Milton Bradley Co.

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Playskool, Inc., a Division of Milton Bradley Com- pany and United Furniture Workers of America, AFL-CIO and Noemi Dominicci The Retail, Wholesale and Department Store Union, AFL-CIO, and Chicago Joint Board , Retail, Whole- sale and Department Store Union, AFL-CIO and United Furniture Workers of America, AFL-CIO Cases 13-CA-9186,13-CA-9205, and 13-CB-2988 February 25, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 22, 1971, Trial Examiner Paul E. Weil is- sued the attached Decision and on July 2, 1971, an Erratum thereto in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent Employer filed cross-exceptions and a supporting brief in answer to the General Coun- sel's exceptions. i Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and finds merit in the exceptions of the General Counsel. The Board, therefore, adopts the findings, conclusions, and recommended Order of the Trial Ex- aminer only to the extent consistent with the Decision herein. As more fully set forth in the attached Trial Ex- aminer's Decision, the Furniture Workers Union has since 1952 unsucessfully attempted to organize Play- skool's employees.' In November and December 1968, pursuant to petitions duly filed with the Board follow- ing Playskool's refusal to submit to a card check by an independent body, the Furniture Workers again lost separate Board-conducted elections at Playskool's Sac- ramento and Lawndale plants. Undaunted by the loss of the aforementioned elections, the Furniture Workers continued its organizational campaign and successfully solicited a number of new authorization cards during the period March-May 1, 1969. Although the cam- ' The Respondent Union filed a motion to strike the General Counsel's exceptions, contending they failed to comply with Sec 102.46 (b) of the Board's Rules and Regulations As the General Counsel's exceptions are in substantial compliance with our requirements, and make clear his position, we deny the Respondent Union's motion. ' Playskool, Inc., A Division of Milton Bradley Company, referred to herein as "Playskool," is the Respondent Employer The Retail, Wholesale and Department Store Union, AFL-CIO, and Chicago Joint Board, Retail, Wholesale and Department Store Union, AFL-CIO, referred to herein as "RWDSU," is the Respondent Union. United Furniture Workers of America, AFL-CIO, referred to herein as the "Furniture Workers" is the Charging Party. 195 NLRB No. 89 paign was kept on a low-key due to Playskool's demon- strated reluctance to accord recognition on the basis of a card check and the fact that the Board's rules nor- mally preclude a second election prior to the expiration of 1 year, the record reveals that Playskool's plant manager was well aware of the Furniture Workers' continuing organizational campaign and, in fact, had discussions concerning same with leading organizers for the Furniture Workers. Notwithstanding the, aforementioned knowledge of the Furniture Workers' continued interest, Playskool, pursuant to a request from the RWDSU which had recently commenced its own organizational campaign among the employees of Playskool located in the Sac- ramento and Lawndale plants, as well as a newly estab- lished warehouse located in Des Plaines, 15,miles out- side Chicago, agreed to a card check with the RWDSU to be held on May 2, 1969, before a conciliator of the Department of Labor, State of Illinois. Thereafter, without informing the Illinois Department of Labor of the Furniture Workers' continued interest, Playskool and the RWDSU submitted a payroll list and a number of authorization cards, respectively, to the Illinois De- partment of Labor. On May 2, 1969, the Illinois De- partment of Labor announced that the RWDSU did in fact represent a majority of the Playskool employees employed in the Des Plaines warehouse and Lawndale and Sacramento plants. Playskool then recognized the RWDSU as the majority representative, entered into negotiations, and subsequently executed a collective- bargaining agreement. Although crediting the foregoing summary of events leading up to Playskool's recognition of the RWDSU, the Trial Examiner found that inasmuch as no "ques- tion concerning representation" existed at the time of recognition, Playskool was not in violation of Section 8(a)(2) and (1) of the Act.' We disagree. Contrary to the Trial Examiner, this Board has never established any numerical percentage as a condition precedent to establishing the existence of a question concerning representation. In fact, the sole requirement necessary to raise a question concerning representation within the meaning of the Midwest Piping doctrine,' as modified by the Board, is that the claim of the rival union must not be clearly unsupportable and lacking in substance.' That such is is not the case herein is obvi- ous. Nor, again contrary to the Trial Examiner, do we, in circumstances such as exist herein, require the rival union to have a pending request for recognition, for the Board does not require a party to perform a futile act. ' According to the Trial Examiner, a question concerning representation exists only when the rival union represents a substantial number of em- ployees, "normally 30 percent," and has pending a current demand for recognition. i Midwest Piping & Supply Co., Inc., 63 NLRB 1060. 