General Stencils, Inc.

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Stencils, Inc. and International Union of District 50, United Mine Workers of America. Case 29-CA- 1028 August 15, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 19, 1968, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the General Counsel, Charging Party, and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their union sentiments and activities and their statements given to Board agents, and by threatening employees with reprisal if the Union won the election.' 'The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect . We find no such basis for disturbing the Trial Examiner's findings in this case . Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3). 'The General Counsel excepted to the Trial Examiner's failure to find that Respondent threatened employees with discharge when President Klugman declared his intent, if employees selected union representation, to institute a new rule whereby an employee late three times in l month would be discharged . Based on testimony credited by the Trial Examiner, Respondent not only unlawfully threatened to institute , but also threatened discharge under it in retaliation for selecting the Union. Accordingly, we shall amend the Order and Notice to reflect this finding. 'While finding that Respondent violated 8(a)(l) by interrogating employees regarding statements given to Board agents and by threatening to lay off employees when work became slack instead of keeping them on 2. Although finding that the Respondent engaged in substantial unfair labor practices in violation of Section 8(a)(1), the Trial Examiner dismissed the 8(a)(5) allegation of the complaint. He viewed the Respondent's experience with previous union bargaining requests followed by election defeats in 1961 and 1966, as providing a reasonable ground for questioning the dependability of the Union's majority showing by authorization cards," and held that this was a basis for a good-faith doubt which was not vitiated by the Respondent's unfair labor practices.' We do not adopt the Trial Examiner's conclusion. Where unlawful conduct is aimed at and does undermine a union's majority, it is irrelevant that the employer may have a rational, albeit erroneous, doubt of majority or that he has a general distrust of cards. A preference for proof of majority by an official secret-ballot election cannot become a license to engage in conduct designed to prevent the exercise by employees of a free choice concerning representation. An employer who raises the majority issue in such a context should not be permitted to control the method for resolving the issue. Nor does the fact that unions had lost earlier representation elections after asserting card majorities, as was the situation in Gissel Packing Co.,` support Respondent's claim that the cards here are unreliable reflections of the employees' choice any more than it established that in another election now the Union presently petitioning will lose. If this were true, there would be little justification for the periodic exercise of choice which is based upon the recognition that circumstances and views change. Indeed, it may be assumed that an employer's unwillingness to participate in an election without engaging in unfair labor practices aimed at influencing that election indicates his fear that in the forthcoming election a majority of employees will vote for union representation. In assuring to employees the freedom to choose whether to be represented and imposing upon employers the duty to bargain with a majority representative, the law makes no distinction between whether this was the first or second time the employees have considered the payroll in accord with its existing practice, the Trial Examiner failed to remedy these violations in the Recommended Order. We shall revise the Order and Notice to provide therefor We agree with the Trial Examiner 's finding that at the time of demand the Union possessed valid authorization cards from a majority of employees in the appropriate unit. 'We find no additional support for this finding in the agent's remarks that the Union could not win an election . These remarks were made in the context of informing the Respondent that unfair labor practice charges would be filed and of protesting further unlawful interference, while attributing to such conduct loss of constancy in Union adherence An employer may not undermine the organizational efforts of its employees and then use the effects of such unlawful conduct to support its asserted doubt as to the success of these efforts Nor can Respondent claim vindication because it overheard reluctant sentiments toward unionization expressed by the very employees who were the objects of its own coercive conduct. Such evidence establishes that Respondent's campaign had in fact instilled fear in the employees that their activity could jeopardize their jobs 'N L.R.B. v Gissel Packing Co., 395 U.S 575. 178 NLRB No. 18 GENERAL STENCILS, INC. 109 the issue. We have previously found that the Respondent engaged in widespread unfair labor practices during the Union's organizing drive, before and after receiving the Union's demand for recognition. Thus, the Respondent in violation of Section 8(a)(1) interrogated employees about their union activities and evinced to employees its intention to revoke many existing privileges if they elected the Union. These unfair labor practices, notwithstanding the Respondent's expressed willingness to proceed to an election, tended to destroy the employees' free choice by frightening them into withdrawing their allegience from the Union and were of such a nature as to have a lingering effect and make a fair or coercion-free election quite dubious, if not impossible. In these circumstances, we are of the opinion, and find, that, on balance, the rights of the employees and the purposes of the Act would be better effectuated by reliance on the employee sentiments expressed in the authorization cards rather than on the results of an election.' Accordingly, as the record establishes that the Union had secured authorization cards from a majority of employees when it made its request for recognition, we find that by refusing the Union's request and engaging in the aforesaid unfair labor practices, the Respondent engaged in conduct violative of Section 8(a)(5) and that an order requiring the Respondent to recognize and bargain with the Union is appropriate to remedy its violations of Section 8(a)(5) and (1) of the Act. Conclusions of Law 1. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by interrogating employees in a manner constituting interference, restraint, and coercion, about their union sympathies and activities, and about their statements given to agents of the National Labor Relations Board and by threatening employees with enforcement of a no-smoking rule, with discharge through the institution of a new tardiness rule, with discontinuance of loans to employees, with cessation of free coffee breaks, with laying off employees if work got slow, contrary to existing practices, and with plant closure, all if the Union won the election. 