McEwen Manufacturing Co.

990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McEwen Manufacturing Company and Washington Industries , Inc. and Amalgamated Clothing Work- ers of America, AFL-CIO. Case 26-CA-2598 July 3, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 23, 1967, Trial Examiner Lowell Goer- lich issued his Decision in the above-entitled proceeding, finding that the Respondent McEwen Manufacturing Company (herein called McEwen) had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent McEwen had' not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that these allegations of the complaint be dismissed . The Trial Examiner granted the motion to dismiss the complaint as to Respondent Washington Industries , Inc. (herein called Washington). Thereafter, Respondent McEwen, the General Counsel, and the Charging Party each filed exceptions to the Trial Examiner's Decision and a brief in support thereof. In addition, the General Counsel and the Charging Party filed briefs in answer to the Respondent's exceptions; and, finally , Respondent Washington filed an an- swering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, answering briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the modifications discussed below: I In agreement with the Trial Examiner , we find that the Respondent McEwen is the sole employer .of the employees here involved, and that the com- plaint against Washington Industries , Inc. (herein called Washington ), as a joint employer was properly dismissed.2 2. The Trial Examiner found, and we agree, that the Respondent 's no-solicitation rule, being valid on its face,3 was lawfully posted on May 20, 1966,4 in order to maintain orderly and efficient produc- tion in the plant . Contrary to the General Counsel's contention , the record supports the Trial Ex- aminer's finding that the rule was posted only after the Respondent noticed the quality and quantity of the employees' work had declined . In these circum- stances, the fact that the rule was posted soon after the Union 's organizing efforts began does not war- rant an inference that its purpose and intent was to discourage union activities among the employees.5 3. We agree with the Trial Examiner 's conclu- sion without , however , adopting his rationale, that the Respondent violated Section 8(a)(1) of the Act by Plant President Pedigo's letter of July 14 and speech of July 26 to all employees. Unlike the Trial ' Respondent McEwen has excepted to many of the credibility findings made by the Trial Examiner It is the Board 's established policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility un- less, as is not the case here, the preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) r M Lowenstein & Sons, etc , 150 NLRB 737, fn 2 at 738, cf Interna- tional Union of Operating Engineers , Local 428 ( See Bee Slurry Matic, Inc ), 169 NLRB 184, and cf Miami Newspaper Printing Pressmen Local No 46 (Knight Newspapers , Inc ), 138 NLRB 1346, enfd sub nom Miami Newspaper Printing Pressmen 's Local 46 v N L R B, 322 F 2d 405 (C A D C ) Member Brown , in agreement with the General Counsel's con- tention, would find that Washington and McEwen are joint employers for purposes of this proceeding in view of their close ownership and manage- ment relationships As more fully described by the Trial Examiner, Washington , a holding company , is the sole owner of First National Com- pany (FNC), of which McEwen is a wholly owned subsidiary In addition, Washington owns 89-1/2 percent of the voting stock of Washington Manu- facturing Company ( WMC), a jobbing and wholesale operation , which is McEwen 's only customer McEwen's entire production output consists of garments made to order , under a cost-plus contract, for WMC from materi- als provided by the latter Thus, McEwen, in effect , functions merely as the production arm of WMC In this posture , the latter is in a strategic position to dictate and control McEwen 's production policies including, of course, wages paid McEwen 's employees Washington , presiding over WMC, FNC, and McEwen, controls and manages its subsidiaries through interlocking and overlapping boards of directors and corporate officers Washington selects the directors of FNC who, in turn , pick the directors of McEwen McEwen 's president, vice president , and secretary -treasurer are also directors of WMC In addition, McEwen 's vice president and secretary- treasurer are officers and directors of FNC and Washington The executive offices of Washington , FNC, and WMC are located in the same building in Nashville , Tennessee In Member Brown's opimon, these facts are distinguishable from those in the cases cited by his colleagues and amply support a finding that Washington exercises such control over the in- ternal labor policies of McEwen as to render it a joint employer with McEwen and he would so find Freda Redmond and Sir James , Inc, 147 NLRB 1025, cf Phil-Modes, Inc, and Harold Berlin d/b/a Berlin Coat Manufacturing Co, 159 NLRB 944, 947 3 No exception was taken to the Trial Examiner 's finding that the rule was lawful on its face Unless otherwise indicated, all dates are in 1966 Member Brown would find that the record establishes that this rule was promulgated for the unlawful purpose of frustrating employee exercise of Sec 7 rights, since he views the evidence as indicating that Robertson looked for some work deviations when he learned of the union activities and "later"found the work was not "quite as good " 172 NLRB No. 99 McEWEN MFG . COMPANY 991 Examiner,' however, we base our conclusion solely upon the threatening remarks contained in these communications.' Thus, in both the letter and speech Pedigo recalled what happened to a particu- lar manufacturing company in nearby Henderson, Tennessee, which closed soon after the employees there selected this Union to represent them. Pedigo,s letter warned the employees that "this [closing the plant] could happen here [at McEwen] if a union is voted into this plant...." And, in his speech, Pedigo threatened that "this Union will do the same thing for you ... that the Union has done to the employees of [the closed plant in Hender- son].... We do not want that to happen. It will not happen if we have any control of the matter, but if the Union comes in the Company cannot be responsible for what happens ...." In addition, Pedigo's letter warned the employees that if they select the Union to represent them, the Company might decide not to renew its lease with the city of McEwen for the land on which the plant is located, reminding them that the present lease would expire within a few months. We find that these remarks clearly threatened the employees with plant closure if they selected a bargaining representative, and that the Respondent thereby interfered with, coerced, and restrained the employees in violation of Section 8(a)(1) of the Act. 4. We also agree with the Trial Examiner that the Respondent, through its supervisors, Robertson, Hargis and Parchman, violated Section 8(a)(1) of the Act by variously interrogating the employees about their union sympathies, threatening em- ployees with economic reprisals if they selected the Union to represent them, promising them benefits if they refrained from supporting the Union, and making other derogatory remarks about union af- filiation, all of which, we find, tended to interfere with, coerce, and restrain the employees in the ex- ercise of their Section 7 rights. Unlike the Trial Ex- aminer, however, we do not limit our findings to the separate incidents of supervisory interference detailed by him as items (a) through (i) of his con- clusion. Rather, we view these incidents as merely illustrative of the extensive and widespread acts of interrogation and intimidation in which the Respon- dent's supervisors engaged, as more fully described in the Trial Examiner's recitation of facts, and base our conclusion upon the totality of the Respon- dent's conduct and the context in which the enu- merated incidents occurred." 5. The Trial Examiner recommended dismissal of the allegation that the Respondent violated Sec- tion 8(a)(5) of the Act by refusing to recognize and bargain with the Union on and after May 289 because he concluded that the Union's majority status on that date had not been established. Con- trary to the Trial Examiner, we find that the Union was entitled to recognition on that date and that the Respondent's refusal to grant recognition and to bargain with the Union violated Section 8(a)(5) of the Act. As more fully described in the Trial Examiner's Decision, the Union began its campaign to organize the Respondent's production and maintenance em- ployees early in May and by May 28 it had obtained signed authorization cards from 109 of the 172 em- ployees then in the bargaining unit. Of the 109 cards which were offered in evidence to establish the Union's claim of majority status, the Trial Ex- aminer admitted 100 cards 10 in evidence as "seemingly valid." And, of the 100 cards thus ad- mitted, the Trial Examiner found that 14 were in- valid for one reason or another, and that the Union's claim of majority therefore had not been established. Thus, the Trial Examiner rejected nine cards as invalid because he found insufficient evidence to establish that these cards were signed ' The Trial Examiner erred in considering himself bound by, and relying upon , the Board 's findings sustaining objections in the prior representation proceeding , as his basis for concluding that Pedigo's speech of July 26 and letter of July 14 were violative of Sec 8 ( a)( I) of the Act It is well settled that the Board 's findings and conclusions with respect to conduct alleged as objectionable in a representation proceeding are not binding upon the Trial Examiner in a subsequent hearing where such conduct is alleged as an un- fair labor practice, since the issues are different in the two types of proceedings Cf Dal-Tex Optical Company, Inc, 137 NLRB 1782, 1786-87 r Member Brown would not fragmentize the letter and the speech but would find each unlawful in its entirety In addition, Member Brown agrees with the General Counsel's contention that the Respondent also violated Sec 8 ( a)(I) by Pedigo's speeches of May 24 and June 15, both of which stressed the futility of union representation and warned that unions bring nothing but trouble " The General Counsel has excepted to the Trial Examiner's failure to make additional findings of 8(a)(I) violations on the basis of evidence ap- pearing in the record While we agree that the record contains evidence of other questionable conduct by the Respondent's supervisors, we find it un- necessary to pass upon or make such additional findings as they would, in any event , only be cumulative and, therefore , would not affect our remedi- al order herein " We find no merit in Respondent 's contention that June 23 rather than May 28 is the crucial date for determining the Union's majority status because the Union repeated its bargaining demand in a letter which Respondent received on June 23 Rea Construction Company, 137 NLRB 1769, fn I at 1770 Accordingly , we also find no merit in Respondent's contention that the authorization cards of employees who were working on May 28 but whose employment was permanently terminated thereafter should not be counted 10 At in 18 of his Decision , the Trial Examiner identified the nine cards which he refused to admit in evidence but does not state any reasons for his action At the hearing the parties stipulated , however, that six of the cards were signed by employees whose employment was permanently terminated prior to the demand date These cards were properly excluded The General Counsel has excepted , however, to the exclusion of the cards