Jackson Chair Co., Inc.

JACKSON CHAIR CO., INC. 239 Jackson Chair Co., Inc. and Upholsterers' International Union of North America, AFL-CIO. Case 9-CA-4621 May 29, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 24, 1968, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding; finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations' of the Trial Examiner. We are adopting the Trial Examiner's finding that Respondent unlawfully denied employment to Hill for we are persuaded that it was Hill's union membership that motivated Respondent not to hire him. Thus, Hill's long- time union membership was disclosed to Respondent during his employment interview. When, thereafter, a number of job openings developed, Hill was not contacted. Respondent, and our dissenting colleague, appear to ascribe this to a company policy of not hiring anyone over 40 years of age who is inexperienced in Respondent's work, as Hill was, except as janitor. The only evidence of such a policy is found in the self-serving testimony reported in the dissent. But 'We have carefully examined the record and find no basis to support Respondent's contention that the Trial Examiner exhibited bias. 'We affirm the Trial Examiner's limited remedial order since neither Respondent nor the General Counsel filed exceptions to it. The Trial Examiner erred in counting the authorization card of Lester Dotson in computing the Union's majority, since his card was dated November 8, 1967, one day after the cutoff date, November 7, when the Union demanded recognition . Although this reduces the total number of valid cards to 80, it does not affect the Trial Examiner's finding, or our concurrence therein, that the Union had obtained more than the necessary number of cards needed to establish majority support. In adopting the Trial Examiner's conclusion that Respondent refused to rehire Lawrence Ray Foley for discriminatory reasons, we do not accord any probative weight to the fact that Wilson's daughter failed to testify since the record reveals she was seated in another room and there was no showing that she had heard any of the conversation between her father and Foley. admittedly, a man over 40 years old was employed subsequent to Hill's interview, and Respondent's own exhibit shows that this person was hired as a sander, not ajanitor.-' As for Hill's inexperience in furniture making, that was a fact known to Respondent at the employment interview, yet it manifested a willingness to give Hill "a trial at it." Besides, the record indicates that some 24 other individuals were hired subsequent to Hill's application, a number of whom were inexperienced. There is also ample evidence in the record of union animus, as evidenced by the unfair labor practices unanimously found herein. Of particular significance is Respondent's refusal to hire Foley for discriminatory reasons and Wilson's statement to Downs that if he had known Downs was for a union he would not have hired Downs. Upon the entire record, we do not believe that Hill was denied work for the reasons given. All the aforementioned circumstances, including the absence of a persuasive legitimate explanation for the denial of work to Hill and Respondent's hostility to unionism, especially the evidence which reflects Respondent's determination not to hire union adherents, compels the finding that Hill was not hired because he was a union member. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that Respondent, Jackson Chair Co., Inc., Danville, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. CHAIRMAN MCCULLOCH , dissenting: I dissent from my colleagues adoption of the Trial Examiner's conclusion that Respondent denied employment to Hill because of his union membership. Hill was 47 years old when he applied for a job with Respondent in November 1967, and had no prior experience with any of the machinery used in the plant. He was interviewed by a foreman, Crowe, who told him that someone with experience was preferred but also said, however, that he might be willing to give Hill "a trial at it." Sometime during the interview, Hill, in response to Crowe's inquiry, stated that he had been a uniofp member for some 18 or 20 years. Subsequently, when Hill's friend, asked Crowe if Hill would be hired, Crowe responded negatively, stating that Hill "could not do 'The testimony of the Company's president , Jackson, was directly contradicted by an exhibit prepared by the Company and introduced as G.C. Exh . 17. Jackson, in attempting to explain the hiring of an older employee, Coffman, whom he estimated at between SO and 60 years of age, stated Coffman was hired for a janitorial position. Exhibit 17 lists Coffman's position as that of a "sander." 176 NLRB No. 33 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that kind of work." Respondent did hire 24 new employees between November 1967 and April 1968. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner : This is an unfair labor practice case brought pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act, 29 U.S.C. 160(b). It was commenced by a complaint issued on May 24, 1968, by the General Counsel of the National Labor Relations Board , through the Regional Director for Region 9 (Cincinnati, Ohio). That complaint, based on a charge and amended charge' filed on February 8 and May 4, 1968, respectively, by the Charging Party , Upholsterers' International Union of North America, AFL-CIO, names Jackson Chair Co., Inc., as the Respondent. In substance the complaint alleges that Respondent has violated Section 8(a)(l), (3), and (5), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some facts but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, on August 13 and 14, 1968, at Danville, Kentucky. All parties were represented at and participated in the trial , and were granted full opportunity to adduce evidence , examine and cross-examine witnesses, submit briefs, and present oral argument . A brief has been received from the Respondent. Upon the entire record in this case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a Kentucky corporation, is engaged at Danville, Kentucky, in manufacturing and selling furniture. During the 12 months prior to the issuance of the complaint on May 24, 1968, Respondent purchased parts, supplies, and equipment valued in excess of $50,000 which it received directly from points outside the State of Kentucky. I find that Respondent is an employer as defined in Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Upholsterers' International Union of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This case involves the issues of whether Respondent: (1) threatened employees with reprisals if they selected the Union as their bargaining agent ; (2) coercively interrogated employees about the union activities; (3) created the impression that it kept the union activities of 'The amended charge is not included in G.C. Exh. I. its employees under surveillance; (4) granted benefits to employees to cause them to discontinue their support for, and activities on behalf of, the Union; (5) refused to hire Albert F. Hill and to rehire Lawrence Ray Foley because of their membership in, sympathy for, or activities on behalf of, the Union; and (6) unlawfully refused to recognize and bargain with the Union as the exclusive bargaining agent of Respondent 's employees in a unit appropriate for the purposes of collective bargaining. IV. GENERAL COUNSELS VERSION OF THE UNFAIR LABOR PRACTICES A. The Refusal To Bargain Jack Wuichet is an organizer for the Union. About June 4, 1967, he commenced organizing Respondent's employees. Among other things he obtained employee signatures to cards authorizing the Union to act as collective bargaining agent for such employees. He personally observed 59 employees sign cards. These are in evidence as G.C. Exh. 14-1 through 14-57, both inclusive, and G.C. Exh. 16-23 and 16-9. In addition, Wuichet received by mail 11 more cards. See G.C. Exh. 16-4, 10, 11, 16, 17, 18, 19, 20, 21, 22, and 24. Also there were turned over to him from "other parties involved in the campaign" (i.e., members of a plant soliciting committee) another 11 union authorization cards obtained by such "other parties" from employees. See G.C. Exh. 16-1, 2, 3, 5, 6, 7, 8, 12, 13, 14, and 15. The manner in which these last 22 cards were obtained is set out in a tally sheet in evidence as G.C. Exh. 15, which was prepared by Wuichet as part of his daily duties. Thus by November 7, 1967, Wuichet had in his possession 81 signed authorization cards. By letter dated November 7, 1967, Wuichet, on behalf of the Union, wrote to Respondent. See G.C. Exh. 3. It was received the next day. In addition to claiming designation by a majority of the employees, the Union therein demanded recognition as the bargaining agent of such employees and offered to prove its majority by submitting its "cards to a mutually acceptable third person." Replying thereto by letter dated November 14, 1967, Respondent asserted "We doubt it to be a fact that a majority of our employees are represented by your union, and therefore decline to recognize it," and suggested that the Union "petition the N.L.R.B. for an election." (G.C. Exh. 4). This letter was received by the Union in due time. On about November 22, 1967, the Union filed a petition for an election with the NLRB Regional Office in Cincinnati, Ohio. The election was not held. Wuichet testified that he went to the home of every single employee signing a union card to discuss the union campaign with each individual employee. At no time did he tell them that these cards would help the Union to obtain an election ; but whenever he was "asked of the election " he "gave them the election procedure." He also told them that the cards "were to establish a union"; that "after we receive a majority of cards . . . we would write a letter of demand to the Company asking for recognition and if the Company did refuse then the