(1) of the Act. I am guided in so finding by the Board's decision in Wendt-Sonis Company, 138 NLRB 855, wherein the threat as testified to by these employees In view of the finding above which sustains the complaint's allegation as to the no-solicitation rule, I find it un- necessary to decide this conflict in the testimony of the employees as con- trasted to that of Rutter ' The complaint does not allege that Respondent violated the Act by Weigman's conversation set forth above However this evidence is admissi- ble and it has been so considered as tending to reflect a further manifesta- tion of an overall antiunion course of conduct by the Respondent during the Union 's organizational campaign To this extent it is also relevant to the Section 8 ( a)(3) and (5) allegations of the complaint, particularly insofar as motivation is concerned " The General Counsel amended the complaint at the hearing to allege this conduct of Weigman to be in violation of Section 8(a)( I) of the Act 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board found a similar incident to be violative of the Act.38 5. Rutter's preelection speech It is undisputed that Rutter made a speech to all the production and maintenance employees in the day or two preceding the election of January 6, 1967. These speeches were made in shifts, with Rutter speaking to approximately four groups of employees on January 4, and to the night shift on January 5. Respondent's attorney, Cosmic, was at Rutter's side during all or most of these speeches. While there is no question but that in these speeches Rutter expressed strong opposition to the Union, the issue is whether Rutter made any state- ments of a coercive nature within the meaning of Section 8(a)(1) of the Act.31 Unlike the speech made by Rutter on October 21, Rutter did not read from a prepared text, but spoke extemporaneously with occasional reference to an outline which he had before him.40 According to the credited and undenied testimony of employee Mary Walker, Rutter began the speech (which she attended) with the statement that the Tyler plant employees did not need a union . Walker thereupon quoted Rutter as saying, "This company does not need a union. You girls are getting all of the benefits that any company could get and I can't see that the Union would help you any at all." Rutter then launched into a discus- sion concerning contract negotiations between the Union and another company located at Mineola, concerning which subject there is some dispute in the testimony.41 According to Rutter, he told the employees as follows: I brought up the fact that this same union that is trying to organize here in Tyler, is the same one that has organized the plant in Mineola, and it has been since October a year ago that they have had the election, and the union won and they still don't have a contract. How long this would take to get a contract if the union won in Tyler would be hard to say, but I was just giving them as a comparison. It's been over a year now and the people are no better off than when they first started. Concerning this aspect of the speech, employee Elizabeth Rinehart testified on cross-examination that Rutter stated, "Just because we went union, if we did, didn't mean that he had to sign a contract"; but under further cross, she testified he stated that he would have to negotiate a contract if the Union won the election. Employee Mary Walker, who was not in the same group as Rinehart when addressed by Rutter, testified that Rutter flatly stated that he would never sign a contract if the employees went union . According to employee Mollie Casey, Rutter advised her group that "They [the Mineola plant] have been union for over a year and they haven't got a contract-and if we went union he wouldn't have to give us a contract either." When Rutter was asked by his counsel if he told the employees that he would not sign a contract, Rutter responded, "No, this is completely ridiculous. I wouldn't have this authority to tell them." As indicated above, Rutter conceded telling the employees that the Mineola plant had not reached a contract in over a year and that the same situation might prevail at the Tyler plant if the Union won the election. While I am inclined to believe that Rutter did not go so far as to say that he would never sign a contract if the Union won at Tyler, the implication of his state- ment to the employees is clear that he intended to convey to them the message that they might not ever get a contract if the Union became the bar- gaining agent of the Tyler plant employees .41 The balance, and apparently the major portion, of Rutter's speech was devoted to a discussion of the Tyler benefits as contrasted to the terms and conditions of a recently negotiated contract with the Union at Respondent's plant in El Paso, Texas. Preliminarily, Rutter pointed out that there had been a 10-week strike at the El Paso plant. He re- lated that violence had occurred during the strike, advised the employees that an injunction had been obtained against the Union to prohibit further violence, and thereupon caused a copy of the court injunction to be distributed among the employees. According to Rutter's undisputed