signed by Fay Branch, Lula Smith , and Bessie Lou Capps The record in- dicates, however, that General Counsel withdrew his offer of Capps' card and did not subsequently reoffer it in evidence The card signed by Smith is considered in the text below 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose stated thereon, namely, to authorize the Union to act as the employees' bar- gaining agent, and five cards because he found that the employees' signatures were insufficiently authenticated since the General Counsel did not call any of these employees as a witnesses and failed to account for his failure to do so. The Respondent has excepted for numerous reasons to the Trial Examiner's failure to find 42 other cards invalid for purposes of establishing the Union's majority. All cards in issue are discussed below and, to the extent possible, are considered together with others alleged to be invalid for the same or related reasons. The remaining 44 cards are not alleged to be invalid. Signatory did not testify and authenticating wit- ness is insufficient; printed signatures: The Trial Ex- aminer rejected 4 cards as not having been properly authenticated," i.e., those signed by Lemuel L. Palk, Eldton Bishop, Norma Jean Black, and Wil- liam D. Shields, and excluded that of Lula Smith, on these grounds and the Respondent contends that 10 others12 should be held unacceptable for the same reason. In addition, the Respondent has at- tacked the card of Mary M. McCaslin solely on the ground that the signature is printed. We find these 16 cards valid for the following reasons: Palk's card was rejected because the authenticat- ing witness, Ellen Betty Elliott, admittedly did not see Palk sign and he did not physically return the card to the solicitor. We find these facts immaterial in the circumstances herein . As found by the Trial Examiner, based on Elliott's uncontradicted testimony, Elliott gave Palk a blank authorization card which she asked him to sign; later, when she asked Palk for this card, he told her to get it from the glove compartment of his car. Accordingly, she took it from his car, at which time it had already been signed and the blanks thereon had been filled in, except that she inserted the name of the com- pany and the job Palk held. The Board has long held that an authorization card may be properly authenticated by a person other than the signer and that the latter's absence as a witness need not be accounted for.13 Thus, a card may be authenticated by a witness who testifies that he observed its ex- ecution ," but the Board will also accept as authen- tic any authorization cards which were returned by the signatory to the person soliciting them even though the solicitor did not witness the actual act of signing . 15 In this case , Palk not only returned the card in due course by telling Elliott where to pick up his card,16 but he also thereby acknowledged any writing thereon as his own." Nor is a card which is otherwise properly authenticated rendered invalid simply because the signer had not filled in all of the blanks when he turned it in to the Union.1° A card excluded from evidence by the Trial Ex- aminer for similar reasons was that of Lula Smith. We find merit in the General Counsel's position that this card should have been admitted into evidence and counted as a valid designation of the Union. Bonnie Jane Brooks solicited employee Smith's signature and testified without contradic- tion that she personally witnessed Lula Smith' s sign- ing of the card on the date indicated thereon-" She further testified, and it is undenied, that Smith's name and job title had been written on the card before it was returned, but she was unable to state with certainty that the Respondent' s name ap- peared on the card when it was turned over to her. It was this uncertainty, coupled with the fact that Smith was not called to testify, that led the Trial Examiner to refuse to accept the card. However, in view of the general rules summarized above and cases cited in connection with Palk's card, it is patent that this holding was not warranted by these factors, either together or standing alone. A similar question is raised with respect to the cards signed by the 10 persons listed in footnote 13, above. The Respondent contends these cards were insufficiently authenticated and should be held in- valid for purposes of determining majority status because the individuals who signed the cards did not testify.20 However, in each instance another em- ployee who had solicited the signature testified without contradiction that she had seen the card " The Trial Examiner correctly rejected two other cards-that of Ruby Nell Christian because the evidence fails to establish that this card was signed on or before May 28 and that of Fay Branch because it is not established that she was considered to be on temporary leave for maternity " Annabelle Crowell, Joyce Dotson, Helen M Larkin , Jackie Cook, Joslyn M Smith , Gladys Hinson , Betty Ann Turner, Violet Bailey, Lola Craft, and Pearl Pate " Thrift Drug Company of Pennsylvania, 167 NLRB 426 , Universal Metal Finishing , A Division of C A Roberts Co , 156 NLRB 138, 146 (card of Sewards) Thrift Drug Company, supra, and cases cited at fn 7 (TXD) 's Id and cases cited at in 8 (TXD) N L.R B. v Howell Chevrolet Company, 204 F 2d 79, 85-86 (C A 9), enfg 95 NLRB 410 " Verlin L Pulley, et al, dlbla Capitol-Varsity Cleaning Co, 163 NLRB 1057 (card of Marjorie Maynor), enfd in pertinent part 395 F 2d 870 (CA 6, June 5, 1968) 1s Jbid (Marjorie Maynor's card) 1s All parties had full opportunity to examine and cross-examine Brooks concerning the facts on which we rely 20 We note that the card of Annabelle Crowell, which is one of those with which we are concerned here, had the signer's name printed rather than written , but the Respondent has not attacked it on that basis as it has others discussed hereinafter Rather , it relies solely on the failure of the signatory to testify in person McEWEN MFG. COMPANY 993 signed on the date shown thereon, that the signa- tory then turned over the card to the solicitor, and that she (the solicitor) in turn gave the card to Agnes Hooper. As stated above, it is well settled that either the testimony of a witness to the signa- ture, or the testimony of the solicitor that the card was returned in due course, is sufficient to authen- ticate the card for purposes of establishing its validity. The Trial Examiner rejected, as insufficiently authenticated, the cards of Bishop and Black not only because they were not called to verify their signatures, but also because their names were printed on the cards in the space provided for signature. Agnes Hooper testified that she gave Bishop a blank authorization card which Bishop ex- ecuted in her presence on May 11 by printing his name in the space provided for signature and thereupon returned it to her. Hooper admittedly wrote Bishop's name on the card above the words "Print your full name here." And, as to Black's card, employee Carolyn Betty testified that she gave a blank card to Norma Jean Black and that, when Black subsequently returned the card to her, Black's name had been printed in the signature space. Betty admittedly did not witness the execu- tion of Black 's card. In view of the foregoing un- contradicted testimony, we find that these cards are not rendered invalid by the fact that they bear printed signatures rather than being signed in script,21 or by the fact that Bishop and Black were not called to testify, or by the fact that Black's signature was not witnessed.22 Another card which bears a printed signature and which the Respondent urges should be rejected for purposes of determining majority is that of Mary M. McCaslin. However, Mrs. McCaslin testified in per- son and identified her card and signature as having been completed on the date shown upon it. It is therefore clear that her card is not rendered invalid because she printed her name rather than writing it in script. The final card in this group is that bearing the name "William D. Shields." The Trial Examiner re- jected this card because that name did not appear on the Respondent's payroll for May 28 and because Shields' absence as a witness was not ac- counted for. However, we find that Shields' card was properly authenticated and may be counted in computing the Union's representative status. The record shows that a "Billy Shields" whose Form W-4 is signed "Billy D. Shields," was on the Respondent's payroll on the critical date. Further- more, Agnes Hooper testified, without contradic- tion, that employee Bobbie Shields gave William D. Shields a blank authorization card on May 10, and that the latter then filled in and signed the card in Hooper's presence. In view of this testimony, it was not fatal to the validity of Shields' card that he was not called personally to identify his signature. Nor does Respondent contend that "Billy D. Shields" is not the same person as "William D. Shields." Rather, Respondent challenged the validity of Shields' card on the ground that his employment was permanently terminated on June 6, before the Union's second demand for recognition and before the election of July 27. We have heretofore re- jected the contention that cards signed by persons terminated after May 28 should not be counted.23 Employees who quit after May 28: The Respon- dent contends that 20 employees who signed cards24 were no longer its employees at the time of the hearing, having voluntarily severed their em- ployment relationship sometime after May 28 and that their cards must be rejected. Only one of these employees, Mary Profitt, is alleged to have quit prior to May 28. However, it is clear from the record that in the middle of May she learned that she was to have surgery performed and so informed the Respondent, but did not quit her job. The Respondent's payroll list of May 28 shows that she was carried as an employee, and its records show that she was terminated August 29. It is well settled that the determination of a union's representative status must be based on whether it had been designated as a representative by a majority of the employees on the payroll in the appropriate unit on the crucial date, and we have found that May 28, the date of the Union' s initial demand , is the time as of which the finding must be made. Accordingly, it is clear that there is no merit to the Respondent's contention and that these 20 cards signed by per- sons in the Respondent's employ on May 28 should be counted. Signatory's intent to designate the Union not established; employees told or thought cards were for purpose of having an election : Included in this group are the 9 cards rejected by the Trial Examiner and 10 attacked by the Respondent25 on this basis. The Trial Examiner appears to have assessed the " Verlin L Pulley, et al , supra (cards of Marjorie Maynor and Wilma Reidenbach) as Id , Universal Metal Finishing, supra 23 Fn 9, supra 24 Mary Profitt, Diane Gray (Whitaker), Shirley Rickard, John Andrew Mallady, Jessie Marie Elliott , Alneita Rye, Jo Ann Parchman , Zella M Tid- well, Fern Ann Turner, Bonnie S Brown (Weatherley ), Gloria J Tidwell, Bonnie Jane Brooks, Agnes Hooper, Pearl F Jones, Ruth W Curtis, Mar- garet Geraldean Ross, Bonnie Page, Ethel Barnes, Bonnie Hooper, and Juanita Herbison u Sara Suer, Jennie Ethridge, Ruby Poston, Sue Lory, Patsy A Hooper, Carletta Bernice Coram, Verlene Caballero, Vergie Ethridge, Mary Petty, and Mildred Curtis 354-126 O-LT - 73 - pt. 1 - 64 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD validity of certain cards on the basis of whether the General Counsel had established the subjective in- tent of the signer.26 In this respect, the Trial Ex- aminer appears to have deviated from the principle 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 .... 