cards would be submitted to the Board for an election." Johnnie Walls signed an authorization card on August 19, 1967, at the request of Organizer Wuichet. See G.C. Exh. 14-54. He also induced two other employees to sign. See G.C. Exh. 16-13 and 16-14. Among other things, according to Johnnie, Wuichet mentioned to Walls that JACKSON CHAIR CO., INC. 241 the cards could be used for an election , and Walls "thought" and "understood" they were for an election and that there had to be an election . Although almost illiterate, Walls was able to sign the card after Wuichet told him "what the purpose of the card was." As I have elsewhere credited Wuichet that he told all employees whom he personally solicited that he said the purpose of the cards was to obtain recognition and, failing that, to have an election , I find that Wuichet also told this to Walls. Hence , I find that the card of Walls is valid. James Downs , a hand sander, signed a union card on October 25, 1967 (see G.C. Exh. 16-8) at the request of employee Junior Hafley . Downs "can't read ." Although the card was not read to Downs , I find that this is not fatal, as I find that Downs understood its contents. Therefore, I find that the card signed by Downs is valid. Carl Derringer , a tufter, signed a union card on August 1, 1967. See G.C. Exh. 14-14. I find that the card of Derringer is valid as the record is bare of evidence that it was obtained improperly. B. Interference, Restraint , and Coercion Respondent' s wage policy is determined by a committee composed of President James E . Jackson , department heads, and the general superintendent . Increases in relevant part are governed by state and federal minimum wage laws. Generally a wage increase of 5 to 10 cents an hour is given two or three times a year - about spring, summer, and late fall . On November 17, 1967, at an assembly of employees, President Jackson informed them of an increase in wages effective on Wednesday, November 8. See G.C. Exh. 6. At this same meeting he told employees that he received " termite news" from the Union that it had a majority and requested the Company to negotiate. Then he quoted from a letter he wrote to the Union explaining why it would not be recognized. Continuing, he expressed opposition to the Union, and also stated the reasons "why we don' t want a union here." Jackson testified that the November 17 wage increases were given "to be in shape for the new minimum wage which went into effect in February ' 68," and "to meet [our] competition." He also testified that Respondent gave one or two general increases in 1967 prior to that of November 17. In August, 1967, President Jackson called a meeting of employees. Employee Johnnie Walls, a finish helper, was directed to attend it by his floor boss, Forest Wilson. Walls also attended another meeting of employees in November, 1967. In November Walls received a 15-cent pay raise . He also received a 5-cent raise after he signed a union authorization card dated August 19, 1967, and in evidence as G.C. Exh. 14-54. Employee James Downs, a hand sander, worked under the supervision of Forest Wilson who hired him. I find that Wilson is a supervisor under Section 2(11) of the Act. At the time Downs was hired, (he estimates that he was hired "about a year" before he testified on August 13, 1968) Downs spoke to Wilson. During the conversation Wilson asked Downs how the latter felt toward a union. When Downs replied he did not know, Wilson added that if he knew that Downs was for a union Wilson would not hire him . Since the charge was filed on February 8, 1968, and it was stipulated that Downs was hired on October 10, 1967, 1 find that the charge was timely filed as to this conversation. Employee Carl Derringer testified that in November, 1967, employees were told that a raise would be given "two different ways." Those on piece work, according to him, would have their average raised, while those paid by the hour would receive an increase in the hourly rate. President Jackson twice spoke to the assembled employees, first on August 10 and then again on November 17, 1967. His remarks on each occasion are set forth in G.C. Exh. 5 and 6, respectively. He also sent a letter to all employees on January 25, 1968. Its contents are set forth in G.C. Exh. 7. In his August 10 speech (G.C. Exh. 5) Jackson mentions, among other things: We've been quite concerned about ... all our people . . . We've shown it in our, some of you have used our small loan department, that comes in handy ... That's something that would have to go, if the Union came in . .. Every now and then, it's necessary to bail somebody out ... But we couldn't do that, once the Union steps in front of us. If [the Union ] should win an election here ... you start all over from scratch . You wipe everything off the table, wages, fringes, everything and start bargaining .... Since I find that the remainder of the August 10 speech , the entire remarks of November 17, and the letter of January 25 do not constitute threats of reprisals, their text need not be here narrated. In substance they indicate (1) that the personal relationship between management and employees would be upset by the Union, and (2) that Respondent opposes unions . Since they are devoid of threats, no unfair labor practice is disclosed thereby. K. 0. Steel Casting, Inc., 172 NLRB No. 216. N.L.R.B. v. Finesilver Manufacturing Company 400 F.2d 644 (C.A. 5), is distinguishable. However, the above quoted language from the speech of August 10 is coercive because it contains threats of reprisals if the Union is selected as their bargaining representative by the employees . Accordingly, I find that it transgresses Section 8(a)(1) of the Act. C. The Refusal to Hire Albert F. Hill Towards the first part of November, Albert F. Hill applied to Foreman Crowe for a job with Respondent, telling Crowe that he, Hill, was 47, and had heard that the Company would be needing some more employees in the near future. Crowe replied that Respondent "was planning on it." When Crowe asked if Hill could run machinery, Hill replied in the negative. Although Crowe observed that he preferred someone with experience, he also said that he would be interested in hiring Hill and giving Hill "a trial at it" notwithstanding Hill's age . Thereupon Hill told Crowe to "send me word" by employees Denver Durham or Charlie Durham if he needed Hill; and Crowe replied that he would, and that it was not necessary at that time for Hill to submit a written application. Both Denver and Charles had previously told Hill that Respondent was planning on hiring and Hill so informed Crowe on this occasion. Not hearing from Crowe by March, 1968, Hill obtained employment elsewhere. During their conversation the subject of the Union somehow arose . This caused Crowe to ask Hill if the latter belonged to the Union. Hill replied that he did, and that he had been a member of it for 18 or 20 years. Denver Durham , an employee in Respondent 's mill, testified that Foreman Junior Crowe, in the fall of 1967, 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told him there would be job openings in the millroom. This caused Denver to ask Crowe to give Hill a job. Crowe replied by asking Denver to have Hill come in for an interview with Crowe. Later, when Denver noticed that new men were hired to work in the millroom , he asked Crowe If Hill would be put to work. Crowe replied in the negative, stating that he felt that Hill "cannot do that kind of work." Between November 7, 1967, and April 30, 1968, Respondent hired 24 new employees . See G.C. Exh. 17. D. The Refusal to Rehire Lawrence Ray Foley Foley was first hired by Respondent about the first part of April 1967, as a finish or bench helper . On July 22, 1967, he was discharged for not working on Saturday. Around the first part of September 1967, Foley applied, by telephone, to Floor Boss Forest Wilson to be reemployed by Jackson Chair Co. I find that Wilson is a supervisor under the Act. Wilson was his supervisor when Foley had previously worked there. Foley told Wilson that he, Foley, needed a job badly. Wilson replied that Foley should come to see Wilson to obtain work when he , Foley, was able to work. At the time, Foley was a patient in the State Hospital as a result of injuries received in an automobile accident. A month or so later, having in the meantime voluntarily left the State Hospital, Foley visited personally at Wilson's home where Foley had come pursuant to Wilson's invitation to see Wilson when Foley was able to work. When Foley requested to be hired Wilson replied, "Whom are you going to work for? Me . . . or Johnnie Walls . Johnnie's trying to get a union." Wilson finally told Foley to see Wilson 2 weeks later at Respondent's factory. About 2 weeks later Foley called upon Wilson at Respondent's factory and again asked for a job, reminding Wilson that the 2 weeks had expired. Wilson replied, "I've still got the same trouble . I've got to wait until this union business blows over," and suggested that Foley seek work at American Greeting Card. Foley has not since been rehired by Respondent. He was discharged from the State Hospital about 2 weeks after he called on Wilson at the factory. Between November 7, 1967, and April 30, 1968, Respondent hired 24 new employees. See G.C. Exh. 17. V. RESPONDENTS EVIDENCE A. President Jackson's Testimony President Jackson testified that Respondent has a policy of not employing untrained workers over 40 years of age, and that deviations from that policy have "always proven bad." However, Respondent hired Huey Coffman, who is 50 or 60 years old, "subsequent to the application of [Albert F.] Hill for employment." He also asserted that the Company has a "general policy of wage raises," and that pursuant to it general raises in hourly pay were granted to employees on March 17, 5 cents; July 21, 10 cents; and October 6, 1966, 5 cents. In 1967, raises in the hourly rate were given on January 