5 CF. American Bread Company, 170 NLRB 85 PLAYSKOOL, INC. The instant case presents a classic example of the evils which the rule enunciated in Midwest Piping, su- pra, was designed to prevent. Thus, as indicated above, Playskool was well aware of the Furniture Workers' continued interest in its employees and the fact that within the preceding 8-month period the Furniture Workers had secured enough cards to make the re- quired 30-percent showing necessary to proceed to a Board election. Additionally, we note that, although the Furniture Workers subsequently lost the elections, they did receive approximately 148 votes out of the 494 eligible voters employed in Playskool's Lawndale and Sacramento plants. Further, the Furniture Workers continued successfully to solicit additional authoriza- tion cards in furtherance of their organizational ac- tivity despite the defection of their chief organizer who had seen fit to switch his allegiance to the RWDSU and lead its newly formed campaign among Playskool's mostly Spanish-speaking employees. In the light of all these circumstances, we do not view the card check made by the State of Illinois Department of Labor, in the absence of participation by the Furniture Workers, to be an accurate- barometer of the employees' senti- ments.' This is particularly true in view of the record evidence indicating that a number of employees had seen fit to sign current authorization cards for both the Furniture Workers and the RWDSU. Such cards, of course, do not ultimately reflect the choice of the em- ployees' bargaining agent. Novak Logging Company, 119 NLRB 1573.' Had Playskool fulfilled its obligation and insured the participation of the Furniture Workers in the card check conducted by the Illinois Department of Labor, this infirmity, as well as other imperfections in the cards proffered by the RWDSU, would have been readily ascertainable.' Therefore, contrary to the Trial Examiner, we find that at the time of recognition a question concerning representation existed and that the subsequent investi- gation and resolution of that question was not attended by appropriate safeguards. Accordingly, under the cir- cumstances, we further find that Playskool's conduct in recognizing and bargaining with the RWDSU con- stituted illegal assistance within the meaning of Section 8(a)(2) and (1) of the' Act. We also find that the RWDSU violated Section 8(b)(1)(A) of the Act by ac- cepting exclusive recognition and entering into a collec- tive-bargaining agreement with the Employer at a time Intalco Aluminum Corporation, 169 NLRB 1034, enfd in part and set aside in part 417 F.2d 36 Additionally, the record discloses numerous errors in the employee complement lists submitted to the State of Illinois Department of Labor for purposes'of verifying the RWDSU's claim of majority status. Inasmuch as the RWDSU has commingled all authorization cards in its possession, and in view of the evidence which shows some cards were forged and others predated, it is impossible to determine at this time whether or not the RWDSU did, in fact, represent a majority on May 2, when it was accorded' recognition by Playskool 561 when there existed a real question concerning represen- tation of the employees. The Trial Examiner's dismissal of the 8(a)(3) portion of the complaint with respect to Rosa Rosa was predi- cated solely on the legality of the recognition and Play- skool's contract with the RWDSU which we have found to have been,unlawful. Accordingly, we find that the termination of Rosa Rosa's employment, caused by Playskool's illegal insistence that she execute an au- thorization or checkoff card for the RWDSU, violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Playskool, Inc., A Division of Milton Bradley Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent RWSDU and the United Furniture Workers are labor organizations within the meaning of Section 2(5) of the Act. 3. By recognizing Respondent RWSDU, by execut- ing a collective-bargaining agreement with RWDSU containing a union-security clause, and by maintaining in effect and enforcing the provisions of said contract, at a time when a question concerning the representa- tion of its employees existed, the Respondent Employer has rendered and is rendering unlawful assistance and support to RWDSU and has interfered with, coerced, and restrained and is interfering with, coercing, and restraining its employees in the exercise of Section 7 rights in violation of Section 8(a)(1) and (2) of the Act. 4. By causing the discharge of Rosa Rosa by its illegal insistence that she execute an authorization or checkoff card for RWDSU, Respondent Employer has violated Section 8(a)(3) of the Act. 5. By accepting recognition from Respondent Em- ployer and by contracting with the Respondent Em- ployer at a time when a question concerning the repre- sentation of Respondent Employer's employees existed, Respondent RWDSU restrained and coerced and is restraining and coercing employees in the exer- cise of rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY We have found that the Respondent Employer recognized the Respondent Union and thereafter en- tered into an agreement with it on June 11, 1969, all during the pendency of a genuine question concerning representation of the employees covered thereby. By such conduct, Respondent Employer has interfered with, restrained, and coerced its employees in the exer- cise of their right