4. At all material times, the Union has been the exclusive bargaining representative of the employees in the following unit: All production and maintenance employees of General Stencils, Inc., employed at its plant, exclusive of guards, Watchmen and all supervisors as defined in Section 2(11) of the Act. 'Fn. 6, supra. 5. Since June 23, 1967, the above-named labor organization has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing on or about June 23, 1967, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive representative of all the employees of the Respondent in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, General Stencils, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their membership and/or interest in International Union of District 50, United Mine Workers of America, or any other labor organization of its employees, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act, or about any statements given to agents of the National Labor Relations Board. (b) Threatening to enforce a no-smoking rule, if a majority of the employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of its employees, to represent them. (c) Threatening to impose a tardiness rule, and threatening employees with discharge through the implementation of this rule, if a majority of the employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of its employees, to represent them. (d) Threatening to refuse to make loans to its employees, if a majority of the employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of its employees, to represent them. (e) Threatening to cease providing its employees with coffeebreaks (or free coffeebreaks), if a majority of the employees selects International 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union of District 50, United Mine Workers of America, or any other labor organization of its employees, to represent them. (f) Threatening to close the plant, if a majority of the employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of its employees, to represent them. (g) Threatening employees with layoffs if work is scarce, contrary to established practice of avoiding layoffs, if a majority of the employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of its employees, to represent them. (h) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Union of District 50, United Mine Workers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees of General Stencils, Inc., employed at its plant, exclusive of guards, watchmen and all supervisors as defined in Section 2(11) of the Act. (i) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Brooklyn, New York, plant, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of the Respondent, shall, be posted by the Respondent immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. '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 Enforcing an Order." (c) Notify the Regional Director for Region 29, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 interrogate employees concerning their membership and/or interest in International Union of District 50, United Mine Workers of America, or any other labor organization of our employees, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act or about statements given to agents of the National Labor Relations Board. WE WILL NOT threaten to enforce a no-smoking rule, if a majority of our employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of our employees, to represent them. WE WILL NOT threaten to impose a tardiness rule, or threaten employees with discharge through the implementation of this rule, if a majority of our employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of our employees, to represent them. WE WILL NOT threaten to refuse to make loans to'our employees, if a majority of our employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of our employees, to represent them. WE WILL NOT threaten to cease providing our employees with coffeebreaks (or free coffeebreaks), if a majority of our employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of our employees, to represent them. WE WILL NOT threaten to close the plant, if a majority of our employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of our employees, to represent them. WE WILL NOT threaten employees with layoffs if work is scarce, contrary to our established practice of avoiding layoffs, if a majority of our employees selects International Union of District 50, United Mine Workers of America, or any other labor organization of our employees, to represent them. WE WILL NOT refuse to bargain collectively with International Union of District 50, United Mine Workers of America, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or'related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to GENERAL STENCILS, INC. Section 8(a)(3) of the Act. WE WILL upon request ,bargain with the above-named Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages , hours, and other terms and conditions of employment , and if an understanding is reached , embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of General Stencils, Inc., employed at its plant, exclusive of guards, watchmen, and all supervisors as defined in Section 2(11) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining , members of the above-named Union or any other labor organization. Dated By GENERAL STENCILS, INC. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 16 Court Street, Fourth Floor Brooklyn, New York 11201, Telephone 212-596-3535. TRIAL EXAMINER' S DECISION ABRAHAM H. MALLER, Trial Examiner On June 23, 1967, International Union of District 50, United Mine Workers of America, herein called the Union, filed a charge against General Stencils, Inc., herein called the Respondent. Upon said charge, the Regional Director for Region 29 of the National Labor Relations Board, herein called the Board, on August 31, 1967, issued on behalf of the General Counsel a complaint against the Respondent, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer, Respondent denied the commission of any unfair labor practices Pursuant to notice, a hearing was held before me at Brooklyn, New York, on December 18, 19, 20, 21, and 22, 1967. The General Counsel, the Respondent, and the Charging Party were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by the General Counsel and the Respondent. Upon consideration of the entire record, including the oral argument of the General Counsel and the briefs, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACTS AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT At all times material herein, Respondent has maintained its principal office and place of business at 827 East 92 Street in the City of Brooklyn, New York, where it is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of marking devices, etched name plates, and related products. During Ill the year ended December 31, 1966, which period is representative of its annual operations generally, Respondent , in the course and conduct of its business operations, manufactured, sold and distributed at its plant, products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said plant in interstate commerce directly to states of the United States other than the State of New York. In view of the foregoing, I find and conclude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. If. THE LABOR ORGANIZATION INVOLVED International Union of District 50, United Mine Workers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them under Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. Whether the Union represented a majority of the employees of the Respondent in an appropriate unit when it requested recognition and bargaining. 