26, 5 cents; June 8, 5 cents; September 27, 5 cents; and November 8. Another raise was instituted in May 1968 , 5 cents. Workers paid by the piece also received additional raises at the same time . This was ascertained as to each such worker by assigning to him a "new average . . . based on [his preceding ] 3 month earnings." The November 8, 1967, raise "varied" from 5 to 25 cents an hour because it was adopted not only to prepare for the higher minimum wage becoming effective on February 1, 1968, but also "to meet local competition" of other area manufacturers, such as American Greeting Card. That November raises also "varied" to maintain "differentials" for skilled employees. Although Respondent hired 24 new employees between November 7, 1967, and April 30, 1968, as disclosed by G.C. Exh. 17, 8 of said new hires "had a prior employment . . . as a labor union member ." Jackson explained, however, that this meant that such employees worked at another plant which was unionized and operated "under union contract," but he did not know whether these eight employees actually belonged to a union at such plant. In the past unions have sought to organize Respondent. About 1954 or 1955 another union, trying to organize Respondent's plant, withdrew its petition for an election, while still another union in 1960 lost an election "by approximately two to one." Yet, on each of those two occasions the Union claimed to represent a majority. B. Forest Wilson's Testimony Forest Wilson is Respondent's foreman of assembly and finishing. I find he is a supervisor under Section 2(11) of the Act. On October 10, 1967, he suffered a heart attack. Lawrence Foley formerly worked under him but was dismissed because he never would work on Saturday and because on other days he "wasn't punctual or whatever you call it." After leaving the Company, Foley was injured in an automobile accident. Following said accident Foley telephoned Wilson and applied for work with Respondent. At the time Foley was a patient in the Kentucky State Hospital, " a mental hospital." Later Foley came to see Wilson at the latter's home and asked for a job. Wilson replied that he could not hire Foley yet, but advanced no reason therefor. During the conversation, Wilson asked Foley "if he [Foley] was going to work for me if I hired him back or Mr. Walls." According to Wilson, Foley had "seemed to hang around with Walls [another employee] like he depended to take care of him or something," when Foley and Walls both worked in Respondent's finishing room. (Walls testified as a witness for the General Counsel and engaged in union activity at Respondent's plant.) Some time after this Foley personally called on Wilson at Respondent's plant. Wilson, recovering from his heart attack, had come to the factory "for a few minutes," and Foley saw him at this time. Although Foley asked for a job, Wilson told him that he could not rehire Foley yet. Wilson felt Foley was not able to return to work, but did not so state to Foley. Wilson finally testified that he did not want to rehire Foley because (1) Foley "didn't prove out the first time," and also (2) Foley did not mention a conviction for an earlier theft. Nevertheless, although Wilson knew about the conviction shortly after Foley was first hired, Wilson did nothing about it. Wilson also spoke to employee James Downs when Downs applied for a job at the plant. At that time Wilson "probably" told Downs "it was a nonunion shop, which I intended to tell all people." Later, on October 10, Wilson hired Downs. JACKSON CHAIR CO., INC. 243 C. Evidence As to the Union's Majority James Stanley Rice is a deaf-mute employed by Respondent . He signed a Union card on September 5, 1961 (see G.C. Exh. 16-21) at home, and then mailed it in. Without reading the card he signed it "to get rid of hearing from " Union organizer Wuichet. Rice "was not interested ." Wuichet talked to Rice about the union at Jackson Chair but, unable to read Wuichet's lips, Rice did not understand everything Wuichet said. I find Rice's card is valid and should be counted in ascertaining whether the Union had a majority . This is because I find that Wuichet did not use coercion or misrepresentation to induce Rice to sign the card. Phil-Modes, Inc., 159 NLRB 944, 955. The fact that Rice did not read the card is not fatal since he had ample opportunity to read it after Wuichet spoke to him, and this card is clear on its face. McEwen Manufacturing Company, 172 NLRB No. 99; Levi,Strauss & Co. 172 NLRB No. 57; Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432, 438 (C.A. 8); N.L.R.B. v. Cumberland Shoe Corporation, 351 F.2d 917 (C.A. 6). Even if Rice signed to get Wuichet off his back , such annoyance will not negative the overt act of having voluntarily and freely signed a card . See Joy Silk Mills v . N.L.R.B., 185 F.2d 732, 743 (C.A.D.C.), cert. denied 341 U.S. 914. Matt Howard, another deaf-mute employed by Respondent, signed a union card on August 17, 1967, (see G.C. Exh. 14-21) at his home at the request of Union Organizer Wuichet. According to Howard, Wuichet told him he, Howard , would lose his job if he did not sign it. So he signed it. On cross-examination Howard testified that he "did not understand what [Wuichet ] was telling him," and that he cannot read. It is my opinion, and I find , that Wuichet did not tell Howard that the latter would lose his job if he did not sign . Thus, I do not credit Howard on this aspect of his testimony . Further, I find that Howard cannot read, that the card was read to him, and that, with a hearing aid, Howard was able to understand Wuichet. Since it was read to him , I find that the card is valid and can be included in computing the Union's majority . N.L.R.B. v_ Texas Electric Co-Operatives, Inc., 398 F.2d 722 (C.A. 5), is therefore distinguishable . I also find that Howard was wearing a hearing aid at the time and that , with it in operation , he was able to understand Wuichet , who read the card to him; and that no fraud , misrepresentation, or coercion was imposed on Howard to induce him to sign the card . Thus, I credit Wuichet that he read the card to Howard and that Howard replied that he understood Wuichet. Another employee whose card is in issue is William Fletcher, who signed one on August 29, 1967. See G.C. Exh. 14-15. He signed it at home, at the solicitation of Union Organizer Wuichet, because Wuichet pestered him. Wuichet also told him that Wuichet needed "51 percent to come in and take an election . . . to get in and have an election and get a union." Fletcher did not read the card before signing it, although all the handwriting on the card is in his own handwriting. Thus, after the printed word "SIGNED" and above the printed word "Name" Fletcher wrote his name; above the printed word "Date" he wrote in "8-29-67"- above the printed words "Address ... City ... State" he wrote in "364 College St., Danville, Ky."; after the printed word "Company" he wrote in "Jackson"; and following the printed word "Department" he wrote "Up." It is incredible that Fletcher did not read the card, for patently he could not have filled in the blank spaces without reading the printed matter. I do not credit any of his testimony except his statement that he filled in the spaces on the card. Fletcher also testified that he did not know what unions do "on behalf of employees." It is my opinion , and I find, that Fletcher's card is valid because it was voluntarily signed , it is clear on its face, it was not obtained by coercion or misrepresentation, and he has not asked to revoke or otherwise cancel it. Since he had had plenty of opportunity to revoke his card, his failure to do so may not be disregarded. The card of Moses Coulter, a janitor, is also attacked as invalid. He signed one on September 26, 1967. See G.C. Exh. 14-9. Since he cannot write he placed an X on the card and had his wife sign his name for him. Coulter testified that he did not want to be bothered by Wuichet and signed "to get rid of" Union Organizer Wuichet. Although Coulter said he was not for the Union, Wuichet told him to sign it and his , Coulter's, name "wouldn't be even mentioned." However, Coulter testified that he knew who Wuichet was and that Wuichet was trying to organize the employees at Jackson Chair. I find that Coulter's card is valid since it is clear on its face and he was not prompted to sign by coercion or misrepresentation . The fact that Coulter signed to get rid of Wuichet does not contaminate the card, as I find that Wuichet did nothing to bother Coulter, as Coulter contends. Of course, it is serious that Wuichet did not read the card to Coulter, but Coulter nevertheless asked his wife, who is literate, to sign it after she "told me [Coulter] to go ahead and sign." I find that Coulter was aware of the text of the card, that he knew and understood its contents, and, therefore, the failure by Wuichet to read the card to Coulter is not dispositive. Therefore, N.L.R.B. v. Texas Electric Co-Operatives, Inc., 398 F.2d 722 C.A. 5, is not controlling on these facts. Employee Donald Smothers, a springer, signed a card on September 13, 1967. See G.C. Exh. 14-42. He signed it at home at the request of Union Organizer Wuichet, who told him the card was "to get a majority to get the election in the Union . . . an election for the Union." However, Wuichet also explained to Smothers the benefits of a union and that the Union would represent Smothers for bargaining purposes at the Company. I conclude and find that the card of Smothers is valid. Although Smothers testified that Wuichet asserted the card was for an election , I find, crediting Wuichet, that Wuichet said that the purpose of the card was to obtain recognition, and that an election would be held only if the Employer denied recognition based on a card check. Hence I find no misrepresentation which will vitiate this card. Othel L. Browning, an upholsterer at Jackson Chair, signed a card at his home on