freely to select their own bargaining 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative and has accorded unlawful assistance and support to the Respondent Union, in violation of Section 8(a)(2) and (1) of the Act. In order to dissipate the effect of Respondent Employer's unfair labor prac- tices, we shall order Respondent Employer to with- draw and withhold all recognition from the Respond- ent Union and to cease giving effect to the aforementioned agreement, or to any renewal, modifi- cation, or extension thereof, until such time as Re- spondent Union shall have been certified by the Board as the exclusive representative of the employees in question. Having found that the Respondent Employer dis- charged Rosa Rosa in violation of Section 8(a)(1) and (3) of the Act, we shall order that the Respondent Employer offer employee Rosa Rosa immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of her discharge by payment to her of a sum of money equal to that which she would have earned as wages from the date of her involuntary termination to the date of offer of reinstate- ment and in a manner consistent with Board policy set forth in Senco Manufacturing Corp., 141 NLRB 1306, 1309, and Southern Coach & Body Co., Inc., 135 NLRB 1240, with interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716. We shall also order that Respondent Employer preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay. Having found the recognition of the RWDSU by Playskool to have been invalid and the subsequent bar- gaining agreement with its union-security provisions likewise invalid, we shall order Respondent Employer jointly and severally with Respondent Union to reim- burse all present and former employees, except those excluded below, for all initiation fees, dues, or other moneys paid or checked off , pursuant to the unlawful union-security agreements,' or any extensions, renew- als, modifications, or supplements thereof, or any su- perseding agreement. Reimbursement will not be or- dered, however, for those employees who voluntarily joined the RWSDU prior to June 11, 1969, the date on which the union-security clause was executed.10 We have also found that Respondent Union accepted recognition and thereafter on June 11, 1969, entered into a collective-bargaining agreement with Respond- ent Employer at a time when there existed a real ques- ' Interest at the rate of 6 percent per annum shall be added to such initiation fees, dues, or other moneys so checked off, to be computed in the manner set forth in Seafarers International Union of North America, Great Lakes District AFL-CIO, 138 NLRB 1142, fn. 2. 1° See Crown Cork & Seal Company, Inc., 182 NLRB 657, Lianco Con- tainer Corporation, 173 NLRB 1444. tion concerning representation of the employees cov- ered' thereby. By such conduct, Respondent Union has restrained and coerced Playskool's employees in the exercise of their right freely to select their own bargain- ing representative in violation of Section 8(b)(1)(A) of the Act. In order to dissipate the effect of Respondent Union's unfair labor practices, we shall order Respond- ent Union to cease maintaining or giving effect to its current recognition and collective-bargaining agree- ment with Respondent Employer to the extent that it covers Respondent Employer's plant and warehouse employees, or any renewal or extension thereof, until such time as the Respondent Union shall have been certified by the Board as the exclusive representative of the employees in question. In addition, we shall order that Respondent Union jointly and severally with Re- spondent Employer reimburse all present and former employees in the manner and to the extent set forth above. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that: - A. Respondent Employer, Playskool, Inc., A Divi- sion of Milton Bradley Company, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Assisting or contributing support to the Respond- ent Union, The Retail, Wholesale and Department Store Union, AFL-CIO, and Chicago Joint Board, Re- tail, Wholesale and Department Store Union, AFL- CIO, or to any other labor organization, by recognizing such labor organization as the exclusive representative of any of its employees for the purpose of collective bargaining at a time when there exists a real question concerning representation or in any other manner. (b) Giving effect to, performing, or in any way en- forcing the collective-bargaining agreement executed with Respondent Union on June 11, 1969, or to any modification, extension, renewal, or supplement thereto, or to any checkoff authorization cards ex- ecuted pursuant to said agreement, unless and until Respondent Union has been certified by the National Labor Relations Board as the exclusive bargaining rep- resentative of such employees; provided, however, nothing herein shall require Respondent Employer to vary or abandon any wage, hours, seniority, or other substantive features of its relations with its employees which have been established in the performance of this agreement or to prejudice the assertion by employees of any rights they may have thereunder. (c) Encouraging membership in, or activities on be- half of, The Retail, Wholesale and Department Store Union, AFL-CIO, and Chicago Joint Board, Retail, PLAYSKOOL, INC. Wholesale and Department Store Union, AFL-CIO, or any other labor organization, by discharging or in any other manner discriminating against its employees in regard to their hire or tenure of employment or any terms or conditions of employment. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist the aforesaid Union or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaran- teed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from The Retail, Wholesale and Department Store Union, AFL- CIO, and Chicago Joint Board, Retail, Wholesale and Department Store Union, AFL-CIO, as the represent- ative of its employees for the purpose of collective bar- gaining unless and until the said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of such em- ployees. (b) Offer to Rosa Rosa immediate and full reinstate- ment to her former position or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered as a result, of her constructive discharge, in the manner, set forth herein in the section entitled "The Remedy." (c) Preserve and, upon'request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Jointly and severally with Respondent Union reimburse all present and former employees at Play- skool's plants in Sacramento and Lawndale and the warehouse at Des Plaines, Illinois, except those who signed up for the RWDSU prior to the execution of the union-security clause on June 11, 1969, for all initiation fees, dues, arid other moneys, if any, paid by or with- held from them pursuant to the terms of the collective- bargaining agreement executed on June 11, 1969, or pursuant to any union checkoff authorizations ex- ecuted before the date of compliance with the Order, in 563 the manner provided in "The Remedy" section of this Decision: (e) Post at its plants in Chicago, Illinois, and its warehouse at Des Plaines, Illinois, copies of the at- tached notice marked "Appendix A."" Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent Employer's representative, shall be posted by Respond- ent Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (f) Post at the same places and under the same condi- tions as set forth in (e) above, as they are forwarded by the Regional Director, copies of Respondent Union's notice marked "Appendix B." Copies of said notice shall also be sent by Respondent Employer to its em- ployees. (g) Mail signed copies of the attached notice marked "Appendix A" to the Regional Director for posting at Respondent Union's offices and meeting halls. (h) Notify the Regional Director for Region 13, in writing, within 20 days from the' date of this Order, what steps the Respondent Employer has taken to com- ply herewith. B. Respondent, The Retail, Wholesale and Depart- ment' Store Union, AFL-CIO, and Chicago Joint Board, Retail, Wholesale and 'Department Store Union, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Accepting exclusive recognition as the represent- ative of Respondent Playskool's employees at the Sac- ramento and Lawndale plants and the warehouse located in Des Plaines or entering into a collective- bargaining agreement with Respondent Playskool as the exclusive representative of these employees'at a time when there exists a real question concerning repre- sentation. (b) Maintaining or giving effect to its contract of June 11, 1969, with the Respondent Playskool, or to any modification, extension, renewal, or supplement thereto, or to any union checkoff cards executed pursu- ant to said contract, unless or until it has been duly certified by the National Labor Relations Board as ex- clusive representative of such employees. 11 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any like or related manner restraining or coerc- APPENDIX A ing Respondent's Sacramento, Lawndale, and Des Plaines employees in the exercise of the rights guaran- teed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condi- tion of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action, which is necessary to "effectuate the policies of the Act: (a) Jointly and severally with Respondent Playskool, Inc., A Division of Milton Bradley Company, reim- burse all present and former employees, except those who signed up for RWDSU prior to the execution of union-security clause on June 11, 1969, at Playskool's plants in Sacramento and Lawndale and the warehouse at Des Plaines, Illinois, for all dues and other moneys, if any, paid by or withheld from them pursuant to the terms of the union-security provision of the collective- bargaining agreement executed on June 11, 1969, or pursuant to any union checkoff authorizations ex- ecuted before the date of compliance with this Order, together with interest at the rate of 6 percent per an- num. (b) Post at its offices and meeting halls copies of the attached notice marked "Appendix B."12 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent Union's president, shall be posted by Respondent Union immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Post at the same places and under the same condi- tions as set forth in (b) above, as they are forwarded by the Regional Director, copies of Respondent Play- skool's notice marked "Appendix A." (d) Mail signed copies of the attached notice marked "Appendix B" to the Regional Director for posting at Playskool's plants and warehouse and for mailing by Playskool to employees as provided herein. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. " In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government' WE WILL NOT assist or contribute support to The Retail, Wholesale and Department Store Union, AFL-CIO, and Chicago Joint Board, Re- tail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, by recognizing, or contracting with, such labor orga- nization as the exclusive representative of our em- ployees for the purpose of collective bargaining at a time when there exists a real question concerning representation or in any other manner. WE WILL NOT give effect to our June 11, 1969, agreement with The Retail, Wholesale and De- partment Store Union, AFL-CIO, and Chicago Joint Board, Retail, Wholesale and Department Store Union, AFL-CIO, or to any renewal, exten- sion, modification, or supplement thereof, unless and until said labor organization has been duly certified by the National Labor Relations Board as the exclusive representative of our employees, but nothing herein shall be construed to require that we vary or abandon any existing term or condition of employment. WE WILL NOT encourage membership in, or ac- tivities on behalf of, The Retail, Wholesale and Department Store Union, AFL-CIO, and Chicago Joint Board, Retail, Wholesale and De- partment Store Union, AFL-CIO, or any other labor organization, by discharging or in any other manner discriminating against our employees in regard to their hire or tenure of 'employment or any terms or conditions of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Furniture Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from engaging in any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL withdraw and withhold all recogni- tion,from The Retail, Wholesale and Department Store Union, AFL-CIO, as the collective-bargain- PLAYSKOOL, INC. ing representative of our employees unless and until said labor organization has been certified as such by the National Labor Relations Board. WE WILL offer to Rosa Rosa immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion; we will restore all rights of seniority and other rights and privileges enjoyed by her; and we will make her whole for any loss of pay and other emoluments suffered by reason of our discharge of her. WE WILL jointly and severally with the Union, RWDSU, reimburse all present and former em- ployees, except those who signed up with the RWDSU prior to the execution of the union- security clause on June 11, 1969, for any initiation fees, dues, or other moneys paid or checked off pursuant to the aforesaid agreement with The Re- tail, Wholesale and Department Store Union, AFL-CIO, and Chicago Joint Board, or to any extension, renewal, modification, or supplement thereof, or to any agreement superseding it. PLAYSKOOL, INC., A DIVISION OF MILTON BRADLEY COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 881, Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT accept recognition as the repre- sentative of Playskool's employees or enter into a contract with Playskool as the exclusive represent- ative of these employees at a time when there ex- ists a real question concerning representation. 565 WE WILL NOT give effect to our contract of June 11, 1969, with Playskool, Inc., A Division of Milton Bradley, or to any renewal, extension, or supplement thereto, or to any union checkoff cards executed pursuant to said contract, unless or until we have been duly certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL, with Playskool, reimburse all present and former employees, except those who signed up with us prior to the execution of the union-security clause on June 11, 1969, for any initiation fees, dues, or other moneys paid or checked off pursu- ant to our June 11, 1969, contract with Playskool, or any renewal, extension, modification, or supple- ment thereof. WE WILL NOT in any like or related manner restrain or coerce employees of the above-named Company in the exercise of rights guaranteed in Section 7 of the Act. THE RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO AND CHICAGO JOINT BOARD RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 881 , Everett McKinley Dirksen Building, 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On June 13, 1969, United Furniture Workers of America, AFL-CIO, hereinafter called the Charging Union, filed a charge with the Regional Direc- tor of Region 13 of the National Labor Relations, hereinafter called the Board, against Playskool, Inc., A Division of Mil- ton Bradley Company, hereinafter called Playskool, alleging acts and conduct in violation of the National Labor Relations Act, hereinafter called the Act. Thereafter, on June 24, No- emi Dominicci, an employee of Playskoo'l, filed a charge against Playskool alleging further conduct in violation of the 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. On September 11, 1969, the Charging Union filed a charge against the Retail, Wholesale and Department Store Union, AFL-CIO, and Chicago Joint Board, Retail, Whole- sale and Department Store Union, AFL-CIO, hereinafter jointly called the Respondent Union, alleging that the Re- spondent Union engaged in conduct in violation of the Act. Thereafter the Charging Union amended its charge against the Respondent Union on September 25 and December 8, 1969, and its charge against Playskool on December 8, 1969. On October 12, 1970, the Regional Director for Region 13 (Chicago, Illinois) issued an order consolidating all of the cases set forth above and a consolidated complaint and notice of hearing alleging that