1117 Thus, in the case of Pearlene Brooks' card, the Trial Examiner con- cluded that it could not be inferred that she signed it for the purpose of authorizing the Union to represent her. Brooks, however, testifying on' Respondent's behalf, admittedly signed the card after personally filling in the blanks thereon, and she then returned it to the person who had solicited her signature. Under the circumstances, the fact that she may have been told that the purpose of the card was "to show that we might be interested in the Union" (which is in fact a fair representation of its purpose, but in any event is far from a statement that the card would not be used for the purposes stated on it), does not constitute probative evidence to negative her overt act of signing.28 Ac- cordingly, her card should be counted. Since the Trial Examiner obviously applied an in- correct standard in determining the validity of the cards, it is necessary to reexamine the remaining 8 rejected on this basis, as well as the 10 questioned by the Respondent.29 Of these 18 cards, there are 5 as to which there is no assertion that any statement was made that the union card was for the purpose of an election, and 1 as to which the statement as- sertedly made was clearly overcome by other evidence showing nonreliance on that statement. Thus, Sara Siler testified that she was told that they "needed so many to send to the union," without any reference to an election; Dorothy Parchman testified that she was told the card was "for an elec- tion of the Union"; Vergie Ethridge testified that she had no discussion with anyone concerning its purpose before signing the card, but she signed to have an election; Sue Lory testified that she read the card before she filled in the last three lines, in- cluding her signature, and "understood" that the card was to get an election; and Patsy A. Hooper testified that she knew it was a union card that she SB See fn 20 of the Trial Examiner's Decision, infra rr Joy Silk Mills, Inc v N L.R.B , 185 F 2d 732, 744 (C A D C ) cert de- nied 341 U S 914, enfg as modified 85 NLRB 1263 1 Delight Bakery, Inc, 145 NLRB 893, 904, enfd 353 F 2d 344 (C A 6) "The remaining 44 cards admitted into evidence are not alleged by the Respondent to be invalid As each was identified and authenticated on the record, we find that they may be relied on to determine the Union's representative status 70 An election , pursuant to stipulation for certification upon consent election , was conducted on July 27 in the following unit, which we hereby find to be appropriate signed, but "thought it would be a union and if the election came you could vote the way you wanted to." Verlene Caballero testified that she was told that "if they had a certain percentage they could get an election at the plant." But in addition, she testified that she wanted to know what was going on and figured that if she joined she would know what was going on, thus indicating unequivocally that she signed for the express purpose of joining the Union. Caballero could not render her designa- tion of the Union ineffective by a mental reserva- tion, if she had one. Since each of these witnesses was testifying to her own subjective purposes or thoughts in signing , this testimony in this respect did not serve to negative the probative force of their own act of signing, and we therefore find these six are valid designations of the Union. Of the remaining cards, five signatories (Carletta Bernice Coram, Mary Petty, Hazel Curtis, Ruth Pittman, and Margie Adams) each testified to the effect that when she was asked to sign she was told that they needed to get enough cards for an elec- tion, and seven (Margie James, Margaret Nell Frazee, Blanche White, Irene Buchanan, Jennie Ethridge, Ruby Poston, and Mildred Curtis) each testified to the general effect that she was told that they needed "so many cards" to get an election and there was no membership obligation as a result of signing , that they did not have to vote for a union even if they signed the card. Even under the most stringent tests, for the reasons set forth below, we are unable to conclude that under the circum- stances here, where an election was held30 in the context of widespread interrogation and threats by the Respondent, the cards of Coram, Petty, Hazel Curtis, Pittman, and Adams must be rejected. As to the latter seven, referred to above, we need not de- cide whether under our rationale, infra, these cards may properly be counted, inasmuch as the other cards found above to be valid total 92 and hence constitute a majority of the 172 employees in the unit on May 28. The central inquiry in determining the effect to be given authorization cards is whether the em- ployees, by their act of signing, manifested an in- tent to designate the union as their bargaining All production and maintenance employees of the Employer at its McEwen , Tennessee, plant, including the shipping clerk, the mechanics, the ticket and recut girl and the marker, but excluding the foreladies , cutting department foreman, all office clerical employees, and all guards, professional employees and supervisors as defined in the Act The Union lost that election by a vote of 96 to 60, and, thereafter, filed timely objections to conduct affecting the election The Regional Director, upon investigation , recommended that the objections be sustained Excep- tions to the Regional Director 's report were duly filed and, on November 18, 1966, the Board issued a Decision and Order setting the election aside and directing a second election McEWEN MFG . COMPANY agent.31 In assessing that intent, the wording of the card is of paramount importance. Where a card on its face clearly declares a purpose to designate the union , the card itself effectively advises the em- ployee of that purpose, and particularly so where, as here, the form of the card is such as to leave no room for possible ambiguity.32 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 should and must be assumed to be aware at least that by his act of signing he is effectuating the authorization the card declares.33 Without ascribing to the signing of such cards all the solemnity and binding effect associated with such legal documents as deeds or contracts, we be- lieve there is no valid basis in reason or law for denying face value to the signed cards, as in the case of other signed instruments , absent affirmative proof that the signing was a product of misrepresentation or coercion.34 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.35 That purpose, moreover, is one that is entirely consistent with the authorization purpose expressed in the cards as well as with the use of the cards to establish majority 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 claim of majority designation in " Levi Strauss & Co, 172 NLRB 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 Brothers, Inc, 342 F 2d 221 (C A 5), in which the court was concerned with and based its decision on a card which it re- garded as ambiguous on its face And in I T T Semi-Conductors, Inc v N L R B , 395 F 2d 257 (C A 5, 1968), reversing in relevant part 165 NLRB 716, the court found the card even more ambiguous than the one in the Peterson case 'For this reason , and in the absence of evidence that they were prevented from doing so, we find it immaterial that a number of the em- ployees herein testified that they did not read the card before signing it In any event, it seems inconceivable that in a campaign as vigorous as that carried on in this situation by both the Union and the Respondent the em- ployees would be unaware of the nature of cards that were being dis- tributed and they were being asked to sign Cf Levi Strauss & Co , supra "See Cumberland Shoe Corporation , 144 NLRB 1268, and Order Amending Decision , January 13, 1964, enfd 351 F 2d 917 (C A 6) For other recent court cases upholding that principle , see, e g , International Union , United Automobile , Aerospace and Agricultural Implement Workers of America UA W (Preston Products Company, Inc v N L R B, 373 F 2d 671 (C A D C 1967), enfg 158 NLRB 322, Amalgamated Clothing Workers of America, AFL-CIO (Sagamore Shirt Co) v. N L R.B , 365 F 2d 898, 906-907 (C A.D C), Happach v N L R B., 353 F 2d 629 (C.A 7) Recent court decisions which have questioned the validity of the Board's principles concerning authorization cards include N L R B. v Dan Howard Mfg Co, 390 F 2d 304 (CA 7, 1968), Crawford Mfg Co, Inc v NLRB , 386 F.2d 367 (C.A 4), cert. denied 390 U S 1028 (1968), N L.R.B v Swan Super Cleaners, 384 F 2d 609 (C A 6), N L R B v Peter- son Bros , Inc , supra, Engineers & Fabricators, Inc v N L R B , 376 F 2d 482,486-487 (C A 5) 995 an 8(a)(5) unfair labor practice proceeding. The requisite showing under Section 9(c)(1)(A) that "a substantial number of employees ... wish to be represented for collective-bargaining purposes" cannot be made by cards which simply request an election, but must be by cards stating the wish to be represented by the particular union. Such a require- ment entails an expression of intent in all respects the same as that in a card which authorizes representation for bargaining purposes. The fact that employees may be told that an elec- tion is contemplated or that the card will make an election possible does not in our view provide suffi- cient basis in itself to vitiate 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 independently. In such a situation the Board invalidates the cards for majority computation since the nature of the representation is such as to induce a conditional delivery for a restrictive purpose.36 We believe that this standard comports not only with sound legal principles but also with the reali- ties of union organizational practices.37 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 they obtain designation cards with the 'SNLRB v Cf Glasgow Co,356F2d476(CA 7) 98 The foregoing does not imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the "sole" or "only" purpose of the cards is to obtain an election The Board does not suggest such a mechanistic application of the foregoing principles, but looks to substance 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 assures the card signer that his card will be used for no purpose other than to help get an election 'i With due deference to the view expressed by the U S Court of Ap- peals for the Fifth Circuit in its opinion in Engineers & Fabricators, Inc v N L R B , supra, until the matter has been passed upon by the U S Supreme Court, we are unable to concur that our approach applies too lax a standard or that when cards are "challenged because of alleged misrepresentations 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 re- gardless of the subjective state of mind of the signer 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, S en C 300 F 2d 886, 887 (C A 1), Joy Silk Mills v N L R B., supra, Furr's Inc v NLRB , 381 F 2d 562 (C A 10) To open up avenues of proof of subjective intent would create strong temptations to induce em- ployees to assert a retroactive repentance or disavowal which would not be subject to the normal evidentiary checks on truth or falsity In this connec- tion, see, e g , the discussion by the court in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v NLRB,supra 996 DECISIONS OF NATIONAL thought of using them first in the preliminary step to obtaining recognition ; i.e., to make the showing of interest required for the processing of a representation petition . It is therefore only to be ex- pected that there will be considerable discussion during an organization campaign of a contemplated representation proceeding and of the