August 30, 1967. See G.C. Exh. 14-4. He did so upon the solicitation of Union Organizer Wuichet, who told Browning "what the Union did for people and stuff like this." Although Browning replied that he could not see how the Union could help him at all, Wuichet asked him to sign the card "so that we could get a majority of cards and have an election." Browning "never read the card." Mrs. Browning, who was present, testified that Wuichet said "something over 50 percent" was needed to "bring about an election." Browning's card is valid, and I so find, Merely because 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he did not read it is not fatal, since it is clear on its face and he was not prevented from reading it if he wished. Further, I find no misrepresentation, although Wuichet mentioned an election. This is because I credit Wuichet that he told all those he solicited that the purpose of the card was to obtain recognition, and that an election would be sought only in the event recognition was denied. N.L.R.B. v. H & H Plastics, 389 F.2d 678, 682 (C.A. 6). See N.L.R.B. v. Atco-Surgical Supports, Inc., 394 F.2d 659 (C.A. 6). Employee Carlos R. Kersey signed a card on October 20, 1967, at his home at the request of Union Organizer Jack Wuichet. See G.C. Exh. 14-25. Wuichet told him he wanted the card signed so that Wuichet "could get 50 percent of the people over there, or over 50 percent to, so we could have an election of the Union." Wuichet also told Kersey what the Union could do for him, and that the Union would "help [Kersey] out" if Kersey signed the card. Kersey also testified that he signed the card "to get the Union in." Kersey's card is valid, and I so find. Patently the phrase "to get the Union in" is capable of conveying the meaning of recognition based on a card count. In any event I credit Wuichet that he told those he solicited that the purpose of the card was to obtain recognition, and that an election would be applied for only in case such recognition was refused. Hence I find no misrepresentation was made to Kersey in order to obtain his signature. Boyd Wesley, a tufter at Jackson Chair, signed a card at his home on September 22, 1967, at the request of Union Organizer Wuichet. See G.C. Exh. 14-56. Wuichet told him that a "certain percentage" was needed in order to "get an election held at the factory." He did not "entirely" read the card, but filled in the blank spaces himself. Further, Wuichet also talked about what the Union would do for Wesley if it got into the plant. However, I credit Wuichet that he told employees signing cards that their purpose was to obtain recognition in the first place, and that an election would be held only if recognition was withheld. Since Wuichet did not say that an election was the only,purpose of the card, I find that its purpose was not misrepresented . Accordingly, I find that Wesley's card is valid and should be counted in computing the Union's majority. Shipping department employee Harold Matherly signed a union card, without reading it, at home on October 20, 1967, at the request of Union Organizer Jack Wuichet. See G.C. Exh. 14-32. But he filled in the empty spaces on the card. Wuichet told him that the purpose of the card was "to get enough percentage to bring it to an election or vote." Matherly also testified that Wuichet wanted the card signed to get the Union in the plant. I find no misrepresentation was made to Matherly, that the card is clear and unequivocal on its face, and that he read the card or he would not have known what to insert in the blank spaces. In addition, I credit Wuichet that he mentioned that the purpose of the card was to obtain recognition, and, failing that, an election would be held. Accordingly, I find that Matherly's card is valid. Another card contested by Respondent is that of McKinley Carpenter, an upholsterer . See G.C. Exh. 14-5. He signed it, without reading it, at home on September 9, 1967, upon the solicitation of Union Organizer Jack Wuichet, who told him that 51 percent was needed to get an election . Although he did not read the card, Carpenter personally filled in the blank spaces on it. I find that Carpenter's card is valid and that it should be counted. This is because I credit Wuichet that he told employees the cards were to obtain recognition, and that they would be used to obtain an election only if the Union was unsuccessful in gaining recognition. Check-out man Kenneth Earl Tanner also signed a union card. See G.C. Exh. 14-49. He did so at home on October 21, 1967, when Union Organizer Wuichet brought it there. Wuichet told him that Wuichet "was trying to get a majority of the cards so we could, so it would go to a vote." Although Tanner claims he did not read the card, he admits that he filled in the blank spaces. On cross-examination Tanner testified that he did not know "what a union is all about," but added that Wuichet said the Union wanted to represent the employees at Jackson Chair Company. Since I credit Wuichet, I find that he told employees the purpose of the cards was to gain recognition, and that an election was to be resorted to only if recognition was denied. Accordingly I find no misrepresentation was made to Tanner. I further find that the card is clear and unequivocal on its,face, and that it is not rendered nugatory because Tanner did not read it. Hence, I find that Tanner's card is good and will be counted. The card of Carlos Tillett is also questioned by Respondent. See G.C. Exh. 14-48. Carlos signed it at the home of employee Carl Derringer, where a group of employees "that was interested in the Union" had met and were addressed by Union Organizer Wuichet. Among other things, Wuichet said he "had to have 51 percent of the cards signed before he could bring it to an election." However, Wuichet also explained the advantages of a union and asked-those present to try to obtain signed cards from other employees. Tillett did successfully solicit employee Mildred Johnson to sign a card. Although he did not read the card he signed, Tillett nevertheless filled in the blanks thereon himself. It is my opinion, and I find, that Tillett's card is valid. Although I find that Wuichet mentioned an election to Tillett I find that he also stated, crediting Wuichet in this respect, that Wuichet said the purpose of the card was to obtain recognition , and that an election would ensue only if recognition was denied. Hence, I find that no misrepresentation was made which will vitiate the plain meaning of the words on the card which Tillett signed. Still another card disputed by Respondent is that of employee Fairley Holt. See G.C. Exh. 16-12. He signed it on October 6, 1967, at Gene Holt's home at the request of Holt, a first cousin. Wuichet was not present. A few days previously, Union Organizer Wuichet had told him the purpose of the card was "to have a certain percent to bring the thing to an election." Although Holt testified that he did not read the card before signing it, he swore in an affidavit that he did read it when interviewed by an NLRB agent investigating this case. See GC Exhibit 18. In his affidavit Holt also swore that he "signed the card because I wanted a union in the plant." I find that Holt's card is valid. Not only did Holt swear in an affidavit that he signed the card to get a union in the plant, but he also in said affidavit swore that he read the card. I find that both statements in the affidavit are true and do not credit his oral testimony inconsistent with said finding. Even though I find that Wuichet mentioned an election to Holt, I find that Wuichet told Holt that the purpose of the card was to obtain recognition, and that an election would be held only in the event recognition was not attained. Hence, I find no misrepresentation which JACKSON CHAIR CO., INC. 245 will destroy the validity of Holt's card. Phyllis Yeast signed a card on October 26, 1967. See GC Exh. 14-57. Without reading the card, she signed it at her home upon the solicitation of Union Organizer Wuichet after he told her that he "had to have a certain percentage before it could be brought to a vote ... it was strictly for an election . [the card] would be strictly confidential." Wuichet also gave her reasons why the employees would benefit from a union at Jackson Chair Company and said that he wanted the Union to represent the people at Jackson Chair. I find that Yeast's card is valid, as I find that no misrepresentation was practised on her. This is because I find that Wuichet told her that the card would be used for recognition, and if unsuccessful in that endeavor, then for an election. Hence, I credit Wuichet and do not credit Yeast to the extent that her testimony is inconsistent with his. I credit Yeast that Wuichet told her the card would remain confidential. But I find that nothing in the record discloses that he broke this confidence. Hence, this last assurance of Wuichet's does not and amine the vitality of the card. Steele Apparel Co., Inc., 172 NLRB No. 95. Employee Martha Wilkinson sired a card on November 4, 1967. See G.C. Exh. 14-53. Wuichet, who gave her the card, said it was "to get an election at Jackson Chair." Wuichet also told her about what the Union would do for employees, and asked her to sign because "he wanted the Union to represent the employees out there." Although she did not read the card before signing , she filled in its blank spaces. Her husband had previously signed a similar card for this same union. I find that Wilkinson's card is valid because I find that no deception, fraud, or misrepresentation was used, even on her own testimony. However, I also credit Wuichet that he told all those he solicited that the card would be used for recognitional purposes and, failing that, for an election. In fact Wilkinson's own testimony may be so construed for she asserted that although Wuichet mentioned an election, he also wanted her to sign because he wanted the Union "to represent