Playskool violated Section 8(a)(1) and (2) of the Act by assisting the Respondent Union in the organization of its employees , by recognizing Respondent Union as the representative of its employees in three different plants operated by Playskool at a time when Respondent Union did not represent an uncoerced majority of the em- ployees, and by thereafter engaging in a campaign of coercion requiring its employees to sign authorization cards and dues deduction cards for Respondent Union. The complaint also contains an allegation that Playskool discriminated against Noemi Dominicci by giving her less desirable employment because she engaged in activities in opposition to the organi- zation of Respondent Union and on behalf of the Charging Union. The complaint also alleges that the Respondent Union violated Section 8(b)(1)(A) of the Act by restraining and coercing employees and causing or attempting to cause their discharge in the event they did not sign dues deduction and union authorization cards for Respondent Union and by demanding and receiving recognition from Playskool as the representative of all the employees in a unit consisting of the employees of three plants operated by Playskool at a time when it did not represent an uncoerced majority of the em- ployees in said unit. By duly filed answers both Respondents admitted various facts including the jurisdiction of the Board over the activities of Playskool, admitted that Playskool had recognized Re- spondent Union as an exclusive collective-bargaining agent for the unit alleged in the complaint, but stated affirmatively that the recognition took place after a certification and card check by the Department of Labor of the State of Illinois conducted on May 2, 1969, and that Respondent Union represented an uncoerced majority. Respondents specifically admitted that they had entered into a collective-bargaining agreement on June 11, 1969, which contained a union- security clause and that pursuant to the said agreement Play- skool permitted representatives of Respondent Union to enter on Playskool's premises to represent Playskool's employees. Additionally Respondent Union admitted that its agents had solicited employees of Playskool to sign dues deduction and union authorization cards but denied that any coercion or duress was employed in such solicitation. Respondent Em- ployer specifically denied any discrimination against Noemi Dominicci.' On January 12, 1971, the General Counsel, by the Regional Director for Region 13, issued an amendment to the con- solidated complaint which in effect clarified the language of the prior allegations and added a further allegation that dur- ing the months of March and April 1969 Playskool con- ducted 'meetings of its supervisors during which they were ' The General Counsel additionally alleged that Playskool had violated the Act by permitting two employees of a plant in Massachusetts to take leaves of absence to assist the Respondent Union to coercively organize the employees with which we are here concerned . No evidence supporting the allegation was received and the allegation was dismissed at the close of the General Counsel's case-in-chief. instructed to persuade employees to sign union authorization cards for the Respondent Union. The complaint was further amended at the hearing by the addition of an allegation that Respondent Union restrained and coerced an employee, So- phie McAuley, because of her testimony during the course of the hearing. The allegation was denied by Respondent Union and will be dealt with below. After the issues were joined I conducted a joint conference in Chicago among the parties, at the request of the General Counsel, at which the various issues were explored and delin- eated and provisions were made for the exchange of sub- penaed data between the parties before the opening of the hearing with adequate time to study such data. The hearing was opened in Chicago on January 25, 1971, and continued on various dates thereafter until February 26, 1971. All par- ties with the exception of Noemi Dominicci were represented by counsel. Mrs. Dominicci was present at the hearing. All parties had an opportunity to call witnesses, examine and cross-examine them, to adduce relevant and material evi- dence, argue on the record, and file briefs. Briefs have been received from the General Counsel and both Respondents. Upon the entire record' in this matter and in consideration of the briefs I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT EMPLOYER Playskool is a Delaware corporation which operates two plants in Chicago known as the Lawndale and Sacramento plants, at which it manufactures toys and games. Playskool is a division of Milton Bradley Company which also manufac- tures toys and games in other plants and in other States. Playskool annually manufactures and distributes toys, games, and related products valued in excess of $1 million and annu- ally ships its product valued in excess of $50,000 out of the State of Illinois. Playskool is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Charging Party and Respondent Union are both labor organizations within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background Playskool has operated plants in the Chicago area for many years. The Charging Union, which has collective-bargaining agreements with Playskool covering plants in Hampshire, Illinois, and South