testimony, he then compared the Tyler benefits to the benefits under the El Paso contract. With reference to such matters as holidays, vacations, base pay rates, leaves of absence, reporting-in time, downtime ' At the beginning of the hearing the General Counsel amended the complaint to allege that on or about January 3 , 1967, Respondent 's attor- ney, John Cosmic, violated Section 8 ( a)(l) of the Act by threatening em- ployees that wages would be reduced if the employees selected the Union as their bargaining agent One employee testified concerning the alleged threat Cosmic testified that he had a conversation with this employee, which occurred on the floor at the plant , but denied making any threat I am reluctant to make a credibility finding involving the attorney who, with another attorney, represented the Respondent at the hearing and jointly tried the case before me In view of my ultimate disposition of this case, I find it unnecessary to do so IS The complaint alleges that in these speeches Rutter "orally threatened its employees with more stringent working conditions and with discharge in the event the union was selected by its employees to represent them for col- lective bargaining " '" The outline used by Rutter was not made available at the hearing 41 Since the testimony concerning Rutter's January 4 and 5 speeches came in on a piecemeal basis, the record does not disclose the chronologi- cal order in which Rutter spoke on the various subjects discussed herein Rutter , when called as a witness by the Respondent, was not asked to testify concerning the speeches , or any one of them , in narrative form Rather, in piecemeal fashion , he was asked by his attorney to testify as to what he said concerning various subjects, such subjects being suggested by the questions which were put to him Rutter did not differentiate as to any statements he may have made in any particular speech 42 I need not decide whether Rutter's conversations pertaining to the signing of a contract was a violation of Section 8(a)(l) of the Act, there being no such allegation in the complaint However, Rutter's statement to the employees as to the difficulty of obtaining a contract is another clear manifestation of Respondent 's extreme hostility to the Union LEVI STRAUSS & CO. 749 probationary period, and the like, he pointed out in some detail that the benefits currently being en- joyed by the Tyler employees were either equal to, or in some respects exceeded, the benefits being received by the El Paso employees under their con- tract. In addition to the foregoing, the credited and undenied testimony of employee witnesses reflects that Rutter made further assertions in his speech as to what would occur if the plant became unionized. Thus, Lew Verl Troupe testified that at one point in his speech Rutter stated that , "if the union came in the union would give us a certain length of time to make production, 60 days or 6 weeks, or something like that ... if the union came in ... if the em- ployees didn't make production that quick that the company would have to get rid of those." Similarly, employee Rinehart testified that Rutter, while discussing production rates, stated that "in union plants you just had six weeks to 60 days to make your production and then he could let you go and there was nothing the union could do about it." Further corroboration that Rutter spoke in this vein is found in the undenied testimony of Mary Walker: "Well, he [Rutter] said that if we made over our quota the union would fine us and if we didn't make our quota in a certain length of time, 60 days or six weeks, that they would have to let us go and he said some of the girls had been there a year and still didn't make production. And he said that was the way the union would work."43 I think it is clear that by the foregoing statements Rutter went beyond what might occur or could occur if the Union became the bargaining representative. I therefore find that, as a veiled threat, Rutter's unqualified statements to the employees that the Union, if selected as the bargaining agent, would cause the loss of certain benefits which they presently enjoyed (i.e., those relating to production quotas) were violative of Section 8(a)(1) of the Act. According to the credited testimony of employee Lew Verl Troupe, Rutter during his January 4 speech also told the employees that if the Union came in they would have to go through the Union if they wished to obtain a leave of absence. In this re- gard, Rutter stated that if the union representative was absent when such an occasion arose (adding that this could be a month or longer) the employees would have to wait until he returned until they could request any such leave. I find that this flat as- sertion by Rutter, without any qualification, con- stituted a misrepresentation of fact. There is no evidence that the Union ever would or could seek any such provision in a collective-bargaining agree- ment .44 Not only was the foregoing assertion by Rutter a misrepresentation, but it also was implied that an existing benefit (the right to request a leave of absence at any time) would be taken away from the employees if the plant became unionized. I