the employees." Bernard H. Honaker directed his wife to sign a card for him in his presence and she did so on August 14, 1967. See G.C. Exh. 16-14. He did not read the card. This card had been handed in blank to Honaker at work by fellow employee Johnnie Walls. After it was signed, Honaker returned it to Walls. According to Honaker, Walls told him the purpose of the card was to get an election and "you will have another say somewhere along the line where you can say `yes' or `no' when we have the election." I am unable to credit Honaker that Walls told him that the purpose of the card was to have an election. Therefore, I reject that part of his testimony. Further, I do not credit Honaker that he did not read the card. Although he testified that he had the card in his possession for 3 or 4 days before he told his wife to sign it, it is inconceivable that during this period he did not peruse its language. In any event, I do not credit Honaker as above narrated because I do not believe him when he says that he did not read the card and that Walls told him that the purpose of the card was to obtain an election. Further, I find that no misrepresentation or coercion was practised on Honaker, that the card is plain on its face, and that he signed it voluntarily and freely. Accordingly, I find that Honaker's card is valid. Employee Elmer Gene Holt signed a Union card on October 3, 1967, at home at the request of Union Organizer Wuichet..See'G.C. Exh. 14-18. Holt read the card. Wuichet told Holt that "he needed a certain percent over 50 percent . . . of people to sign these cards so they could take it before something and get an election . . . and signing this card didn't mean anything ... [It would be confidential] . . . he said was trying for ... at least 70 percent." However, Holt also testified, "I dont remember exactly what all he told me." In his affidavit to the Board, Holt swore that he signed the card "to get a union in the plant, that was my purpose. I read the card before signing it." (See G.C. Exh. 19). I credit Holt in all respects except that I do not credit him as to what Wuichet told him. This is because (a) I credit Holt's affidavit, which contradicts his oral testimony that Wuichet assured him that the card's purpose was to get 4n election, and (b) I credit Wuichet that he told employees that the card was intended to obtain recognition of the Union and, failing that, it would then be used for an election. Hence, I find that no coercion or misrepresentation was practised upon Holt. Further, I find the card is unambiguous on its face and that Holt read it before signing it. Accordingly, I find that Holt's card is valid and should be counted. Robert Dawson also signed a union card. See G.C. Exh. 14-12. He signed at home on August 8, 1967, upon the solicitation of Union Organizer Wuichet, who told him its purpose "was to get a vote." Additionally Wuichet told him "it wouldn't even be known if you didn't want it to on these cards here." Although Dawson did not read the entire card, he did read the first two lines beginning with the words, "I do hereby designate and authorize ... " After this Dawson attended a meeting at Wuichet's motel room where several other employees attended. The union campaign and union benefits were there discussed. In my opinion Dawson's card is valid, and I so find. Although I credit Dawson that Wuichet told him the card would remain confidential, I find that this confidence was not broken. Hence, this ground advanced for attacking the card is not well taken. Steele Apparel Co., Inc., 172 NLRB No. 95. Further, I find that although Wuichet mentioned a "vote," as Dawson testified, Wuichet also mentioned (as I credit Wuichet on this) that the purpose of the card was to obtain recognition, and that an election would result only in case recognition was denied. In addition, I find that Dawson read the significant part of the card designating the Union to "act as my representative for the purpose of collective bargaining," and that the card itself is clear and unequivocal. Accordingly, I find that no deception or misrepresentation occurred which will nullify the effectiveness of Dawson's card. VI. CONCLUDING FINDINGS AND DISCUSSION A. As to the Refusal to Bargain In order to prevail on this aspect of the case, the burden of proof is on the General Counsel of the NLRB to establish that (a) on November 8, 1967, the Union had a majority of cards in an appropriate unit and (b) the Respondent did not entertain a good faith doubt of that majority. 1. The appropriate unit Since no dispute exists on this issue , I find that an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act is composed 246 of DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees, excluding office clerical emplpyees, professional employees guards, and supervisors 0 dofip¢d in the Act Further, I find that by letterrid November 7 1967, the Union demanded recognition of Respondent as the collective bargaining agent of Respondent 's employees Respondent received said demand the next day It is my opinion, and I find, that this constitutes a demand for recognition in an appropriate unit because it adequately identifies the employees involved Respondent does not argue to the contrary 2 The Union' s majority It has been stipulated, and I find, that 137 employees were included in the above appropriate unit on November 8, 1967, when Respondent received the Union's demand for recognition These persons are enumerated in G C Exh 2 There are in evidence 81 cards (G C Exh 14-1 to 14-57 and 16-1 to 16-24) which the Union had in its possession and offered to Respondent on November 8, 1967, for inspection by a "mutually acceptable third person " See G C Exh 3 Patently these 81 cards constitute a majority unless a sufficient number of said cards are contaminated (i e obtained by coercion, fraud deception, or misrepresentation) so as to destroy that majority The burden of proving that a majority of the cards is valid and free of taint is upon the General Counsel of the NLRB In another part of this Decision I have passed upon the validity of several cards and have found them to be valid In addition, I find all the other cards valid so that I now find that all 81 cards should be counted in determining the number of valid cards In making this finding as to the cards I credit Union Organizer Wuichet, who testified that he spoke to all card signers, and that he told such subscribers that the purpose of the cards was to obtain recognition for the Union from Respondent, and that the cards would be used to obtain an election only if Respondent failed to grant recognition Respondent's evidence not consonant with this finding is not credited I recognize that all the card signers testifying for Respondent asserted that Wuichet mentioned to them either an election or a vote Nevertheless, this impressive array of witnesses does not cause me to discredit Wuichet for three reasons a I was impressed with the integrity of Wuichet on the stand Demeanor thus is laden with probative force I do not mean to intimate that Respondent's witnesses lacked integrity but I do find that their demeanor is not adequate to overcome that of Wuichet b Some of Respondent's witnesses were unable to recall everything Wuichet said to them, but did remember that he alluded to an election or a vote Thus, these employees may not be said affirmatively to contradict Wuichet's positive and categorical assertion that he mentioned an election only if recognition could not be obtained when the cards were presented to Respondent Thus it is consistent with the testimony of these witnesses that Wuichet said that the purpose of the cards was to obtain recognition, but said witnesses have been unable to recall this c Some of Respondent' s witnesses flatly insisted that Wuichet said the purpose of the card was to obtain an election I do not credit these witnesses that this is all he said about the purpose of the cards For I credit Wuichet that he mentioned an election only as an alternative to be resorted to if Respondent denied recognition based on the cards He certainly said this at meetings of the Union held for employees, and I so find There is no reason why he should change his sales pitch when talking to these same employees- individually, if he did, it is reasonable to expect that they would so testify But none testified to this double effect On the question of coercion some employees testified that they signed only to be free from being bothered by Wuichet But I find that such "bothering" or "pestering" amounted to no more than visits at homes of employees Absent improper conduct by Wuichet (and the record fails to reveal improper conduct) such home visits do not constitute coercion and I so find Accordingly, I find that no card may be disregarded solely by reason of Wuichet's visits to the homes of employees Employee Matt Howard, a deaf-mute, testified that he signed a card because Wuichet told him that he, Howard, would lose his job if he failed to sign As found above, I have not credited Howard This is because I rely on demeanor and also because Howard testified that he cannot hear or talk But I credit Wuichet that Howard can hear somewhat with a hearing aid (which he wore when Wuichet solicited his signature) and can talk a little Since Howard misstated his ability to hear and speak, I am not inclined to credit him as against the forthright testimony of Wuichet In addition if Wuichet so threatened Howard, it would seem that he would adopt the same tactic to induce Rice, another deaf-mute, to sign But Rice did not testify as to any such threat This has some significance Finally, it is desirable to point out that in minor part I have not credited Respondent's witnesses as to cards because not one of them has sought to recall his card If, as these witnesses testified, Wuichet deceived them by mentioning only an election, it is difficult to understand why they made no effort to revoke their