need for suffi- cient authorization cards for that purpose . Indeed, it would be surprising if no such mention were made . It is in the exceptional and relatively in- frequent situations in which an employer by his un- fair labor practices has made a fair election impossi- ble38 that unions with a card majority resort to 8(a)(5) complaint proceedings in an effort to establish their right to representation- in fact, that avenue is normally closed to unions unless substan- tial independent unfair labor practices have oc- curred .39 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 the union still thought it could participate in a fair election it 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 show- ing of interest in election cases and their use to establish majority in the limited situations arising under the Joy Silk doctrine . Absent some other dis- ability , their use, or proposed use, to secure an election does not alter their essential character as designations of the union to act as collective-bar- gaining representative . To hold otherwise would only result in allowing an employer to profit from his own unfair labor practices and thereby frustrate statutory policy. In this case , as noted above , we have found that there was no direct or indirect representation to the card signers whose cards we have counted toward the majority that the only purpose of the cards was to get an election. We have further found that other matters relied upon by the Respondent do not in- validate the cards . Accordingly , we conclude that the Union represented a majority of the employees at the time it demanded recognition and that the Respondent violated Section 8(a)(5) in refusing to grant such recognition for unlawful reasons. As we have shown , supra, after the Union made its de- mand for recognition, Respondent engaged in un- 4 Joy Silk Mills, Inc, 85 NLRB 1263, enfd 185 F 2d 732 (C A D C ), cert denied 341 U S 914 98 This is borne out by the Board's case statistics In fiscal year 1967, for instance, the Board conducted 8,116 elections. Contested cases in which union majority was 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 LABOR RELATIONS BOARD fair labor practice conduct designed to induce em- ployees to abandon their support of the Union. Such conduct demonstrates that, in fact, Respon- dent refused to bargain and filed a representation petition not because it had a good-faith doubt as to the majority status of the Union, but in order to gain time within which to dissipate the Union's majority and, thereby, to evade its statutory obliga- tion to recognize and bargain with the Union.40 We find, moreover, that the unlawful conduct made im- possible the holding of a free election and that, consequently, "the Board has no alternative but to look to signed authorization cards as the only available proof of the choice employees would have made absent the employer's unfair labor prac- tices. "41 THE REMEDY As we have found that the Respondent has en- gaged in additional violations of the Act, which go to the heart of the Act, and that these violations have been extensive and prolonged, we deem it ap- propriate to issue a broad cease-and-desist order in place of the narrow one recommended by the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respon- dent, McEwen Manufacturing Company , its of- ficers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Interrogating employees concerning their union membership , activities , or sympathies to discourage their membership in, or support of, Amalgamated Clothing Workers of America, AFL-CIO , in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1). (b) Threatening to close down the plant or en- gage in other reprisals if the employees engage in union activities or if a majority of the employees select the above Union , or any other labor or- ganization , as their collective-bargaining represen- tative. (c) Refusing to recognize and bargain collective- 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 Joy Silk Mills, supra " Bryant Chucking Grinder Company, 160 NLRB 1526, 1530, enfd 389 F 2d 565 (C A.), cert demed 392 U S 908; New England Liquor Sales Co., Inc 157 NLRB 153,164. McEWEN MFG. COMPANY 997 ly with Amalgamated Clothing Workers of Amer- ica, AFL-CIO. (d) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of the rights to self-organization, to form labor organizations, to join or assist Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with the above-named Union as the exclusive representative of the employees in the following unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and, if an un- derstanding is reached, embody the same in a signed agreement. The bargaining unit is: All production and maintenance employees at the McEwen Manufacturing Company plant at McEwen, Tennessee, including the shipping clerk, the mechanics, the ticket and recut girl and the marker, but excluding the foreladies, cutting department foreman, and all office clerical employees, and all guards, professional employees and supervisors as defined in the Act. (b) Post at its plant in McEwen, Tennessee, cop- ies of the attached notice marked "Appendix." 42 Copies of said notice, on forms provided by the Re- gional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 42 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: Following a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated and offered their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to abide by what we say in this notice. WE WILL NOT interrogate our employees concerning their union membership, activities, or sympathies to discourage their membership in or support of Amalgamated Clothing Wor- kers of America, AFL-CIO, or any other labor organization, in a manner constituting inter- ference, restraint, or coercion within the mean- ing of Section 8(a)(1). WE WILL NOT threaten that the plant will close down, or that you will lose your jobs, or that other reprisals will be taken if you engage in union activities or if a majority of the em- ployees select a union to represent them. WE WILL NOT refuse to recognize and bar- gain collectively with Amalgamated Clothing Workers of America, AFL-CIO. WE WILL, upon request, bargain collectively with Amalgamated Clothing Workers of Amer- ica, AFL-CIO, as the exclusive representative of our employees in the following unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and, if an understanding is reached, we will put it in writing and sign it . The bargaining unit is: All production and maintenance em- ployees at the McEwen, Manufacturing Company plant at McEwen, Tennessee, including the shipping clerk, the mechanics , the ticket and recut girl and the marker, but excluding the foreladies, cutting department foreman, all office clerical employees, and all guards, profes- sional employees and supervisors as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining , members of any labor organization. APPENDIX NOTICE TO ALL EMPLOYEES Dated By Pursuant to a Decision and Order of the National McEwEN MANUFACTURING COMPANY (Employer) (Representative ) (Title) 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 746 Federal Office Building , 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GOERLICH, Trial Examiner: On June 15, 1966, a petition for an election was filed by McEwen Manufacturing Company sometimes referred to herein as McEwen. On July 8, 1966, a stipulation for certification upon consent agreement was ex- ecuted by the Amalgamated Clothing Workers of America, AFL-CIO, herein referred to as the Union, and McEwen. On July 27, 1966, a Board- conducted election was held among McEwen's em- ployees; 60 ballots were cast for the Union, 96 bal- lots were cast against the Union, and 1 ballot was challenged. On August 3, 1966, objections to con- duct affecting the results of the election were filed by the Union and on September 2, 1966, a report on objections was issued by the Regional Director for Region 26 recommending that the election be set aside and that a new election be directed. McEwen and the Union filed timely exceptions with the Board to the report on objections. On November 18, 1966, the Board issued a Decision and Order setting aside the election conducted on July 27, 1966, and directing a second election. In its Decision, Order, and Direction of Second Election, the Board, for the reasons set forth in the Regional Director's report, adopted the Regional Director's findings and recommendations.' On November 10, 1966, the Union filed an unfair labor practice charge and on December 7, 1966, it filed a first amended charge. Upon these charges the General Counsel for the National Labor Rela- tions Board (herein called the Board) on behalf of the Board by the Regional Director for Region 26 on December 30, 1966, issued a complaint and notice of hearing naming McEwen Manufacturing Company and Washington Industries, Inc., as the Respondents. In the complaint, it was alleged that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the Na- tional Labor Relations Act, as amended, herein called the Act.2 The Respondents, by answers time- ' The Regional Director, among other things, found "that by its letter of July 14 or 15 and the speech of Pedigo on July 26, the Employer created an atmosphere of fear in which the free expression of choice of the employees was rendered impossible ly filed, denied that they had engaged in or were engaging in the unfair labor practices alleged. Hearing was held at Waverly, Tennessee, on February 7 through 10 and 13 through 17, 1967, and at Nashville, Tennessee, on April 7, 1967. At the hearing each party was afforded a full opportu- nity to be heard, to call, to examine and cross-ex- amine witnesses, to argue orally upon the record, to submit proposed findings of fact and conclusions of law, and to file briefs. All briefs have been reviewed and considered by the Trial Examiner. Issues submitted to the Trial Examiner were: 1. Whether Respondents Washington Industries, Inc., and McEwen Manufacturing Company are and have been a single integrated enterprise with Respondent McEwen Manufacturing Company being an affiliate of Washington Industries, Inc., with common ownership and management and labor relations policy. 2. Whether Respondents violated Section 8(a)(1) of the Act by: Promulgating and maintain- ing on the bulletin board at the McEwen plant a no- solicitation rule; interrogating its employees; threatening employees with loss of jobs, plant clo- sure, and less desirable working conditions; and stressing to employees the futility of selecting the Union as their collective-bargaining representative. 