3. Whether the Respondent's refusal to bargain was based on a good-faith doubt as to the Union's majority. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is managed and supervised by its 67-year old secretary and general manager, Joseph Klugman who has operated the firm in that capacity for the past 42 years. Clad in overalls, Klugman spends his days at the plant directing the production force, assisting in the work, and getting materials. There has never been a union certified or recognized by the Respondent. In 1961, the Charging Party came to Klugman and demanded recognition based upon a claimed majority of cards. Klugman refused to recognize the Union and told the representative that he would recognize the Union only if the employees voted for the Union in a secret ballot election . Subsequently, there was an NLRB election, and the Board certified that a majority had not voted for District 50. In June 1966, a representative of New York Local Union 10, International Brotherhood of Production Maintenance and Operator Employees came to the Respondent and claimed to have a majority of cards and demanded bargaining. Again, Klugman refused to recognize the union and said he would do so only if there was an election which the union won. In an ensuing election, a majority of the employees voted against union representation. Objections were filed by the union based on a statement signed by a number of employees to the effect that the Respondent had committed unfair labor practices which affected the results of the election. Upon investigation, the employees retracted their statement, and the Regional Director dismissed the objections and certified the results of the election. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Union's Organizing Campaign The Union began organizing Respondent's plant around June 8, 1967.' William J. Pohmer, International Representative, solicited employees to sign authorization cards in front of the plant in the morning as they came to work, during lunchtime, and at quitting time. On June 22, he held a meeting of Respondent's employees after work. Approximately 22 employees were present. Some employees signed cards at the meeting. The authorization cards read as follows: INTERNATIONAL UNION OF DISTRICT 50 UNITED MINE WORKERS OF AMERICA Local Union No. I hereby request and above-named union and of to act as my agent or bargaining purposes. Ledger No.- accept membership in the my own free will authorize it representative for collective Date Name (Print), Address City Signature Employed by (Company)- Classification of Employment Representative Clock No Telephone State Pohmer also told the employees that initiation fees would be waived and that they would not have to pay dues until after a collective-bargaining agreement was signed. By June 23, 1967, 24 members of the appropriate unit had signed the aforesaid authorization cards. C. Respondent Refuses To Recognize the Union On June 23, Pohmer accompanied by the Union's Regional Director, Charles Retty, visited Respondent's office at its plant and spoke with General Manager Joseph Klugman. Pohmer and Retty introduced themselves as agents of the Union. Pohmer told Klugman that the Union was the majority representative of Respondent's production and maintenance employees and offered to show Klugman the union membership application cards which he had with him.' Pohmer had the cards in his hand and tendered them to Klugman who turned away, saying that he did not want to see the cards. Klugman insisted that he wanted an election. Pohmer responded: "There is not going to be any election. We are filing a refusal to bargain charge and there will be no election." Pohmer 'Unless indicated otherwise, all events detailed herein occurred during 1967 also admittedly told Klugman that the Union could not win an election." The Union then filed the authorization cards with the Board's Regional Office, and sent a letter to the Respondent again claiming a majority, offered to submit the authorization cards to an unbiased check, and requested bargaining. Thereafter, on or about June 30, and on various other dates in July and August, Pohmer called upon Klugman and on each occasion requested recognition and bargaining. Klugman reiterated his insistence on an election. D. Violations of Section 8(a)(1) The General Counsel's case with regard to the alleged violations of Section 8(a)(1) of the Act consists of the testimony of several employees and former employees each of whom testified to conversations with Klugman outside the presence of any other witness On the whole, their testimony is uncorroborated. Klugman took the stand and categorically denied each of the violations testified to by the employees. His testimony is likewise uncorroborated. In this posture, the Respondent contends that the evidence is equally balanced. one witness against one in each instance. However, it is well settled that preponderance is not determined by a mechanical approach. Rather, preponderance in such instances depends upon the credibility of the witnesses. Klugman's denials of the various statements attributed to him did not impress me. On the other hand, some of the employee witnesses, judging from their appearance and demeanor while testifying, and other circumstances discussed infra, did impress me as straighforward, honest witnesses, and I have credited their testimony. Other employee witnesses, judged by the same standard, did not appear to be credible witnesses. A number of witnesses for the General Counsel testified to antiunion statements by Klugman, including his opinion that the Union was not good for the employees, that unions were like gangsters, etc. In the ensuing discussion of the testimony, I have ignored these alleged statements which constitute mere expressions of views, argument, or opinion containing no threat of reprisal or force or promise of benefit, and, as such, are protected by Section 8(c) of the Act. Henry Maldonado testified that before the June 22 meeting, Klugman told him that "if the Union got in, there would be no special raises On cross-examination, however, he was confronted with his pretrial statement dated August 18, in which he stated that Klugman had not said anything to him about the Union, nor had Klugman ever questioned him about the Union, or told him that anything would happen if the Union got into the shop. Maldonado then changed his testimony and stated that his conversation with Klugman took place in November, after he had given the pretrial 'Pohmer claimed that he had with him 25 union membership application cards. However, it is clear from the record that one of the application cards relied upon by the General Counsel to establish the Union's majority was signed by employee Rivera after June 23 1 therefore find that Pohmer had only 24 cards with him at that time. 