cards when they discovered, as they claim, that their cards would be used to obtain recognition Whether this constitutes ratification of the card is something I do not pass on But I do rely on such acquiescence in minor part in resolving questions of credibility In analyzing the 81 cards I have not overlooked cases like N L R B v Swan Super Cleaners Inc 384 F 2d 609 (C A 6) N L R B v Ben Duthler Inc 395 F 2d 28 (C A 6), NLRB v Logan Packing Co 386 F 2d 562 (C A 4), N L R B v Sehon Stevenson & Co Inc 386 F 2d 551 (C A 4), and NLRB v S E Nichols Co 380 F 2d 438 (C A 2) In my opinion they are distinguishable on their facts More in point are N L R B v Delight Bakery 353 F 2d 917 (C A 6), McEwen Manufacturing Company 172 NLRB No 99 Levi Strauss & Co, 172 NLRB No 57, and NLRB v Gotham Shoe Manufacturing Co 359 F 2d 684 (C A 2) See also N L R B v Winn-Dixie Stores Inc 341 F 2d 750, 755 (C A 6), cert denied 382 U S 830, holding that an employee's thoughts or afterthoughts as to why he signed a card, and what he thought that card n.eant cannot negate the overt act of signing a card designating a union as a bargaining agent This last case explains why, on objection, I excluded Respondent's evidence as to the thoughts of several employees who subscribed to Union cards JACKSON CHAIR CO., INC. 3. Respondent's doubt of majority Even when a union has in fact attained majority status on the basis of signed cards, an employer need not recognize or bargain with it if the employer in good faith questions or doubts that majority. Aaron Brothers Company of California, 158 NLRB 1077, 1078. Respondent maintains that it entertained a good faith doubt of majority when it received the Union 's demand for recognition on November 8, 1967 . This doubt is expressed in a letter by the Respondent to the Union dated November 14, 1967 . See G .C. Exh . 4. On this issue the burden of proof is on the General Counsel to establish that the Employer in bad faith declined to recognize and bargain with the Union. N.L.R.B. v. Ben Duthler, Inc., and Family Foods, Inc., 395 F.2d 28 (C.A. 6); John P. Serpa, Inc., 155 NLRB 99, 100; Aaron Brothers Company of California, 158 NLRB 1077, 1079. It is my opinion, and I find, that Respondent did not have a good faith doubt of majority . This finding is based on the entire record and the following additional findings of fact: (a) Respondent committed unfair labor practices contemporaneously with the Union's m request for recognition . This indicates a disposition to dissipate the Union's majority. Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.), cert. denied 341 U.S. 914; American Cable Systems, Inc., 161 NLRB 332, 335. I consider N.L.R.B. v. Logan Packing Co., 386 F.2d 562 (C.A. 4), and N.L.R.B. v. Ben Duthler, Inc., 395 F.2d 28 (C.A. 6), to be distinguishable on their facts. (b) Respondent did nothing about , the cards. Thus it "chose not to learn the facts [and] it took the chance of what they might be." James H. Matthews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 8). See Irving Air Chute v. N.L.R.B., 350. F.2d +176, 182 (C.A. 2). It is therefore immaterial that the Union did not proffer the cards to Respondent, for the Union did offer to submit them to a third person acceptable to Respondent. N.L.R.B. v. The Sinclair Company, 397 F.2d 157 (C.A. 1). To overcome the General Counsel 's establishing a prima facie case of want of good faith in rejecting the Union's demand , Respondent offered evidence of good faith. I proceed to consider this evidence . In Hercules Packing Corporation , 163 NLRB No. 35 , the Board ruled that a Trial Examiner who considers and evaluates a Respondent's evidence of good faith has shifted to Respondent "the burden . of coming forward with proof that it had a substantial and reasonable ground for doubting the validity of the Union 's majority showing." Notwithstanding ' that ruling, and without modifying the burden of proof in this case, which is on the General Counsel, I proceed to evaluate Respondent 's ed dence of good faith offered to rebut the General Counsel 's prima facie case. Initially Respondent asserts good faith as a defense. However , good faith is not established by merely asserting it. N.L. R.B. v. Superior Sales, Inc., 366 F.2d 229, 237 (C.A. 8); Johnnie's Poultry Co., 146 NLRB 770, 773, enforcement denied 344 F.2d 617 (C.A. 8). Hence, such averment alone does not rebut the General Counsel's prima facie case. N.L.R.B. v. The Sinclair Company, 397 F.2d 157. See N.L.R.B. v. Arco-Surgical Supports, 394 F.2d 659, 660-661 (C.A. 6). Respondent further claims good faith by showing that, in the past, one union withdrew a petition for an election and another union lost an election . In my opinion these 247 two events, while relevant on the issue of good faith (N.L.R.B. v. Fashion Fair, Inc., 399 F.2d 764 C.A. 6) are insufficient to refute the General Counsel 's prima facie case. In this connection I have examined the two events in the light of Respondent's serious unfair labor practices and find that such unfair practices outweigh an inference of good faith because they evince Respondent's desire to destroy the Union's majority and Respondent's rejection of the collective bargaining principle . Neither Peoples Drug Stores v . N.L.R.B., 375 F.2d 551 (C.A. 6), nor N.L.R.B. v. Fashion Fair, Inc., 399 F.2d 764 (C.A. 6), compels a contrary conclusion. Finally, although not clearly articulated in Respondent's argument, President Jackson in his speeches stated that he had heard of threats to employees by the Union to persuade them to sign cards . But these are unsubstantiated by any testimony of Jackson or any other Respondent witness other than employee Matt Howard, who testified that Union Organizer Wuichet threatened Howard with loss of his job if he did not sign a card. But I have not credited Howard on this. Even if I did credit Howard, I find that this one isolated instance of threat, coercive in nature, does not afford a basis which warrants a bona fide inference that the Union did not enjoy an uncoerced majority, especially since there is no evidence that it came to Jackson's attention. In this connection it is significant that Jackson did not mention that even one of the employees allegedly threatened expressed any disaffection with , or attempted to withdraw from, the Union . Jas. H. Matthews Co. v. N.L.R.B., 354 F.2d 432, 438 (C. A. 8); Moore's Sea Food Products, 152 NLRB 683, 684; Tinley Park Dairy Co., 142 NLRB 683, 686 ; Conren, Inc., 156 NLRB 592. Thus I find no basis for Jackson's entertaining a reasonable belief that Union threats occurred which vitiated the vitality of cards signed by employees. It follows, and I find, that Respondent was under an obligation to recognize and bargain with the Union, and that by refusing to recognize and bargain with it Respondent violated Section 8(a)(5) of the Act. N.L.R.B. v. Uniform Rental Service, Inc., 398 F.2d 812 (C.A. 6), does not require a contrary result , for there the court found no'uvidence of bad faith in doubting the Union's majority. Further, I have found that the Union enjoyed a majority on November 8, 1967, when it demanded recognition. Hence, the wage raises of November 17, 1967, admittedly made unilaterally without notifying or consulting with the Union, amount to a refusal to bargain which also violates Section 8(a)(5) of the Act. U-Tote M of Oklahoma, Inc., 172 NLRB No. 21. B. As to Interference, Restraint, and Coercion 1. Threats of Reprisals As noted above, I have found that President Jackson in his August 10, 1967, speech threatened employees with loss of certain fringe benefits if they selected the Union as their collective bargaining representative . These benefits he described as loans to employees and bailing out employees. This threat is coercive and I have found that their utterance contravens Section 8 (a)(1) of the Act. 2. Increase in wages of November 17, 1967 Ordinarily an employer may grant increases in wages 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during a union's organizing campaign, provided he is not motivated by antiunion considerations in doing so. International Association of Machinists, 172 NLRB No. 239; Marriott Corporation, 172 NLRB No. 220. If they are given pursuant to a pattern, policy, or program of periodic or regular increases , they may be found to be not inspired by antiunion animus. Aircraft Engineering Corporation, 172 NLRB No. 218. "Whether wage increases or other benefits granted to employees during an organization campaign are to be deemed violative of Section 8(a)(1) of the Act are to be determined, according to the Supreme Court, by the `purpose for which the benefits were granted'." International Association of Machinists 172 NLRB No. 239. It is my opinion, and I find, that the wages increases of November 17, 1967, were granted to undermine the Union and would not have been given as regular or periodic increases . There are several reasons for this conclusion: (a) A general raise had already been given a short time before, i.e., in September, 1967, and it was the third of the year . In the past, increases had not been granted at such short intervals; and four raises had not theretofore been granted in a year. (b) The announcement of the raises was made at the same time that strong antiunion sentiments were made during the speech. While I have found that such antiunion pronouncements were protected as free speech , I cannot disregard the fact that employees listening to the speech readily associated the raises with the remainder of the speech dealing with vigorous opposition to the Union. Thus, I find that the raises were granted from antiunion motives. Phillips Industries, Incorporated, 172 NLRB No. 232, Great Scott Super Market, 156 NLRB 592, 601. In my opinion Price Candy Company, 172 NLRB No. 251, is not applicable to the instant case. (c) While Respondent contends that said raises were announced in order to be prepared for the forthcoming increase in the statutory minimum wage effective February 1, 1968, no necessity is shown why Respondent's wages should have been raised approximately 3 months in advance of said February 1. It is more reasonable to infer that the raises were accelerated to impair or destroy the Union's majority, for they were announced hard on (i.e. a few days after) receipt of the Union's demand for recognition . Further, the record is barren of evidence that past periodic increases were announced at special meetings of employees. This,is significant because at no time in the past did Respondent assemble employees to announce wage raises to them, whereas it did so assemble them on November 17 and at the same time denounced the Union. Nor is there evidence that the raises had been planned or formulated before November 8, when the Union's demand for recognition was received . This is also significant. (d) Then again Respondent contends the November 17 raises became imperative to remain competitive with other employers in the area. But the wage scales of other employers were not shown at the hearing, and the only employer mentioned by name by President Jackson had not started full production. In any event , as found above, there was no occasion to couple the wage raises with antiunion epithets. I thus infer that the raises were adopted to counteract the Union's demand for recognition received but a few days before. Cromwell Printery Incorporated, 172 NLRB No. 212, is distinguishable. 