3. Whether Respondents violated Section 8(a)(5) of the Act by refusing to bargain with the Union after the Union had been designated by a majority of Respondents' employees in an ap- propriate unit as their representative for the pur- poses of collective bargaining. Upon the whole record and from his observation of the witnesses, the Trial Examiner makes the fol- lowing: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENTS Respondent, McEwen Manufacturing Company, is now and has been at all times material herein a Tennessee Corporation engaged in the manufacture of overalls and dungarees at its plant located at McEwen, Tennessee. During the past 12 months Respondent, McEwen Manufacturing Company, in the course and con- duct of its business operations, purchased and received at its McEwen, Tennessee, location materials and supplies valued in excess of $50,000 directly from points located outside the State of Tennessee, and during the same period manufac- tured, sold, and shipped overalls and dungarees valued in excess of $50,000 from its McEwen loca- tion directly to points outside the State of Tennes- see. ' Among other things it was alleged in the complaint that the Respon- dents violated the Act by Pedigo's speech of July 26, 1966, and the letter of July 14, 1966, referred to in fn I McEWEN MFG. COMPANY 999 Albert Pedigo is the president of Respondent McEwen Manufacturing Company, R. Hicks Clark is the vice president, and Paul A. Hargis is the secretary-treasurer. These three persons compose the board of directors. McEwen's sole customer is Washington Manufacturing Company, with which it has a cut-and-make contract. Washington Manufac- turing Company, a wholesaler and jobber, furnishes the materials which are used for the manufactured garment for which it is charged on a cost-plus basis. Pedigo holds perferred stock in Washington Manu- facturing Company. Respondent Washington Indus- tries, Inc., owns 89-1/2 percent of the voting stock of Washington Manufacturing Company and all the voting stock of First National Company, of which McEwen Manufacturing Company is a wholly owned subsidiary. First National Company and Washington Industries, Inc., have common directors and officers. Hargis and Clark are respec- tively the treasurer and secretary of Washington In- dustries, Inc. Both are on the board of directors. Other members of the board of directors of Washington Industries, Inc., are G. L. Comer, chairman of the board, T. W. Comer, president, E. H. Hatcher, vice president, and B. Hatfield, vice president. Hargis' office is located in the 200 block of Second Avenue in Nashville, Tennessee, where also are located the offices of other officers and members of the board of directors of First National Company and Washington Industries, Inc. By reason of this proximity Hargis was frequently in the association with the officers and directors of First National Company and Washington Industries, Inc. On occasion, affairs at McEwen were discussed which included the advent of the Union. However, Hargis testified that he sought no advice in respect to how McEwen should treat with the Union although he kept several of the directors of Washington Industries, Inc., up to date on what was happening at McEwen. Washington Industries, Inc., engages in no activi- ties other than the ownership of stock. Thomas M. Robertson is the plant manager at the McEwen plant and supervises its day-to-day opera- tions. Pedigo, who resides at Scotsville, Kentucky, visits the McEwen plant 2 to 4 hours a week. Pedigo is the highest executive officer of McEwen.3 There is no direct evidence that Washington Indus- tries, Inc., which exists as a holding company only, administered or formulated "a common labor rela- tions policy affecting the employees" of McEwen Manufacturing Company. On the other hand, Har- gis testified that McEwen's board of directors sought to solve the problems of the corporation by themselves. What was stated by the Board in M. Lowenstein & Sons, Inc., 150 NLRB 737, footnote 2, is apposite: Lyman, doing business in South Carolina, is one of the wholly owned subsidiaries of Lowenstein, which is located in New York. Its chief executive officer is a vice president and the general manager who holds no positions with Lowenstein. There is no common board of directors or integration of operations. They do not have a centrally controlled or common labor relations policy and Lowenstein is not in- volved in the day-to-day operations of Lyman or otherwise involved in setting wages, hours, working conditions, or any other terms of em- ployment of Lyman's employees, nor was it in- volved in any way in the commission of the un- fair labor practices found herein. Upon the en- tire record, we find merit in Respondents' ex- ception and shall dismiss the complaint as to Lowenstein. Accordingly, the motion to dismiss of Washing- ton Industries, Inc., is granted and the complaint is dismissed as to the Respondent, Washington Indus- tries, Inc. The Respondent, McEwen Manufacturing Com- pany, admits and the Trial Examiner finds that at all times material herein Washington Industries, Inc., has been and is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Alleged Violations of Section 8(a)(1) of the Act 1. The no-solicitation rule posted on May 20, 1966 On May 20, 1966, Plant Manager Thomas H. Robertson posted the following rule: There will be no solicitation of any kind, on the plant premises by any employee during working hours. There will be no distribution of any literature, notices, cards or paper of any kind in and about the work areas of any employee at any time. Non-employees shall not come upon or be upon the plant premises for the purpose of making solicitations or distrubuting literature, notices, cards or paper of any kind. Exceptions will be allowed to the above rules if approved in writing by the plant superinten- dent. 3 He described his functions , " I'm a consultant with Mr Robertson I try to help him down there " 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robertson testified that sometime during the second week of May 1966, he received a telephone call from an employee advising him that union ac- tivity was occurring. Thereafter, he noticed that female employees frequened the restroom more often than they had in the past and were journeying in groups. He also observed increased visiting at the employees' machines. According to Robertson, he also began to notice that "the quality of the work wasn't quite as it was." Because of the situation he observed, Robertson testified that he caused to be posted the rule set out above The Ge iteral Counsel makes no claim that the rule is illegal per se. His claim is that it was published "during the union's organizational cam- paign in order to discourage union membership ac- tivities." The Supreme Court has said in N.L.R.B. - v. United )reelworkers of America [Nutone Inc.], 357, U.S. 357, 361, "Employer rules prohibiting organizational solicitation are not in and of them- selves violative of the Act, for they may duly serve production, order and discipline." Here the un- contradicted evidence establishes that the rule was posted in response to interference with production and a diminution of the quality of work performed. The validity of a rule promulgated an(" posted under such circumstances is not impaired because a secondary effect might result in the im- peding of union organization, for such result to some degree must always follow from any valid rule. The no-solicitation rule being valid on its face could be lawfully posted where union activities as here were interfering with production and the quality of the employees' work. Under such circum- stances secondary effects resulting in the preven- tion of unrestrained union activities are, in nature, damnum absque injuria.4 2. President Pedigo's speeches of May 24, June 15, and July 26, 1966, and the letter of July 14, 1966 On May 24, June 15, and July 26, 1966, Pre- sident Pedigo addressed Respondent McEwen's em- ployees on company time and property. In his May 24 speech among other things Pedigo advised ". . . this Company does not want a union, will fight the union coming in this plant, and will use every legal means open to prevent a union in this plant." Again in his June 15 speech Pedigo said, ". . . I repeat, not only is this Company opposed to the Union, but we will do everything that can be done under and within the law to keep a Union out of this plant." Pedigo ended his July 26 speech with "Again, with all the sincerity that I have, I ask you to vote 'NOV' 4 Ward Manufacturing, Inc, 152 NLRB 1270, cited by the General Counsel, is distinguishable from the instant case in that in such case there was an "absence of any evidence that any disruption had occurred " In the other case cited by the General Counsel , Quality Production Company. 162 A letter signed by Pedigo and Manager Robert- son was mailed to employees on July 14, 1966, in which, among other things, appeared, "We ask you to help yourselves and at the same time help us by voting 'NO' when you mark your secret ballot on July 27." In reviewing Pedigo's speech of July 26 and the letter of July 14 the Regional Director in his report on objections said: After careful reading and consideration of the letter and speech it is found that the main theme of the Employer's campaign was the fu- tility of selecting the Union as the collective bargaining representative, and the dire con- sequences which might be expected. Thus, the opening thrust of the letter voices the Em- ployer's opinion that the Union would not help the employees or the Company and expresses the firm belief "...that the Union will hurt you and it could destroy us-that is just how seri- ous this matter is." [Emphasis supplied.] Both appeals to the employees emphasized the Union's inability to do more than make promises and stress the fact that only the Em- ployer could grant benefits. These appeals were so worded as to convey the message that the Union's request would fall on deaf ears, and only by striking could the Union's attempt to make good on it's promises. Having im- pressed upon the employees the idea that a strike was probable- rather than just a possibili- ty if the Union were selected, the Employer raised the spectre of plant closing, with pointed reference to the recent closing of a plant in a nearby city after organization by the Union. The reference to the company's intent to renew its lease contained a proviso which warned the employees that the Union might make conditions such that the Company would not feel justified in renewing its lease, but failed to indicate what type of conditions would so influence the decision. Under these circumstances it is found the letter intended to, and did, convey the message that the mere selection of the Union could cause the Em- ployer to decide not to renew its lease and to discontinue its operation. In view of the foregoing, it is found that by its letter of July 14 or 15 and the speech of Pedigo on July 26, the Employer created an at- mosphere of fear in which the free expression of choice of the employees was rendered im- possible, and merit is found to this objection. The Board adopted the Regional Director's findings and recommendations in these respects "for the reasons set forth in his report" with the footnote, "Member Fanning would rely only on NLRB 1459, the Trial Examiner found that "no particular incident [other than union activity] precipitated the promulgation of the rules " In the in- stant case it is uncontradicted that an interference with production was oc- curring McEWEN MFG. COMPANY 1001 that part of the preelection statements wherein the Employer in effect threatened not to renew its lease and to discontinue its operations in the event the Union won the election." The speech and letter were both before the Board in the representation case. From their con- text the Board drew certain factual and legal con- clusions. In this respect the speech and letter were fully considered and litigated. Moreover the same parties were before the Board in the representation case. As to matters litigated in a prior representa- tion case, "it is established Board policy, in the absence of newly discovered or previously unavaila- ble evidence not to relitigate issues which were or could have been litigated in a prior related representation proceeding." See Hollywood Brands, Inc., 163 NLRB 793, and cases therein cited. Ac- cordingly, the Trial Examiner deems himself bound by the findings and legal conclusions of the Board in the prior related representation case. The findings and conclusions of the Board which sustained the objections to the election likewise sustain, in the light of the record as a whole, a find- ing that Respondent McEwen also violated Section 8(a)(1) of the Act by Pedigo's speech of July 26, 1966, and the letter of July 14, 1966. 