'According to Pohmer , in his second conversation with Klugman on June 30, he told Klugman that the reason he felt that the Union could not win an election was the information given to him by the employees to whom he had spoken, to the effect that it was impossible to win an election because of the tactics of the Company , viz. implied threats, giving people extra holidays, raises under the table, and all kinds of pressure. GENERAL STENCILS, INC. 113 statement. In addition, Maldonado admitted on cross-examination that he had been fired by Klugman and did not like him. It is extremely unusual that, although Klugman did not make any antiunion statements to Maldonado during the Union's organizing campaign, he should engage in such conduct after the issuance of the complaint herein. In sum, I do not credit Maldonado's testimony. Nor do I credit the testimony of John Mandia. Mandia testified that he had three conversations with Klugman both before and after he had signed a card. Later, he testified that he did not recall any conversation after he signed the card. According to Mandia, Klugman in the first conversation asked him if he was going to sign a card and told him that the Union was not going to make things better. Mandia admitted that he had started two of the conversations with Klugman by asking Klugman what he thought about the Union and that Klugman had replied that the unions were no good, that they were just going to take his money away, and that they are like gangsters. Finally, Mandia admitted that the only thing he could be sure of was that Klugman made a statement that the Union was not in the best interest of the workers Robert Kretschmer had been employed by the Respondent for 7 years, but at the time of the hearing was no longer employed by the Respondent, having left voluntarily the previous October to work for the city of New York. He signed a union card on June 12. Kretschmer testified to several conversations with Klugman, although he admittedly was confused as to the dates of these conversations. He testified that in these conversations, Klugman at various times said that he could always close down the business if the Union came in, that if the Union came in. (a) Respondent would cut out the free coffeebreaks,s (b) Respondent would cease maintaining the close relationships it has with its employees; (c) Respondent would cease making loans to employees, (d) Respondent would stop the employees from smoking Klugman denied making the foregoing statements, except that he admitted telling Kretschmer that "if the Union got in, it sets up a wall and there would be no more close relationships with employees."` On August 2, at a union meeting, Kretschmer gave a statement to a Board agent. The following day, Klugman told Kretschmer that he knew there had been a union meeting the previous night and that he knew who was at the meeting. Klugman then asked him which employees were there. Kretschmer refused to tell him. Klugman then said that employee George Dusling and "Mary" were there and that altogether six employees had attended. Klugman then asked Kretschmer whether he had given a statement to the Board, and when Kretschmer admitted that he had done so, Klugman asked him what the Board agent had asked Kretschmer and what Kretschmer had told the Board agent. Despite Kretschmer's inability to fix satisfactorily the dates of the foregoing conversations (except that which followed the meeting of August 2), I find that he was a credible witness. At the time of the hearing, he was no 'Kretschmer was uncertain whether Klugman said he would cut out the free coffeebreaks or merely the coffeebreaks. The record shows that Respondent's employees enjoyed two coffeebreaks, one in the morning and one in the afternoon Respondent provides the coffee, and at one of the breaks also provides free cake `In the context of the record, this admission is particularly significant Respondent makes loans to employees from time to time, pays their doctor's bills when they are sick, and keeps them on the payroll, instead of laying them off, when business is slow. longer employed by the Respondent, having left under what appeared to be pleasant circumstances. Although he had signed a card for the Union, he appeared to be completely neutral at the time of the hearing. Moreover, as noted above, his testimony was corroborated by that of Klugman in a very significant detail. Also, Kretschmer's testimony regarding Klugman's threat to stop smoking in the plant parallels that of employee de Thomas (discussed infra), to whom Klugman had made a similar threat. Respondent contends that Kretschmer's testimony should not be credited, because Klugman knew in May that Kretschmer was going to leave for another job, and therefore, it does not make sense that Klugman would have uttered threats to him as to what he would do if the Union came in. The contention must be rejected. Although Klugman knew that Kretschmer intended to leave to accept a job with the City of New York, neither Klugman nor Kretschmer knew when that would happen In the meantime, Kretschmer was an employee. It is not inconceivable that Klugman would have made those statements to Kretschmer in the hope that Kretschmer would disseminate these statements among the other employees. Cf. Blade-Tribune Publishing Company, 161 NLRB 1512, 1516, where an employee who had given notice of his intention to quit was interrogated as to how he felt about the Union. Klugman's statements to Kretschmer, detailed above, and his interrogation of Kretschmer regarding the meeting of August 2, and regarding the statement he gave to a Board agent were clearly violative of Section 8(a)(1), and I so find. Employee Kenneth de Thomas is currently employed by the Respondent and has been so employed for 12 years. He signed a union card on June 9. Prior to the union meeting of June 22, Klugman and de Thomas observed employee Duane Nicholas smoking in the plant. Klugman told de Thomas that "if the union got in, there would be a rule enforcing the no-smoking rule." A few days later, while they were in the parking lot, Klugman began talking about people being late and told de Thomas that, if the Union got in, he would institute a new rule on lateness, that anyone late three times in a month would be fired. de Thomas admitted being late occasionally. de Thomas testified further that although there are posted in the plant no-smoking signs furnished by the Fire Department, there is actually no company rule forbidding smoking and, in any event, the prohibition against smoking is not enforced. de Thomas never saw Klugman stop anyone from smoking. Klugman denied the foregoing conversations. Although de Thomas admitted being late occasionally, Klugman testified that de Thomas was not an employee who came in late. With regard to smoking in the plant, he testified that he stopped Duane Nicholas from smoking on one occasion and told him that if he were caught smoking again he would throw him out of the place. Nicholas, although called as a witness by the General Counsel, was not interrogated regarding the smoking incident testified to by de Thomas. Nor was he called to rebut the testimony of Klugman. The testimony of neither witness is corroborated. However, de Thomas' testimony regarding the threat to enforce the no-smoking rule finds a parallel in Kretschmer's testimony discussed above, and his testimony regarding the imposition of a tardiness rule parallels the testimony of Lamatinna, discussed infra. In any event, I was most favorably impressed by de Thomas as a credible witness. Moreover, by testifying as he did, he ran the risk of incurring the displeasure of the Respondent for whom he had worked for 12 years. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Marie Lamatinna, currently employed by the Respondent, is an employee of 4 years' standing. She signed her card on June 9. She testified to one conversation with Klugman during the second week of July during the plant's "vacation," through which she and some other employees continued to work. In that conversation, Klugman told her that if the Union came in and "if it got slow, he could lay us off... that he could stop the radio playing and not let us play it . . . and if we came in late, he could fire us for it. And he couldn't lend us any more money like he used to " On cross-examination, Lamatinna admitted that she came to Klugman a couple of weeks before the hearing and told him that she wanted to withdraw her statement to the NLRB, not because the statements were untrue, but because "I was scared. It was jeopardizing my job." Lamatinna also admitted that she had speculated in conversations with other employees before Klugman had made the foregoing statements to her, that the Respondent could do these things if the Union came in. Klugman denied telling Lamatinna anything about the Union, but testified that he had heard her talking in that vein during a coffeebreak. He also testified to a conversation during vacation, in which she told him that the Union wanted her to sign a statement that the Respondent had offered her a bribe and that she had refused. I credit the testimony of Lamattina who impressed me as an honest witness. Furthermore, some of the statements which she testified that Klugman made to her are similar to the statements which, according to other witnesses, Klugman made to them. Klugman's statements to Lamatinna were clearly violative of Section 8(a)(1), and I so find. Edna Gromalski is currently employed by the Respondent and has been so employed for the past 6 years. She signed a union card on June 14. On or about the time she signed the card, Klugman asked her whether she was going to be "with the Union or with him." Klugman added that was "not forcing the issue upon me, it is up to myself whether I belong or whether I don't belong." Gromalski did not answer him. Klugman also asked her whether she knew who had signed cards, and she replied that she did not know, but this was not true. Klugman denied ever having such a conversation with Gromalski. He testified that there was a conversation with her concerning the Union, in which she told him that based on her past experience at another place of employment, she would not have anything to do with the Union. Gromalski admitted to volunteering this information, but claimed that she made it years before the organizing campaign involved herein. Respondent attacks the credibility of Gromalski, pointing out that in her pretrial affidavit to the Board, dated August 25, she stated that Klugman did not ask her if she signed a card. The statement in her pretrial affidavit does not affect her credibility, inasmuch as Gromalski did not testify that Klugman had specifically asked her whether she had signed a card. Her testimony in this regard was whether she was going to be "with the Union or with him." As between Gromalski and Klugman, I credit the testimony of Gromalski. Klugman's interrogation of Gromalski was violative of the Act, and I so find. The fact that Klugman told her, when he asked her whether she would be with the Union or with him, that he was not forcing the issue and that it was up to her whether she belonged did not meet the safeguards required by Blue Flash Express, Inc., 109 NLRB 591, and the coercive effect of the inquiry is evident from her failure to answer him Particularly is this true when the inquiry was coupled with the further question whether she knew who had signed cards-a question which Gromalski answered untruthfully in the negative. Blade-Tribune Publishing Company, 161 NLRB 1512, 1526, and cases cited at fn. 27, therein. Josephine Messina, currently employed by Respondent, is an employee of 4 years' standing. She signed her union card on June 16. On several occasions between June through August, Klugman asked her whether she was "with him or against him." She testified, however, that this question was not asked in the context of a union; that Klugman never waited for a response and she made none; that Klugman said it in a joking manner and she believed him to be joking. I am unable to find that the foregoing constitutes interrogation within the meaning of Section 8(a)(1) of the Act. The question was asked in a joking manner, and the witness understood Klugman to be joking. See Geo. Byers Sons, Inc, III NLRB 304, 306, fn 4, and compare: A. P Green Fire Brick Co, 140 NLRB 1067, 1071; Sunshine Art Studios, Inc, 152 NLRB 565, 574 Employee Duane Nicholas, currently employed by the Respondent, testified that he signed his union card on June 21, and mailed it to the Union. He testified that Klugman made derogatory remarks about the Union and asked him whether he had signed a card. The Respondent attacks Nicholas' credibility for the following reasons: when Nicholas testified concerning the conversation with Klugman he failed to mention the fact that Klugman had asked him whether he had signed a card, and not until his testimony had been refreshed by looking at his pretrial statement, did he so testify. Respondent also points to an inconsistency between his testimony and his pretrial statement in that in his pretrial statement, Nicholas said that he gave the card to a fellow worker after he had signed it, whereas in his testimony at the hearing he stated that he had mailed the card in. Also, with regard to interrogation, the pretrial statement reads as follows: Sometime in June, Mr. Klugman asked me in the spraying room had I signed a Union card membership card, and I told him no. I was not questioned about my signing. As indicated, the latter sentence was crossed out, and the deletion was initialed by Nicholas. In view of the foregoing, Respondent contends that Nicholas' testimony is not credible. I do not agree. The mere fact that the witness had to have his recollection refreshed does not vitiate his testimony. It is, however, a factor