3. Coercive Interrogation About October 10, 1967, Supervisor Forest Wilson asked employee James Downs , who had just been hired, how Downs felt toward a union , and added that he would not hire Downs if he , Wilson , knew that Downs was for a union . To the extent that Respondent's evidence is to the contrary, I do not credit it. I find that Wilson 's inquiry is coercive and therefore violates Section 8(axl) of the Act. About the first part of November Supervisor Crowe asked applicant for employment, Albert F. Hill, if Hill belonged to a union . I find this is coercive interrogation of an employee , as applicants for employment are accorded the standing of employees under the circumstances, Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 182-186; Ravena Sportswear , 142 NLRB 1299, 1324 , fn. 33, reversed on other grounds 333 F.2d 1 (C.A. 2). See N.L.R.B. v. Hearst Publications , Inc., 322 U.S. 111, 130. About late October, 1967, Supervisor Wilson asked applicant for employment , Lawrence Ray Foley , whether Foley would work for Wilson or Johnnie Walls , who was "trying to get a union," according to Wilson. And a couple of weeks later Wilson told Foley that he could not hire Foley "until this union business blows over." I do not credit Wilson's denial. These statements by Wilson are coercive within the contemplation of Section 8(a)(1) of the Act, and I so find. C. The Refusal to Hire Albert F. Hill On the record unfolded on this branch of the case I am persuaded, and find, that Albert F. Hill was denied employment because he belonged to the Union and that his age and inexperience were used as a pretext to refuse to employ him. Accordingly, I find that such refusal to hire Hill violates Section 8(a)(3) of the Act. This ultimate finding is derived from the entire record and the following subsidiary facts, which I hereby find: 1. Initially it may be noted that Respondent adduced no evidence on this phase of the case, so that the General Counsel's evidence remains uncontradicted. Nevertheless, this does not compel me automatically to accept the General Counsel's evidence, for a trier of facts is free to reject or not to credit uncontradicted evidence. However, I am convinced that the General Counsel's witnesses on this issue are worthy of belief; and so I credit them. 2. Foreman Crowe told employee Denver Durham that there would be job openings in the fall; Durham thereupon asked Crowe to hire Hill; and this caused Crowe to ask Durham to tell Hill to come to see Crowe., Hill did so. Also, these jobs did materialize, so that Respondent hired 24 new employees between November 7, 1967, and April 30, 1968. See G.C. Exh. 17. Thus, I find that a job was available for Hill in that period. Further, I find that Hill was not hired notwithstanding that jobs became available. 3. Although Hill was 47 and inexperienced, I find that Crowe was willing to overlook these possible impediments. This is because I find that Crowe told Hill that he, Crowe, was interested in hiring Hill and would give Hill "a trial at it" even though Crowe knew that Hill was 47 and inexperienced. If Hill did not qualify because of age or experience, it is difficult to comprehend why Crowe did not forthwith reject Hill's oral request for employment. The reasonable inference is that Crowe chose to ignore Hill's age and experience when he told Hill that he would give Hill "a trial at it" and would summon Hill to work by sending word through employees Denver Durham or Charlie Durham. 4. Hill was a member of the Union and Crowe knew of it. This is because I find that Crowe asked Hill if the JACKSON CHAIR CO., INC. 249 latter belonged to the Union and the latter replied that he did. 5. Respondent entertained a strong antiunion animus and also committed violations of the Act . Antiunion hostility in itself is not an unfair labor practice, for an employer may lawfully dislike or oppose unions and he may lawfully express antiunion sentiments . N.L.R.B. v. Howard Quarries , 362 F.2d 236 (C.A. 8). But antiunion animus is a factor which may be evaluated in ascertaining the true reason why an applicant for employment is not hired? N.L.R.B. v. Georgia Rug Mill, 308 F .2d 89, 91 (C.A. 5); Maphis Chapman Corp . v. N.L.R . B., 368 F.2d 298, 304 (C.A. 4). Similarly, the commission of unfair labor practices may be considered on the question of the true reason behind a refusal to hire a known union adherent. 6. Section 8(a)(3) of the Act extends its protection to persons like Hill who are applicants for employment. Phelps Dodge Corporation v. N.L.R . B., 313 U.S. 177, 182-183. D. The Refusal to Rehire Lawrence Ray Foley It is my firm opinion , and I unhesitantingly find, that Lawrence Ray Foley was denied reemployment by Respondent because of his sympathy for the Union and to discourage membership in the Union . Upon this aspect of the case I credit Foley and do not credit Supervisor Forest Wilson to the extent that Wilson 's testimony is not consonant with Foley 's. I credit Foley for the following reasons: 1. His demeanor on the stand was excellent . Of all the 30 witnesses who testified in this case, Foley impressed me as the most truthful, sincere, honest, and not desiring to exaggerate . The fact that he had been in a mental hospital several months before this, while material in assessing his credibility, does not cause me to revise my opinion of him as a witness. 2. Wilson corroborates Foley in many substantial respects. For example, Wilson admits that he mentioned the name of Walls and whether Foley would be working for Walls if hired by Respondent . Thus, I am convinced that, in the few instances in which Foley and Wilson disagree, Foley should be credited. 3. Foley withstood a vigorous cross-examination by Respondent's counsel, some of it (in my opinion) apparently designed to cause him to utter false statements. For example, although Foley on direct testified that one of his talks with Wilson occurred at the plant of Respondent in October, 1967, Respondent's counsel sought to show that Foley was mistaken because Wilson was home ill with a heart attack and that Foley should revise his testimony to this extent . An abstract follows (Tr. pp . 104-106): Q. Did you also know that Forest Wilson was sick in the fall of 1967 [with] ... a heart attack? A. Yes, sir. Q. So you knew he was sick? A. Yes, sir. Q. Did you know what period of time he was confined and not in the factory? .... A. The last part of October. Q. The last part of October . Mr. Foley, as a matter of fact Forest Wilson was off and wasn 't at Jackson Chair Company at all from the first of October until December . . And you know that , don't you? [Emphasis supplied.] A. No sir, no sir . He was working two hours a day. He told me so himself. Q.... When was this? When did he tell you [this]? Yet Wilson , on direct as a witness for Respondent, categorically stated (tr. p. 192) that he did speak to Foley at the plant. See, also, tr. p. 195, where the following appears as part of Wilson's direct: Q. Did you later see him at the factory? A. Yes, sir ... he just asked for a job and I told him that I wouldn't rehire him yet. 4. Foley testified that when he spoke to Wilson at the plant Wilson's daughter was sitting nearby about 10 feet away from them . Yet she did not testify either to deny her presence or, if present, to corroborate her father who claimed no union was mentioned. Above I have found that Respondent refused to rehire Foley for discriminatory reasons prohibited by Section 8(a)(3) and ( 1) of the Act. This ultimate finding is based on the entire record and the following facts, which I hereby find: 1. Although Foley was an applicant for reemployment, I find that the provisions of Section 8(a)(3) and ( 1) of the Act extend to him and protect him as an employee. Phelps Dodge Corporation v. N.L.R . B., 313 U.S. 177, 183-187. 2. Respondent demonstrated hostility towards the Union , as disclosed in President Jackson 's speeches (G.C. Exhs. 5 and 6), his letter of January 25, 1968 , (G.C. Exh. 7), the wage increase of November 17, 1967, (G.C. Exh. 6) and the utterances of Supervisors Crowe and Wilson. This, in itself, fails to establish either a discriminatory intent or the commission of unfair labor practices, but may be considered in determining the true reason prompting a discharge, a refusal to hire, or a refusal to rehire. 3. Supervisor Wilson interrogated Foley about his relationship to Walls, who was engaging in union activity, and explicitly told Foley that he, Wilson , would not hire Foley "until this union business blows over ." I do not credit Wilson's denial thereof. 