3. The alleged misconduct of Plant Manager Thomas M. Robertson, Supervisor Edna Hargis, and Supervisor Ova Lee Parchman Thomas M. Robertson: Thomas M. Robertson had been the plant manager of Respondent McEwen Manufacturing Company for over 15 years. He lived next door to the plant in the city of McEwen, Tennessee, which had a population of about one thousand persons. McEwen was the prin- cipal industry in the city. He had been elected mayor for two terms at McEwen and also served on the school board. McEwen commenced operations in 1947. About the second week in May 1966, one of the McEwen employees called Robertson by telephone at his home and told him there was some union ac- tivity going on. After this telephone call, Robertson observed that larger groups of employees were going to the restroom, more time was being spent in talking at machines and the quality of the work was not as good as it had been. Robertson discussed this situation with Pedigo, and recommended that the no-solicitation notice above referred to be posted. The notice was posted on May 20, 1966. According to Robertson, he became concerned and began thereafter to check with the employees.5 On May 24, 1966, Pedigo addressed the em- ployees. After Pedigo made this speech Robertson talked to more and more of the employees about the union situation. Robertson advised these em- ployees that the employer "definitely did not want any union" and that the employer "could do as good for them as the union could." From these con- versationss Robertson said he received the response that "everybody just seemed perfectly happy." Among the employees whom Robertson visited was Zella May Tidwell with whom he conversed around June 13, 1966. Robertson came to her machine and told her he wanted to talk to her about the union situation, saying that she knew more about unions because she had worked in union factories and knew a little more about the situation than others. He further said that some of the employees had worked in the factory for several years and that had been the only job they had done. He told her that unions in bigger factories were all right where they didn't see their supervisors every day, but with small factories where the supervisors were with the employees every day any difficulty could be ironed out that came up. He told her that he had done her several favors in the past and he thought she ought to do him one in return. He asked her if there was going to be an election. She told him she did not know, that she had not been notified that there would be one and she didn't know whether there would or would not be an elec- tion. He told her then to think the situation over and he hoped that when it came to an election she would vote "No." He further told her that whichever way it went, and in any event, he wanted her to know he was her friend. He told her that the Company would not stand for the Union and that "if the union come in [they] might lose [their] fac- tory." While Robertson denied the foregoing credited facts he testified that he told Tidwell that he "didn't want any union" and that he thought that "the Company would do better for the employees than the union could do."7 Robertson also conversed with employee Ellen Elliott at her machine on June 13, 1966. Robertson Robertson testified. So I began to check with the employees and ask them if-just casually-if they were getting along all right , were they having trouble, and so forth About if the union activity was-some of them I told I heard the union was being organized , or something to that effect So I just would ask them if all was all right , if they was happy on their jobs, if they're satisfied like they was working . I didn 't get no response, so everything was all right ° Robertson testified Well, usually I would go up to them and of course knowing them like I did, I would speak to them and chat with them , and maybe tell them I would like to talk to them about the union It was after the speech, it was definite we didn 't want any union, that was sure We definitely didn 't want any union and of course they understood that , I was sure of that And I would tell them that we thought we could do as good for them as the union could, and I certainly wanted them to make up their minds and I wanted them to vote like they thought was best, but I hoped they would vote against the union Having carefully observed the witnesses while testifying and in view of the fact that statements attributed to Robertson follow a definite pattern and tend to contribute to McEwen 's efforts to defeat the Union, an effort which Robertson was sponsoring, the Trial Examiner has credited wit- nesses whose testimony conflicts with that of Robertson 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said that he heard that the Union claimed that a majority of the employees had signed union cards. He said that it would be "put to a vote." He further said he would "like" for her to "think it over" and "try to see his side" and that if only the Washing- ton, D.C., company was involved they could close the plant, but since they had contracts with other companies, they would not let them close. The Union, however, could force them out on a strike. He also told her that however she voted, they had always been friends and would still remain friends, and if-she needed her check early, he would see if he couldn't get it to her at any time. Robertson likewise talked with employee Nancy Elliott" on June 13, 1966. Elliott's testimony in respect to the conversation (which is credited) is as follows: Mr. Robertson, he said, "Nancy, I would like to talk to you about the union." He said that if the union comes in there is liable to be trouble and you couldn't say you hadn't been warned. He said, "although you don't remember it, but a union has been around before and all it caused was trouble. The company has been good to you and we know you want to work, and you will work because the company has plenty of work. The only way you wouldn't get to work would be if the union came in and the plant would go out of business." He said, "Of course if it would have been up to Washington Manufacturing Company, that they would have closed down at the first whisper of a union, but at the present we have contracts with Red Ball and Big Buck and they won't let us close." He said, "It is easy for any- one to sign a card, but the voting is what counts so think it over and vote no." Robertson also visited with employee Bonnie Sue (Brown) Weatherly at her machine.9 Robertson said that he was sure she had "heard of the plant closing" but that this was "not true"; that the "only way the plant would close" was for the "Union to come in and pull a strike." He said that if the "Union came in it would not only mean that the peo- ple in the plant would lose their jobs, but he would lose his also." He further remarked that he had his home in McEwen and that Weatherly was young and could "get a job somewhere else, but there was older people in the plant who couldn't do this." Weatherly asked Robertson whether the majority of the employees had signed cards. He answered that it was true. Robertson further commented that he had been "good" to Weatherly and that when she asked him for another job he gave it to her. A few days after Eunice Little signed her union card,10 Robertson approached her at her machine. He asked her whether she had signed a union card. She answered in the affirmative. Robertson then said, "... we don't have any union here; we don't want no union here and if it comes to a union, the company will fight it.... it would come to a law suit and it would be a long drawn out affair and we would be out of work because of it."" Supervisor Edna Hargis: About 20 employees worked under Supervisor Hargis, one of whom was Gloria Tidwell. Hargis held two conversations with Tidwell at her machine on June 18, 1966. During the first conversation Hargis asked Tidwell what she thought of the Union and Tidwell told her she wasn't against it. Hargis then asked her what was one thing the Union could do for them and Tidwell answered that she thought the Union was all right. On the afternoon of the same day at or about 1:15 p.m. Hargis again came to Tidwell's machine and said she was talking to Tidwell as a friend. She asked Tidwell if she had read the letter that the Company sent to all of its employees. Tidwell told her that she had read the letter. Hargis said that she had worked for the Company for several years and that "she knew the company wouldn't stand to have a union come in." Hargis further said that where the employees had steady work now there would be less chance of having steady working conditions if the Union came in and that if the Union called them out on strike, there would be a "possibility" that the girls wouldn't have their jobs when they came back . Hargis suggested that Tidwell think it over and think over what the letter said. Hargis then asked whether there was anything the Union could do for the employees. Tidwell responded that "there were several things it could do for us." Har- gis repeated that "the Company wouldn't stand to have a union."12 Supervisor Ova Lee Parchman: Supervisor a In evaluating Nancy Elliott 's testimony the Trial Examiner has taken into consideration that her direct testimony was a memorization of her af- fidavit given to a Board agent At the time she gave her affidavit she had ac- cess to notes which she had prepared immediately after the conversation with Robertson These notes were made available to the Respondent's counsel at the hearing but were not used to impeach the testimony of El- liott Weatherly, a sister of Nancy Elliott, also memorized her affidavit The Trial Examiner has not considered that such fact reflects adversely upon the credibility of Weatherly 10 Eunice Little signed her union authorization card on May 1 I , 1966 " Robertson admitted that he had talked to Little about the Union He testified Well, I told Eunice that it looked like they were going to have an elec- tion for a union-a union election possibly-and I wanted to talk to her a minute about it, that when the time comes to vote I wanted her to make up her mind , and also I told her that I thought that we, the com- pany-I might have said we-could do as much for her as the union could do '- Hargis denied conversing with Tidwell about the Union She testified that part of her job was to check the employees ' work daily for which pur- pose she visited the employees ' machines According to Hargis during the 20 years she was supervisor she never talked to employees while "around their machines about matters not relating to work " The implausibility of such circumstance occurring , as well as the demeanor of Hargis while testifying , persuades the Trial Examiner that Hargis was not a credible wit- ness McEWEN MFG. COMPANY 1003 Parchman has worked for McEwen for 10 or 12 years and presently supervises approximately 25 employees. Employee Sarah King worked for her with whom she discussed the Union on June 3, 10, and 17, 1966.'1 The first conversation occurred shortly after Pedigo's speech of May 24. In the course of the first conversation Parchman asked King how she felt about Pedigo's speech. King asked what she meant. Parchman replied, "The Union." King responded, "I am for it 100%." Parchman said, "Oh Ella ... I thought you were otherwise." Im- mediately thereafter Parchman was seen talking to Manager Robertson. The second conversation took place at the band- ing machine. Parchman said she wished the "girls would get to work," to which King replied that she was working her "tail off", Parchman said she did not mean King. Parchman added, "Did you know that there won't be any time that we won't have a plant here?" and that "any girl that signed a union card- should starve to death." Parchman also said that "in a little while [the plant] would be closed just like the plant at Waverly" and that the plant had continued about as long as "we could have it." The Trial Examiner finds that apropos of the en- vironment created by the Respondent's antiunion campaign, the Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) as follows: (a) Robertson unlawfully interrogated employees as to whether "they were getting along alright" or "were having trouble" and "if they were happy in their jobs-if they're satisfied like they were work- ing.'