which I have taken into consideration in assessing Nicholas' credibility. Nor is the fact that Nicholas' testimony with regard to what he did with the card after he signed it differs from his pretrial statement render his testimony incredible. Indeed, it appears from the record that his pretrial statement was erroneous in this regard, as the card signed by him does bear a post mark, indicating that it was mailed into the union headquarters. Nor does his testimony become incredible because his pretrial statement contained two inconsistent statements, one of which was crossed out. The statement was not written by Nicholas, but by a Board investigator, and if the latter made a mistake in writing what Nicholas told him, such an error would not reflect upon the credibility of the deponent. I have taken all of the foregoing factors into consideration and based upon my observation of Nicholas while he was testifying, I am satisfied that he was an honest witness , and I credit his testimony. GENERAL STENCILS, INC. 115 Ann Giattino, currently employed by Respondent, signed her union card on June 14. Approximately a week later, she had a conversation with Klugman in which she told him, "I understand when any place is slow in the Union that generally the last person to come in is the first one to go." She then pointed out to him that she was the last female hired in the packing section. Klugman confirmed her understanding, but pointed out to her that he would take her back as soon as it was busy, because she was a good worker. Since Giattino raised the issue and solicited Klugman's opinion, I do not consider his confirmation of Giattino's understanding regarding seniority as a threat to her job security. Henry I. Seigel Co., Inc., 143 NLRB 386. E. The Alleged Violation of Section 8(a)(5) 1. The appropriate unit All production and maintenance employees of Respondent, employed at its plant, exclusive of guards, watchmen and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2. Composition of the unit The Union made its initial demand for bargaining on June 23, and repeatedly requested bargaining from time to time thereafter. During the week ending June 28, Respondent had a maximum of 36 employees in the appropriate unit. Thereafter, between the weeks ending July 5 and August 30, the maximum number of employees in the appropriate unit varied between 17 (during the vacation period) and 36 employees. The General Counsel contends that of the number of employees listed above, the following should be excluded: Eugene Berutti, Anthony De Paoli, William George, and Harry Keshner. The General Counsel contends that the four named employees are irregular, part-time employees and do not have a substantial community of interest in the wages, hours, and other terms and conditions of employment of the unit employees. The record substantiates the General Counsel's contention. Thus, all of the four named employees had full time, day time jobs away from Respondent; none of them worked for Respondent during the day and weekdays, but in the evenings (after the production and maintenance employees had gone for the day), and infrequently on Saturdays. Berutti performs repairs on electronic components; De Paoli welds and fabricates racks and does general plumbing work; George does art work; and Keshner, typesetting and compositing. As to the amount of hours spent in Respondent's plant b) each of the foregoing, the record reveals the following: Week Ending Berutti Hours Worked De Paoli George Kershner June 7 0 0 0 4 3/4 June 14 0 0 0 8 1/4 June 21 7 8 1/4 3 1 /4 10 June 28 6 112 7 1/4 0 9 July 5 6 1 1/4 0 6 1/4 July 12 0 2 0 3 3/4 July 19 2 1 0 5 1/2 July 26 0 4 1/2 3 6 1/2 Aug. 2 0 0 0 6 1/4 Aug. 9 0 4 2 1/2 5 Aug. 16 0 0 0 2 3/4 .23 0 0 0 8 Aug. 30 10 1/4 0 0 8 Furthermore, the four employees are treated differently by the Respondent in the following respects: The production and maintenance employees are given 12 paid holidays each year and are given a paid vacation each year. None of the four employees named above is given any paid holidays, and only one, Keshner, is given a paid vacation. Also, Respondent maintains a Blue Cross plan under which the employees are eligible for coverage after 3 months' employment, with the Respondent paying the full premium. None of the four named employees has applied for coverage, apparently because they are covered in their principal place of employment. All production and maintenance employees are furnished with fresh uniforms by Respondent on a weekly basis, free of charge. None of the four named employees is provided with company uniforms. In view of all the foregoing, I find and conclude that Berutti, De Paoli, George, and Keshner were casual employees and should be excluded from the appropriate unit. Blade-Tribune Publishing Co., 161 NLRB 1512, 1520, and cases cited therein. I further find that on June 23, when the Union made its initial demand, the appropriate unit consisted of 32 employees.' 'As is found infra, the Union on June 23 , had in its possession valid 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Union's majority By June 23, when the Union made its initial demand for recognition and bargaining it had authorization cards from 24 employees in the appropriate unit, as follows: Hernandez, Collins, Maldonado, Pena, Baldwin, Mandia, Kretschmer, de Thomas, Lamattina, Gromalski, Dusling, Nicholas, Giattino, Messina, Perez, Felicetti, Vlismas, Glassford, Ramirez, Cruz, Madero, Brennan, Colon, and Torres.' Respondent attacks the validity of the authorization cards as a group, on the ground that signers were told that they would not have to pay an initiation fee. The argument is based upon the somewhat ambiguous testimony of employee Thomas Felicetti who testified "that the people who joined now don't have to pay no initiation. The people after that who do come in have to pay initiation." The testimony of International Representative Pohmer is more reliable. Pohmer testified. Q. On June 22, at that meeting, did you say anything to the employees about initiation fees being waived for those who signed now? A. Not for those who signed now. I made a general statement I usually make, everybody would pay dues. As far as initiation fees, there would be none for anybody until after a signed contract, in effect. And that would only apply to those people hired after the contract was signed. Q. Did you say anything about the fact that if they signed a card, they wouldn't have to pay initiation fees? A. I didn't tie one to the other. Based upon Felicetti's testimony which I find unreliable in this regard, Respondent relies upon three decisions which are inapposite. Citing Teletype Corporation, 123 NLRB 1594, where the unions paid employees money for attending meetings, Respondent argues that the waiver of initiation fees is no more than a bribe to assist in organizing and as such interfered with "the free and untrammeled choice by the voters." The analogy is farfetched and, in any event, is contrary to established Board law. Respondent also relies on N.L.R B. v. Gorbea, Perez & Morrell, 328 F.2d 679 (C.A. 1). That