Bend, Indiana, has attempted to organize the employees of Playskool's Chicago plants since 1952 with- out success. In 1968, in November and December, elections were conducted by the Board separately among the em- ployees of the Sacramento plant and of the Lawndale plant on petitions filed by the Charging Union. The Charging Union lost both elections. Prior to the elections the Charging Union asked the Company for recognition based on a card check but was referred to the Board. Milton Bradley Com- pany purchased Playskool as a wholly owned subsidiary in August 1968. Shortly prior to that time John W. Sharon had been appointed personnel director with the function of estab- lishing personnel policies and practices, wage and salary ad- ministration, employment, labor relations, and organiza- tional control. Sharon set up a centralized personnel function standardizing forms, practices and procedures among the various plants of Playskool, the two here involved, another ' Respondent Playskool's unopposed motion to correct the record, is hereby granted PLAYSKOOL, INC. 567 plant known as the Halsam plant' located northwest of Chicago and the Hampshire plant located some 60 miles away. On April 11, 1969, Playskool shut down a warehouse which it had operated at a place called North Lake and opened a new warehouse known as the Des Plaines ware- house. The Des Plaines warehouse, which is about 15 miles from the Playskool main office in Chicago, was designed to provide warehouse space for the use of all the production plants and resulted in the elimination of the North Lake warehouse and a warehouse at the Hampshire facility. It was opened with 26 or 28 employees, many of whom had been hired prior to its opening and trained at the various production plants for transfer to the Des Plaines warehouse. When the Charging Union commenced its 1968 organizing campaign its agents made house calls at the homes of the employees of the Lawndale and the Sacramento plants. When this came to the attention of Playskool, Personnel Manager Sharon caused to be sent to all employees letters advising the employees that they did not have to admit the union agents and warning them against signing anything that they did not fully understand. The letters also warned the employees that if the Union had their names and addresses it would send paid professional organizers who might attempt to pressure them into signing up for the Union and agreeing to support it even though they do not wish to do so. Agents of the Respondent Union commenced making house calls on the employees in March 1969. This immedi- ately came to the attention of Sharon through the reports of supervisors who were informed by the employees. On this occasion, however, Sharon sent no letters to the employees nor did he inform them of their rights of privacy or warn them against the Union. Sharon caused meetings to be held among the supervisors of the two plants; one he conducted himself, the other was conducted by another company offi- cial. At the meeting he conducted Sharon advised the super- visors of the name of the union that was organizing the plant and advised them that he had investigated and found that it was a good union and did not call strikes or present many grievances. Sometime late in April Respondent Union contacted the attorneys for Playskool and stated that it represented a majority of Playskool's employees at the two production plants, Lawndale and Sacramento, and at the newly opened warehouse in Des Plaines, Playskool's attorney contacted the Company and informed them of this statement and of Re- spondent Union's request that it be recognized on the basis of a card check. After communication between Sharon, Play- skool's executives based in Chicago and Milton Bradley's executives based in Springfield, Massachusetts, it was decided that Playskool would agree to a card check with Respondent Union and Playskool's attorney was so advised. He there- upon made arrangements with Respondent Union for such a card check to be conducted before a conciliator of the Depart- ment of Labor of the State of Illinois. Sharon busied himself with collecting the names of the employees presently em- ployed in the two plants and the warehouse. He had no independent recollection of the number of names submitted for the purposes of the card check but in his opinion it was around 502 or 503. He attended the card check with counsel and other representatives of the Employer. The Union was represented by Robert Anderson who brought a box of union authorization cards which were turned over to the state con- ciliator. After the card check, according to the testimony of Sharon, he was advised by the conciliator that the Union had ' The employees at the Halsam plant are represented by a local of the Teamsters Union some 30Q valid cards out of 502 or 503 employees and that a letter of certification would thereafter be issued. Negotiations for a contract commenced in mid-May. Six or seven negotiating meetings were held after which the parties agreed on two separate contracts, one covering the Lawndale and Sacramento production plants and the other covering the Des Plaines warehouse as a separate unit. Both contracts contained union-security clauses providing that all employees must join within 30 days. In July and August representatives of the Respondent Union went to the Sacramento and Lawndale plants where