+14 (b) Robertson unlawfully interrogated employees with the futility of selecting the Union, to wit: ".. . we thought we could do as good for them as the Union could."" (c) Robertson unlawfully interfered with the right of self-organization when he mentioned to em- ployee Zella May Tidwell that he had done her favors in the past and he thought she ought to do him one in return; Robertson unlawfully inter- rogated Tidwell as to whether there was going to be an election; Robertson unlawfully threatened plant closing when he stated that "if the Union came in [they] might lose [their] factory"; and Robertson unlawfully impressed Tidwell with the futility of selecting a union by his admitted statement that "the Company would do better for the employees than-the Union could." (d) Robertson created the impression of the promise of a benefit in the light of his other re- marks when he told Ellen Elliott that if she needed her check early he would see if he couldn't get it to her at any time. (e) Robertson threatened plant closing by assert- ing to Nancy Elliott that the "only way you won't get to work would be if the Union came in and the plant would go out of business." (f) Robertson unlawfully threatened employee Weatherly with loss of employment if the Union prevailed by stating, in the context used, that if the Union prevailed "people would lose their jobs" and he "would lose his also," and Robertson interfered with rights of self-organization when he said to her that he had been "good" to her and that when she asked him for another job he had given it to her. (g) Robertson unlawfully interrogated employee Little as to whether she signed a union card; Robertson unlawfully threatened reprisal by assert- ing that if the Union prevailed "it would come to a law suit" and that employees "would be out of work because of it." (h) Supervisor Hargis unlawfully interrogated employee Gloria Tidwell as to what she thought about the Union and what the Union could do for the employees; Hargis impressed Tidwell with the futility of employees' choosing the Union by the statement that the "company wouldn't stand to have a union come in" and that there would be less chance of having steady working conditions if the Union prevailed. (i) Supervisor Parchman unlawfully interrogated employee King as to how she felt about the Union. Parchman unlawfully threatened reprisal when she stated that "in a little while" the plant "would be closed" and girls who signed union cards "should starve to death. 1116 B. The Alleged Violation of Section 8(a)(5) of the Act 1. The showing of interest On May 4 and 9, 1966, the Union held joint or- " Parchman denied the testimony of King which is credited In view of Robertson's extensive and open contacts with employees during the union organizational campaign , which were readily observable , and the thrust of the McEwen 's antiunion campaign , it seems likely that Parchman would have conversed with King and made the remarks attributed to her For this reason the Trial Examiner has resolved credibility in favor of witness King Demeanor has been evaluated "The interrogations herein found to be unlawful , coming at the beginning of a union organizational campaign among McGwen's em- ployees, were clearly initiated in order that McEwen could elicit important information most useful to it in formulating a program whereby it could draw its employees away from union affection Such interrogations which encroached upon priviledged union matters served no legitimate employer purpose and reasonably tended to restrain or interfere with employees in the exercise of rights guaranteed by Sec 7 of the Act See Jefferson Wire and Cable Corp, 159 NLRB 1384 1b In The Trane Co, 137 NLRB 1506,15 10 There is no more effective way to dissuade employees from voting for a collective bargaining representative than to tell them that their votes for such representative will avail them nothing In N L R B v Bailey Co, 180 F 2d 278,279 (C A 6) An employer interferes with the right of self-organization when he emphasizes to his employees that there is no necessity for a collective bargaining agent 16 Each of the foregoing findings has not been considered in isolation but have been weighed upon the basis of Respondent McEwen's entire course of conduct and evolved from the record as a whole 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganizational meetings of McEwen and Waverly Garment Company, Inc., employees. Employees from both plants were present. Cleron B. Smith, union area director, addressed both meetings. Smith advised the employees present "to hurry up and get people signed up." Blank union authoriza- tion cards were given to the employees present and they were instructed by Smith on how to solicit other employees. McEwen employees were told to return any signed cards obtained to McEwen em- ployee Agnes Hooper. Some of the employees signed authorization cards at the meetings. Other authorizations were obtained by employee solicitors pursuant to Smith 's instructions. There were 109 authorization cards" offered for the purpose of proving that a majority of McEwen's employees had designated and selected the Union as the exclusive representative for the purpose of collective bargaining . Of the 109 cards, 100 were admitted as seemingly valid cards for the purpose of establishing the Union's alleged majority status.'' The parties stipulated that as of May 28, 1966,19 eligible employees in the appropriate unit num- bered 172. Thus, in order for the Union to establish a majority interest in the appropriate unit, it was necessary, on May 28, 1966, to have in its posses- sion valid authorization cards numbering 87. Ac- cordingly, if 14 of the 100 cards are invalid for the purpose of establishing the Union's majority, the Union's claim as the representative for the purposes of collective bargaining must fail. The card of Margie James: James' card was authenticated by employee Weatherly who stated she saw James sign the card. James was called as a witness by McEwen. James testified without con- On the face of the card appeared Date of Signing 1, (Print your full name here ) now employed by (Name of Company) (Location ) have voluntarily accepted membership in the AMALGA- MATED CLOTHING WORKERS OF AMERICA (AFL-CIO) and designate said Union as my collective bargaining agent in all matters pertaining to wages, hours and other conditions of employment I hereby further subscribe to the dues deduction provisions printed on the reverse side of this card Signed (Operation and Department) (Phone No ) (Signer's Home Address) On the reverse side of the card appeared I hereby authorize my Employer (the Company named on the reverse of this card ) to deduct from my wages dues, that may be due to the Union (the Union named on the reverse of this card ) This authori- ty to make such deduction shall be irrevocable for the period of one year until the termination date of the collective bargaining agreement between my Employer and the Union, whichever occurs sooner, and I agree and direct that this authorization shall be automatically renewed and shall be irrevocable for successive periods of one year each and for the period of each succeeding collective bargaining agreement between my Employer and the Union , whichever shall be shorter, un- less written notice is given by me to my Employer and the Union not more than twenty (20) days and not less than ten (10) days prior to the expiration of each period of one year or of each collective bargaining agreement between my Employer and the Union, whichever occurs sooner If a new worker this authorization becomes effective at the end of my trial period tradiction20 that Weatherly said to her that "they had to have so many to sign the cards so they could have an election" and if she would sign the card she "wouldn't have to join the union if [she] didn't want to." James did not read the card. From the foregoing testimony it appears that James signed the card upon the oral representation that such card would not be used for other than election purposes. Such a finding is buttressed by the fact that the employee did not read the card. Accordingly the Trial Examiner finds that James' card cannot be counted toward establishing the majority status of the Union. See Jefferson Wire and Cable Corp., 159 NLRB 1384, footnote 3, and cases therein cited. The card of Hazel Curtis: Curtis testified (without contradiction) in respect to what employee Pearl Jones said to her, "She asked me if I would sign a union card and I asked her what the card was for and she said, `For a union election."' Curtis further testified that she had been told of no other purpose for signing the card. Curtis did not read the card. For the same reasons expressed in connection with employee James' card, the Trial Examiner finds that Curtis' card cannot be counted toward establishing the majority status of the Union. The card of Margaret Nell Frazee- Frazee's card was authenticated by employee Pearl Jones who testified that she saw Frazee sign the card. Frazee, called as a witness for McEwen, testified without contradiction that Jones said "... they had to have a majority before they could have an election and if they didn't get that, they couldn't have an elec- tion." Frazee did not read the card. For the same reasons expressed in connection "Cards of the following employees were excluded Virginia Tester, Ken- neth Hollard , Erline Bledsoe , Pearline Dominick , Fay Branch, Lula Smith, Bessie Lou Capps, Martha Ann Craft, and Nettie Boyd 18 May 28, 1966, was the date upon which McEwen received the Union's letter informing it that the Union had been "designated by a majority of [McEwen's] production and maintenance employees as their collective bargaining representative " The letter included the paragraph We are prepared to prove our majority by submitting our authoriza- tion cards to a mutually agreeable third person provided that under no circumstances will the names of those employees who signed cards be revealed We, therefore , request at this time an appointment to meet with you at your earliest convenience in order to commence collective bargaining negotiations 20 In crediting witnesses called by the Respondent to rebutt the prima facie validity of the cards considered hereafter , and in assessing the proba- tive value of the evidence of the General Counsel and the Charging Party, the Trial Examiner has considered that neither the General Counsel nor the Charging Party called witnesses in rebuttal or explained their failure to call such witnesses although such witnesses appeared to have been available for testimony , some of whom testified in behalf of the General Counsel when he presented his case-in-chief In N L R B v Ohio Calcium Co, 133 F 2d 721, 727 (C A. 6), the court said The well-known rule is applicable to Abel's testimony that when a party produces such evidence as it is in his power to produce, its probative effect is enhanced by the silence of his opponent and also where the party on whom rests the burden of evidence as to a particu- lar fact has the evidence within his control and withholds