case is factually distinguishable from the instant proceeding, in that the union promised to waive initiation fees, when, in fact, there was no initiation fee to be waived. See the discussion of the Gorbea case by the Court of Appeals for the Second Circuit in Amalgamated Clothing Workers of America v. N.L.R.B., 345 F.2d 264, 267. See also Edro Corporation, etc , 147 NLRB 1167. Respondent also relies upon the Board's decision in Lobue Bros., 109 NLRB 1182. However Lobue was explicitedly overruled by the Board in Dit-MCO, Incorporated, 163 NLRB No. 147. In Fabricators, Incorporated, 168 NLRB No. 21 the Board's most recent holding on this subject, the validity of union authorization cards was upheld against the contention that they were obtained by a promise of to waive initiation fees. Respondent next attacks the validity of specific authorization cards as follows: Respondent contends that Rivera's card should not be counted because there is no evidence that his card was signed and submitted on June 23. Furthermore, it bore a authorization cards from 24 employees in the appropriate unit. This was a clear majority, even if contrary to the foregoing, the four employees named above are found to be members of the appropriate unit. By stipulation signed after the close of the hearing herein, the parties stipulated that Henry Maldonado and Hugh Glassford are to be included as employees of Respondent employed in the appropriate unit on and after June 14, 1967. The stipulation is hereby received in evidence. postage due date of July 5 and was not submitted to the Board with the other cards. I have previously pointed out that Rivera's card cannot be counted toward a majority on June 23 . However, since the Union's demand was a continuing one, it should be counted toward a majority after July 5. The General Counsel does not contend otherwise. Respondent contends that Baldwin's card should not be counted because he testified that he was told by Union Representative Pohmer that the card was only to secure an election . Baldwin appeared to be a confused witness. Nevertheless , it is clear from a reading of his testimony that the "vote" that Baldwin was talking about was a vote to be taken at a union meeting. Patently, Baldwin was not referring to an NLRB election . Furthermore, the record is clear that Pohmer did not suggest that the cards might lead to an election . Indeed , the opposite is the fact. Several employees testified that Pohmer made it quite clear that the authorization cards would be used to demand recognition and not an election. In any event, even if Baldwin's testimony is construed most favorably to Respondent, it falls for short of invalidating the card, for nowhere does it appear that Pohmer represented to Baldwin that the cards would be used solely for an election . N.L.R.B. v. Cumberland Shoe Corporation, 351 F.2d 917, 920 (C. A. 6); Amalagamated Clothing Workers of America v. N.L.R B., 371 F.2d 740, 745 (C.A.D.C.) enfg. 156 NLRB 511. Baldwin's card should therefore be counted Respondent contends that Kretschmer's card should not be counted because as early as May, he had been planning to leave Respondent's employ. The contention must be rejected . Kretschmer was regularly employed by Respondent when he signed the authorization card. Squarely in point is the case of Personal Products Corporation, 114 NLRB 959 , where an employee's vote was challenged on the ground that prior to the election she had given notice to the employer of her intention to terminate her employment two days after the election. The Board said : "The Board has held that the fact that an employee intends to quit after an election , and does in fact quit, does not affect his eligibility to vote." (Id. at p. 961). See also Otarion Listener Corp., 124 NLRB 880, 881; Blade-Tribune Publishing Co., 161 NLRB 1512, 1521. Kretschmer's card should therefore be counted. Respondent also attacks the validity of the card signed by Hernandez who left Respondent' s employ on July 9 and moved to Pennsylvania . Respondent argues that Hernandez was undoubtedly planning to leave by June 23. The argument is purely speculative. In any event, Hernandez was regularly employed by the Respondent on June 23, and the rationale applicable to Kretschmer's card is fully applicable here. Hernandez' card should therefore be counted toward a majority. Respondent next challenges the authorization cards signed by Dusling, Pena and Felicetti who signed their cards at a union meeting at which the union representative requested a show of hands of those who had not signed cards. These employees , plus another, were the only ones who raised their hands . They subsequently signed at this meeting. Respondent argues that these three employees were under pressure and that this is a far cry from the "laboratory conditions" of a Board election and the privacy and freedom of a ballot booth . Respondent's contention is without merit. The testimony of Dusling ("The only reason I signed was because I figured that there was a majority . That's the only reason .") and of Pena ("Everyone wanted an organization or union .") fall GENERAL STENCILS, INC. far short of any representation by the Union that a majority had signed. But even if there had been such a representation to them, it would not invalidate the cards, as there was no showing by the Respondent that such a representation was false. Ottenheimer and Company, 144 NLRB 38, 39; Merrill Axle and Wheel Service, 158 NLRB 1113, 1114-15. Accordingly, the cards of Dusling, Pena, and Felicetti should be counted toward the Union's majority The Respondent also challenges the cards signed by Glassford, Ramirez, Cruz, Madero, Brennan, Colon, and Torres, because they did not appear and testify at the hearing. Glassford's signature was authenticated by Union Representative Pohmer who testified that Glassford signed the card in his presence. This was an appropriate method of authentication. Colson Corporation v. N.L R B., 347 F.2d 128, 134 (C.A 8); Indiana Rayon Corporation, 151 NLRB 130, 135- 136. Glassford's card should therefore be counted toward the Union's majority. The cards of the remaining six employees mentioned above were admitted after I had compared the signatures on the cards with the signatures of those employees on their "W-4" forms which had been subpoened from the Respondent. The signatures on the authorization cards were strikingly similar to the corresponding signatures on the W-4 forms, appeared to be genuine, and I so stated on the record. Nevertheless, I stated that the Respondent was free to adduce countervailing evidence, by way of a handwriting expert or otherwise, and that I would consider such testimony in determining the genuineness of the signatures. However, the Respondent offered no evidence whatsoever regarding the signatures of these six employees. Accordingly, I find and conclude that the authorization cards signed by the above-named employees should be counted toward the Union's majority. N L R B. v. Philamon Laboratories, Inc 298 F.2d 176, 180 (C.A. 2), cert. denied 370 U.S. 919; Combined Metal Mfg Corp., 123 NLRB 895, 