find that by this statement Respondent further violated Section 8(a)(1) of the Act.45 E. Conclusions as to Respondent's Refusal To Bargain It is well settled that an employer may, like the Respondent, decline to recognize a union and insist upon a Board election if the employer is motivated in its refusal by a good-faith doubt as to the union's representative status in an appropriate unit. If, on the other hand, the employer's refusal is motivated by a rejection of the collective-bargaining principle or a desire to gain time within which to undermine the Union and dissipate its majority, the refusal is violative of Section 8(a)(5) of the Act.46 In the instant case, I can but find the Section 8(a)(1) and (3) violations heretofore found to have been committed throughout the period of the Union's organizational activity to be of a serious and substantial nature. The interrogation of em- ployees, the maintenance of an unlawful no-solic- itation rule, the granting of an increase in over- time pay at a time calculated to interfere with the self-organizational rights of employees, the threats on the eve of the election that employees would be deprived of existing employee benefits if the Union was selected as the bargaining agent are in them- selves sufficient to establish that the Respondent had as its purpose the rejection of the collective- bargaining principle or the desire to gain time within which to undermine the Union and dissipate its majority. Any doubt as to Respondent's motives in refusing to recognize the Union is removed when consideration is given to its discriminatory discharge of the union chairlady on the day of the election. The discharge of this key union adherent was a classic method of undermining the em- 69 Although Rutter did not specifically deny the testimony set forth above, I have not overlooked the following testimony of Rutter which bears upon this subject I explained to them that in the El Paso contract that if I hired an em- ployee, a new employee , she had 60 days to get up to standard If not, I would have to terminate her If I didn't terminate her, I would have to go along with her until a later date and would have to take it up with the Union It would be out of my hands ) continuing on the subject] I took for example , I said, now you people know who I am speak- ing of We have some characters here-we have member', here who have been here eight and nine months and still haven 't made produc- tion I said, "I don't want to throw anybody out on the street We want to try to make something out of these people and we help you along " If this be construed as a denial of the employees ' testimony , and assuming that Rutter also spoke in the manner indicated by him, I still credit the testimony of Troupe , Rinehart , and Walker that Rutter made the state- ments concerning which they testified, as set forth above " 1 am unaware of any collective -bargaining agreement which contains a provision to this effect Cf Standard Electric Co , Inc , 162 NLRB 1045 Colien Bros Fruit company, 166 NLRB 88, Joy S,//s Milh, his , 85 NLRB 1263, 185 F 2d 732, 740 (C A D C ), cert denied 341 U S 914 N L R B v Cothau Shoe Mfg Co , 359 F 2d 686 No different principle ap- plies where a union seeks a Board election after requesting the employer to bargain with it, nor does this afford the employer any basis for doubting the union 's majority Irv ing Air Chute Co v N L R B , 350 F 2d 176, 182 (C A 2) 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee's free selection of a bargaining representa- tive. N.L.R.B. v. Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A. 5). For these reasons I find that Respondent violated Section 8(a)(5) by refus- ing to recognize the Union as the representative of its employees for collective-bargaining purposes. F. The Objections The objections to be ruled upon by me in Case 16-RC-4459 are restricted to Objections 4 and 12 of the objections filed by the Union. Objection 4 re- lates to the increase in overtime pay announced and granted by the Respondent on October 1, 1966. Objection 12 alleges that "the employer threatened to discharge employees who engaged in protected activities in support of Petitioner." Whereas there is no evidence to specifically sup- port Objection 12, I have previously found that the Respondent's October 1, 1966, increase in over- time pay was violative of Section 8(a)(1) of the Act. Accordingly, I find there is merit to the' Union's Objection 4 and I shall therefore recom- mend that the election be set aside. However, in view of my further Recommended Order, that, in order to adequately remedy the unfair labor prac- tices found herein, the Respondent be ordered to bargain with the Union, upon request, I shall recommend that the petition in Case 16-RC-4459 be dismissed and that all proceedings held in con- nection therewith be vacated and set aside .41 V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the 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. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affir- mative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) of the Act by discharging Lula B. Casey, I shall recommend that Respondent make her whole for any loss of earnings she may have suffered as a result of the discrimination against her, by a pay- ment to her of a sum of money equal to that which she would have earned as wages from the date she was released by the doctor in January 1967 until the date of her reinstatement on February 6, 1967, less her net earnings during such period, with in- terest thereon in the manner prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.48 Having found that Respondent refused to bargain with the Union in violation of Section 8(a)(5), I shall recommend that it cease and desist from the violations found and, upon request, bargain with the designated employees' representative. Since the unfair labor practices herein found are of such a character and scope that they strike at the basic purposes of the Act, it will be recommended that the Respondent cease and desist from in any manner interfering with, restraining, or coercing employees in their guaranteed rights. CONCLUSIONS OF LAW 1. Levi Strauss & Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Southwest Regional Joint Board, Amalga- mated Clothing Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging Lula B. Casey on January 6, 1967, because of her union membership and activi- ties, the Respondent has engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices within the mean- ing of Section 8(a)(3) of the Act. 5. All production and maintenance employees employed at the Respondent's plant in Tyler, Tex- as, including mechanics and plant clerical em- ployees, but excluding office clerical employees professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times since September 21, 1966, the above-named Union has been and now is the exclu- sive bargaining representative of all the employees in the above-described unit for the purposes of col- lective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. " Bernet Foam Produc ti Co, Inc , 146 NLRB 1277, Nortisietr Engineer- ing Con: puns, 148 NLRB 1 136, 158 NLRB 624, Irving Air Chute Co, Inc Marathon Division, supra '" It is undisputed that Rutter told Casey, on the occasion of her rein- statement , that she was being hired as a new employee Although counsel for the Respondent and counsel for the General Counsel stipulated that Casey did not in fact lose her seniority , there is no evidence that Respon- dent ever notified her to this effect Accordingly, I shall recommend that Respondent notify Casey that her reinstatement was made without preju- dice to her seniority or other rights and privileges LEVI STRAUSS & CO. 751 7. By refusing on October 7, 1966, and thereafter, to bargain collectively with the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, con- clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , it is recom- mended that Respondent Levi Strauss & Co., its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Southwest Re- gional Joint Board , Amalgamated Clothing Wor- kers of America, AFL-CIO, or in any other labor organization , by discharging employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating its employees; threatening that existing benefits in the terms and conditions of employment will be removed because the employees have selected the Union as their bar- gaining agent; maintaining an unlawful no-solicita- tion rule ; and conferring wage benefits for the pur- pose of interfering in the self-organizational rights of its employees. (c) Refusing to bargain collectively with Southwest Regional Joint Board, Amalgamated Clothing Workers of America , AFL-CIO , as the ex- clusive representatives of its employees in the fol- lowing appropriate unit: All production and maintenance employees at the Company 's Tyler, Texas , plant , including mechanics and plant clerical employees, but excluding office clerical employees , profes- sional employees , guards, and supervisors as defined in the Act, with respect to wages, hours , and other terms and conditions of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor or- ganizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or mu- tual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make Lula B. Casey whole for any loss of pay she may have suffered in the manner set forth in the section above entitled "The Remedy." (b) Upon request, bargain collectively with the above-named Union as the exclusive bargaining representative of its employees in the unit found appropriate with respect to wages, hours, and other terms and conditions of employment. (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 necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant at Tyler, Texas, copies of the attached notice marked "Appendix."49 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.S° IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. IT IS FURTHER RECOMMENDED that the election held on January 6, 1967, in Case 16-RC-4459 be set aside, and that all prior proceedings held thereunder be vacated and set aside. " 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 Ap- peals Enforcing an Order" shall be substituted for the words " a Decision and Order " s" 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 Ordar, what steps Respondent has taken to comply herewith "