it, the pre- sumption is that such evidence is against his interest and insistence McEWEN MFG. COMPANY 1005 with employee James ' card the Trial Examiner rings that Frazee's card cannot be counted toward establishing the majority status of the Union. The card of Ruth Pittman : Pittman 's card was authenticated by employee Agnes Hooper who stated she saw Pittman sign the card . Pittman, called as a witness for McEwen , testified without contradiction that she signed the card and gave it to Hooper without reading it. She said that Pearl Jones, Bonnie Brown ( Weatherly ), Agnes Hooper, and Christine Forrester had "all said it was to be- so we could have an election ." Testifying specifi- cally concerning her conversation with Hooper she testified , ". . . she just asked me to sign and told me they wanted to hold an election-so they could get enough to hold an election." For the same reasons expressed in connection with employee James ' card the Trial Examiner finds that Pittman 's card cannot be counted toward establishing the majority status of the Union. The card of Margie Adams: Adams, called as a witness for McEwen, testified without contradiction that prior to signing the card she had a discussion with Bonnie Brown [ Weatherly ] who had asked her to sign the card . Brown said that the purpose of the card "was to get an election ; to get enough cards for an election." Adams did not read the card. For the same reason expressed in connection with employee James ' card the Trial Examiner finds that Adams' card cannot be counted toward establishing the majority status of the Union. The card of Dorothy Parchman : Parchman, as a witness for McEwen, testified without contradiction that at the time she was given the card by employee Eunice Maybury, Maybury said " it was to get so many cards signed for an election of the Union." Parchman did not read the card . Parchman testified , "I just sat with her when she filled it out and then I signed it." For the same reasons expressed in connection with employee James ' card the Trial Examiner finds that Parchman 's card cannot be counted toward establishing the majority status of the Union. The card of Blanche White : White , as a witness for McEwen , testified without contradiction that she signed and dated the card given to her by em- ployee Hettie Rye but did not read it. At the time Rye told her that "they had to have so many before the election...." Rye also said that she "could vote any way [she] wanted to vote when the elec- tions came in." For the same reasons expressed in connection with employee James ' card the Trial Examiner finds that White 's card cannot be counted toward establishing the majority status of the Union. The card of Pearlene Brooks: Brooks, as a witness for McEwen , testified without contradiction that Earline Bailey gave her the card and said that "it was to show that we might be interested in the Union." Brooks did not read the card. In view of the fact that Brooks did not read the card it may not be inferred from the representation of employee Bailey that Brooks signed the card for the purpose set forth on the card. It would appear, therefore, that the General Counsel has not sustained his burden of proving that the card was signed for the purpose of designating the Union as Brooks' bargaining agent. The Trial Examiner finds that Brooks' card cannot be counted toward establishing the majority status of the Union. The card of Irene Buchanan: Buchanan's card was authenticated by Agnes Hooper who testified that she saw Buchanan sign the card . Buchanan, as a witness for McEwen, testified without contradiction that Hooper said to her when she solicited the card that "it was to get enough cards to hold an elec- tion." Buchanan testified that she read the card and observed the language on the back which indicated that she was signing a checkoff of dues for the Union. Whereupon, she asked Hooper whether she would "automatically be a member of the Union" if she signed the card. Hooper replied "No, it was just to get enough for an election." From the foregoing testimony, it follows that Buchanan signed the card upon the representation that it would not be used other than for election purposes. The Trial Examiner finds that Buchanan's card cannot be counted toward establishing the majority status of the Union. The card of Lemuel L. Palk: Ellen Betty Elliott testified that she gave Palk a blank authorization card. Later he told her it was in the pocket of his car. Elliott picked up the card out of the pocket of the car. At the time a signature was on the card. El- liott inserted the name of McEwen and the word "bundleboy." Elliott did not see the card signed. Palk was not working for the employer at the time of the hearing . His absence as a witness was not ac- counted for. The Trial Examiner is of the opinion that the General Counsel has not submitted suffi- cient proof to establish authenticity of Palk's al- leged signature by a preponderance of the evidence. The Trial Examiner finds that Palk's card cannot be counted for the purpose of establishing the majority status of the Union. The card of Eldton Bishop: Agnes Hooper testified that she witnessed the execution of Bishop's card on May 11, 1966. The printed name Eldton Bishop appears on the card over the words "Print your full name here" and opposite the word "Signed." Hooper testified that she printed the name Eldton Bishop over the words "Print your full name here." Bishop was not called to verify his al- leged printed signature. Bishop's Form W-4 (Em- ployee's Withholding Exemption Certificate) signed April 26, 1966, shows Bishop's signature signed in script as "Roy Eldton Bishop." There is no visible similarity between the printed signature attributed to Bishop and the script signature appearing on the Form W-4. Since Bishop's alleged signature on the card does not appear to have been written in the manner in which he customarily signed documents connected with his employment it is the opinion of the Trial 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner that the General Counsel has not sub- mitted sufficient proof to establish the authenticity of Bishop's alleged card by a preponderance of the evidence. The Trial Examiner finds that Bishop's card may not be counted for the purpose of establishing the majority status of the Union. The card of Norma Jean Black: Employee Carolyn Betty testified that she gave a blank authorization card to employee Black who returned it to her with a printed signature thereon on May 10, 1966. Betty did not see Black execute the card. Black has not been employed by McEwen since July 15, 1966. Black was not called for testimony. Black's Form W-4 reveals that she signed her name in script. The Trial Examiner is unable to discern any similarity between the printed signature attributed to Black and the script signature appearing in the Form W-4. Since Black's alleged signature on the card was not verified by Black or a person who witnessed the execution of the signature and does not appear to be written in the manner in which Black customari- ly signed documents connected with her employ- ment, it is the opinion of the Trial Examiner that the General Counsel has not submitted sufficient proof to establish the authenticity of Black's alleged card by a preponderance of the evidence. The Trial Examiner finds that Black's card can not be counted for the purpose of establishing the majority status of the Union. The card of William D. Shields: Agnes Hooper testified that she witnessed the execution of the signature, William D. Shields, on a union authoriza- tion card on May 10, 1966. No employee by the name of William D. Shields was listed on McEwen's payroll of May 28, 1966. On the payroll appears a "Billy Shields" and a "Bobbie Shields." A Form W-4 shows the name "Billy Shields" at the top and "Billy D. Shields" opposite the word "Signed." Billy Shields left the employ of McEwen during the week ending June 6, 1966. William D. Shields was not called for testimony. The record is barren of any proof that the same person who signed the Form W-4 also signed the card. Under these circumstances the Trial Examiner is of the opinion that the General Counsel has not submitted sufficient evidence to establish by a pre- ponderance of the evidence that Billy Shields whose name appears on the May 28, 1966, payroll is the same person who signed William D. Shields on the card. The Trial Examiner finds that Shields' card may not be counted for the purpose of establishing the majority status of the Union. The card of Ruby Nell Christian: As a witness for McEwen, Christian verified her signature on the card and testified that her signature was the only entry she made on the card. Christian's signature is in pencil; all other entries on the card are in ink. Christian testified that to the best of her recollec- tion the card was signed about the middle of June, just before the vacation period. Hooper was sitting next to Christian in an automobile at the time she signed the card. Christian said Hooper had been "hounding" her everyday to get her to sing the card and that she signed it so that Hooper would "hush." Hooper was not called to contradict the testimony of Christian.21 Under these circumstances the Trial Examiner is of the opinion that the General Counsel has not submitted sufficient evidence to establish by a pre- ponderance of the evidence that Christian signed her card prior to May 28, 1966. The Trial Ex- aminer finds that Christian's card can not be counted for the purpose of establishing the majority status of the Union as of May 28, 1966. Thus it appears that on May 28, 1966, the Union had not been designated or selected by the majority of McEwen's employees in an appropriate unit as the exclusive representative for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. Accordingly those allegations in the complaint charging a violation of Section 8(a)(5) of the Act are dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion I[[, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has en- gaged in certain unfair labor practices, it is recom- mended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Furthermore, in accordance with the Board's decision in H. W. Elson Bottling Company, 155 NLRB 714, it is recommended that the Union be given an opportunity to present its views to the vot- ing unit employees assembled on company time and premises. It is further recommended that, upon the request of the Union, respondent shall make available to the Union and its representatives at a mutually agreeable time within 3 months of the Recommended Order herein, suitable facilities such as are customarily used for employee meetings so that the Union may speak to the voting unit em- ployees assembled on company time. Such facility shall be available for one 1-hour meeting. Y' On direct examination Hooper was handed a number of cards includ- ing Christian's card and was asked whether they were signed on "the date indicated on the cards " She answered , " I would say they were " Such testimony , in answer to a leading question, in the light of Christian's testimony , appears to have little probative value McEWEN MFG. COMPANY 1007 It is further recommended that upon the request of the Union made within 1 month from the date of the Recommended Order herein , the Respondent immediately grant the Union and its representatives reasonable access for a 3-month period to its bul- letin boards and all places where notices to em- ployees are customarily posted. CONCLUSIONS OF LAW within the meaning of Section 2( 6) and (7) of the Act. 3. By interfering with , restraining, and coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce [Recommended Order omitted from publica- tion. ]