896-897; Aero Corporation, 149 NLRB 1283, 1287-89, Heat Timer Corporation, 124 NLRB 1256, 1270-71; I. Taitel and Son, 119 NLRB 910, 912 4. Respondent's good-faith doubt as to the Union's majority Klugman's two earlier experiences with union demands for recognition had bereft him of confidence in authorization cards as indicating the wishes of his employees. This was the third time that union agents had approached him and claimed majority status on the basis of signed cards, and demanded recognition On each of the two prior occasions, Klugman had refused recognition, insisting upon an NLRB election. On each of the two prior occasions, elections had shown that the union had not been supported by a majority of the employees. The latter of these occasions had taken place just a year before. The first, had involved a demand by the union involved in the instant case. Under the circumstances, Respondent had a substantial and reasonable ground for doubting the validity of a majority showing by authorization cards Hercules Packing Corporation 163 NLRB No. 35; Shelby Williams of Tennessee, Inc., 165 NLRB No. 108. Indeed, Klugman's doubt was reinforced by Union Representative Pohmer's statement at the initial demand for recognition on June 23. When Klugman insisted that he wanted an election, Pohmer admittedly said that there would be no election; that the Union could not win the election.' 117 In addition to the foregoing, Klugman had heard a number of his employees expressing antiunion sentiments. Thus, he testified that he overheard employees Vlismas, Gromalski, Messina, and Lamattina speaking against the Union. This is partially confirmed by Lamattina and by Gromalski who admitted telling Klugman that she was against unions. Klugman testified further that Kretschmer had told him of Union Representative Pohmer's surprise at hearing of the number of holidays provided by the Company and had called the Union "a bunch of phonies." This is partially corroborated by Kretschmer, who admitted telling Klugman of Pohmer's surprise at the number of holidays provided the employees by the Respondent. Klugman testified further that Mandia had told him that he did not know what to do about the Union and asked his advice. Mandia admittedly asked Klugman what he thought about the Union. In sum, I find and conclude that the Respondent had a good-faith doubt as to the Union's majority when the Union demanded recognition on the basis of the authorization cards Since I have found that the Respondent did engage in unfair labor practices in violation of Section 8(a)(1) of the Act, the question arises whether the Respondent's conduct vitiated Respondent's demonstrated good-faith doubt of the Union's majority. In approaching this question, I am mindful of the Board's admonition in Cameo Lingerie, Inc., 148 NLRB 535, at p. 538: But the question whether an employer who commits violations of Section 8(a)(1) also intends to undermine the union's majority or otherwise to defeat the employees' unionization may not be answered mechanically; it must turn upon a consideration of all relevant circumstances. Similarly, in the more recent case of Hammond & Irving, Incorporated, 154 NLRB 1071, 1073, the Board said: The Board has long held that an employer may insist upon a Board election as proof of a union's majority if it has a reasonable basis for a bona fide doubt as to the union's representative status in an appropriate unit. If, however, the employer has no such good-faith doubt, but refuses to bargain with the majority representative of its employees because it rejects the collective-bargaining principle or desires to gain time within which to undermine the union and dissipate its majority, such conduct constitutes a violation of Section 8(a)(5) of the Act. In determining whether the employer's action was taken to achieve either of the said invalid purposes, the Board considers all the surrounding circumstances as well as direct evidence of motivation. Absent such direct evidence, where extensive violations of the Act accompany the refusal to grant recognition, they evidence the employer's unlawful motive and an inference of bad faith is justified. . While unfair labor practices committed at or about the time of an employer's refusal to bargain often demonstrates the bad faith of the respondent's position, not every act of misconduct necessarily vitiates the respondent's good faith. 'The effect of the foregoing admission is not negated by the reason stated by Pohmer in a subsequent conversation with Klugman , in which he said that the reason he felt that the Union could not win an election was the information given to him by the employees , to the effect that it was impossible to win an election because of the tactics of the Company, viz, implied threats, giving people extra holidays, raises under the table, and all kinds of pressure 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To the same effect, see Clermont s Inc 154 NLRB 1397, 1400-01, Caldwell Packaging Company 125 NLRB 495, 496 After considering the entire record, I find and conclude that Respondent's unfair labor practices did not vitiate its good-faith doubt as to the Union's majority This is not a case where there is no direct evidence on the issue whether the employer had a good-faith doubt as to the Union's majority, and where the violations of Section 8(a)(1) are relied upon to infer a lack of good-faith doubt Rather, the Respondent has amply demonstrated its bona fide doubt, based orly on its two earlier experiences in the same context, but also fortified by Pohmer's admission that the Union could not win an election, as well as by antiunion statements of various employees See The Walmac Company 106 NLRB 1355, 1357 The General Counsel relies upon Galbreath Bakery Inc 163 NLRB No 41, and Fabricators Incorporated 168 NLRB No 21, in which the Board, although adhering to the principles enuciated above, nevertheless found that the unfair labor practices demonstrated the employer's lack of good-faith doubt I find these cases distinguishable In the instant case the Respondent's doubt was as to the existence of the Union's majority, while in the cases relied upon by the General Counsel, the employer's doubts were as to the appropriateness of the unit, which the Board held in Southland Paint Inc 156 NLRB 22, 23, "is not a defense to an otherwise meritorious charge of refusal to bargain " See, also, Galbreath Bakery Inc supra at fn 7 In sum, I find and conclude that the Respondent had a good-faith doubt as to the Union's majority and that the violations of Section 8(a)(1) did not vitiate the Respondent's good-faith Accordingly, insofar as it alleges a violation of Section 8(a)(5) of the Act, the complaint should be dismissed V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of General Stencils, Inc , set forth in section IV, above, occurring in connection with the operations of the Respondent 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 obstructing commerce and the free flow thereof VI THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act [Recommended Order omitted from publication