4. Twenty-four job openings arose during the period of November 7, 1967, to April 30 , 1968, so that work was available for Foley . See G.C. Exh. 17. 5. I do not credit Wilson , as he testified, that he did not want to hire Foley because of Foley's mental condition. Further , it is significant that Wilson thrice spoke to Foley about a job without at any time mentioning Foley's alleged mental condition to Foley. 6. Wilson contends that he did not want to hurt Foley's feelings, and, therefore, did not mention his mental condition to Foley as the reason for denying him employment. Even then Wilson could have just said "No" to Foley; instead Wilson encouraged Foley by discussing employment with him on three different occasions. And Wilson would not have steered Foley on the occasion of their third talk to American Greeting Card for employment, as he did, if Wilson believed Foley was mentally unstable . Therefore, I find Wilson's reason given at the hearing, i.e., mental instability, but never disclosed to Foley, is a pretext to disguise or cover up the real reason for not rehiring Foley . And I find that the real reason for not reemploying Foley is discriminatory under Section 8(a)(3) and (1) of the Act. 7. Wilson told Foley that Foley would not be hired until the "union business" had terminated . I do not credit 250 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilson's contrary testimony . And, although of minor importance, I also find that Wilson inquired of Foley whether he would be working for Wilson or Johnnie Walls who, Wilson said, was "trying to get a union ." Wilson's denial thereof is not credited . These utterances by Wilson demonstrate that Foley was denied employment for discriminatory reasons forbidden by Section 8(a)(3) and (1) of the Act, and I so find. 8. Respondent committed violations of Section 8(a)(1) of the Act, as above found. VII. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those VI, of the Respondent found to constitute unfair labor practices, as set forth in section vi, above, occurring in connection with the operations of the Respondent described in section I, above , have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that the Board order it to cease and desist therefrom and that Respondent take specific affirmative action, as set forth below, designed to effectuate the policies of the Act. In view of the finding that Respondent discriminated against Albert F. Hill and Lawrence Ray Foley in not hiring them, I shall recommend that it be ordered to offer them immediate employment and that Respondent make whole each of them for any loss of earnings suffered by each by reason of the discrimination against him. In making them whole, Respondent shall pay to each a sum of money equal to that which each would have earned as wages from the date he should have been hired to the date of a prope' offer of employment, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent computed according to the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data necessary to aid it in analyzing and determining whatever backpay may be due. Finally, I shall recommend that the Board order that Respondent post appropriate notices, the text of which is recited in the Appendix hereto. Respondent's conduct in my opinion does not depict a general hostility to the Act. But cf. Jackson Chair Company, Inc., 110 NLRB 651. It follows, and I find, that an Order is proper which is limited to enjoining the unfair labor practices found and similar or like acts. Since the remedy adopted should be commensurate with the violations found, relief broader in scope is not warranted. Nothing herein shall be construed to require Respondent to abolish or abrogate any benefits heretofore granted to employees. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7) of the Act. 3. By refusing to hire Albert F. Hill and Lawrence Ray Foley in a manner which discriminates in regard to their hire, thereby discouraging membership in a labor organization, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By engaging in the conduct found in section VI, B, supra, to violate the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. All Respondent's production and maintenance employees, excluding office clerical employees, professional employees , guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. On or about November 8, 1967, and at all material times thereafter, the Union represented a majority, and has been the exclusive bargaining representative , of all the employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act; and Respondent was on that date, and has been since, legally obligated to recognize and bargain with the Union as such. 7. By refusing to recognize and bargain collectively with the Union in regard to the employees in said appropriate unit on and since November 8, 1967, and by unilaterally changing wages of employees in said unit on and since November 17, 1967, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act. 8. The foregoing unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act. 9. Respondent has not committed any other unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law , and upon the entire record in this case, I recommend that the Board issue an Order requiring that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization, by refusing to hire applicants for employment or otherwise discriminating in any manner in respect to their hire. (b) Promising or granting increases in wages for the purpose of discouraging interest or membership in the Union or any other labor organization. (c) Granting increases in wages of employees in the above-described appropriate unit without first collectively bargaining thereon with the Union as long as said Union retains its status as majority representative of said employees. (d) Coercively interrogating employees and applicants for employment regarding, or threaten reprisals because of, their union sympathies or membership. (e) Refusing to recognize and bargain with the Union JACKSON CHAIR CO., INC. 251 as the exclusive bargaining representative of all the employees in the above-mentioned appropriate unit. (f) In any similar or like manner interfering with, restraining, or coercing employees in the exercise of rights vouchsafed to them by Section 7. ' 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Albert F. Hill and Lawrence Ray Foley each immediate employment, and make each whole for any loss of pay he may have suffered by reason of the refusal to hire him, with interest thereon at the rate of 6 percent. (b) Notify said Albert F. Hill and Lawrence Ray Foley, if presently serving in the Armed Forces of the United States, each of his right to be hired upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon reasonable request, make available to the Board or its agents , for examination and copying, all payroll records and reports and all other records necessary to ascertain the amount of backpay due under the terms of this Recommended Order. (d) Upon request , recognize and bargain with the Union as the exclusive representative of all employees in the aforesaid appropriate unit and , if an understanding is reached, embody such an understanding in a written, signed agreement. (e) Post at its plant at Danville , Kentucky, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 9, after being signed by a duly authorized representative of Respondent, 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 displayed . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 9, in writing within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.' IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner ." In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Upholsterers' International Union of North America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT discourage membership in said Upholsterers' Union, or any other labor organization, by refusing to hire applicants for employment or otherwise discriminating in any manner in respect to their hire. WE WILL NOT promise or grant increases in wages to employees for the purpose of discouraging interest or membership in said Upholsterers' Union or any other labor organization. WE WILL NOT grant increases in wages to employees in the bargaining unit described below without first collectively bargaining thereon with said Upholsterers' Union as long as said union represents a majority of said employees. WE WILL NOT coercively interrogate employees and applicants for employment regarding , or threaten them with reprisals because of, their union sympathies or union membership. WE WILL NOT in any similar or like manner interfere with, restrain, or coerce, our employees in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL offer to Albert F. Hill and Lawrence Ray Foley each immediate employment . We will also pay to each of them whatever loss of wages he may have suffered as a resµlt of our refusal to hire him, with interest at 6 percent per annum. WE WILL upon request, bargain collectively with said Upholsterers' Union as the exclusive bargaining representative of all employees in the bargaining unit described below with respect to rates of pay , wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a written , signed agreement. The bargaining unit is: All our production and maintenance employees, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. All our employees are free to become , remain, or refrain from becoming or remaining, members of said Upholsterers' Union or any other labor organization. Dated By JACKSON CHAIR CO., INC. (Employer) (Representative) (Title) Note: Notify the above-mentioned employees if presently serving in the Armed Forces of the United States of their right to be hired upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Tel. No. 513-684-3686.