they addressed the employees in small groups, soliciting them to sign dues deduction authorization cards and union author- ization cards. At both plants they met resistance among the employees and on occasions told employees that they would have to sign cards or they could be terminated under the terms of the union-shop clause in the contract. A visit for the same purpose was made to the Des Plaines warehouse in August. There is no evidence that the failure of any employee to sign either a union authorization card or a dues deduction card resulted in any action being taken by Playskool to termi- nate the employees. To the extent that the General Counsel has alleged that employees were discriminated against by being discharged for failure to sign such cards, the allegation is unsupported on this record and I recommend that it be dismissed. B. Discussion and Conclusions The General Counsel contends that Playskool violated Sec- tion 8(a)(2) of the Act by coercing the employees prior to recognition to sign authorization cards for the Respondent Union and that at the time of recognition Respondent Union did not in fact represent an uncoerced majority of the em- ployees in any unit. Before this issue is reached however the issue is raised whether Playskool had not engaged in assist- ance of Respondent Union simply by recognizing it all during the existence of a question concerning representation. The General Counsel argues that the Charging Union, although it had lost the elections in November and December in the two plants which constituted the bulk of the unit which Play- skool thereafter recognized, had continued and was continu- ing its organizational attempt, continued to have at least as much support as it had theretofore, and that accordingly a question concerning representation as between the two unions existed. Of course the situation was somewhat com- plicated by the fact that the Charging Union could not peti- tion the Board for an election under the Board's procedures which normally preclude the holding of a second election within a year of an earlier election. As the United States Court of Appeals for the Fifth Circuit recently said in Oil Transport Co. v. N.L.R.B. (76 LRRM 2609) enforcing a Board order at 182 NLRB No. 148; (the employer) may not determine for his employees the question of representation, thereby' avoiding the orderly procedures required for determination of that question . this Circuit has discussed at length the obligation of the employer where there are competing unions and "the situation [has] not crystalized," not to exert influence thereby tipping the scales and depriving the employees of their right to select their representative in a free con- test between the rival organizations .... Cases of this nature pecularily turn on the facts. The General Counsel supported his argument with the testimony of organizers Angilello and Szarek of the Charging Union, that after they lost the election in October and November they continued to contact the employees at the plant, although not to as great an extent as they had before 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the election. They had monthly meetings with the group of employees who were active as a sort of organizing committee and they signed up a few more employees although they made no determined effort to organize anew in view of the fact that they had theretofore been informed by Respondent that it would not recognize them without a Board certification, and until the year, or most of the year had elapsed since the last election, a new petition could not be filed and new employee support need not be memorialized by the signing of authori- zation cards. Respondents produced Joseph Coles who had been an or- ganizer for the Industrial Unions Department of the AFL_ CIO assigned to assist the Charging Union in the 1968 organ- izing campaign. Coles testified that after the elections in December he met at the IUD headquarters with Robert, Christenson, Angilello, and Szarek to analyze the campaign. As they were leaving he heard Angilello say words to the effect that the employees at Playskool did not want the Union and he did not want anything more to do with them.' An- gilello and Szarek were recalled in rebuttal and testified that no such statement was made by them and that they at no time proposed to walk away from the organization at Playskool. They were supported in this testimony by Robert Christenson who is identified as a United Steel Workers organizer but had been employed by the Industrial Union Department of the AFL-CIO at the relevant time. Christenson testified that he was present at the meeting referred to by Coles and that he did not hear Angilello say anything to the effect that the furniture workers were giving up any attempts to organize the employees of Playskool because they did not want to be or- ganized. I credit the testimony of Angilello, Szarek, and Christenson that no such statement was made by Angilello and I further credit the testimony of Angilello and Szarek and of various employees that the Charging Union continued its interest in the employees of Playskool although certainly it was not organizing with the same intensity that it had been organizing prior to the election. Generally the Board looks with disfavor upon recognition based on a card check in a two-union situation.' Clearly the rationale of the Board is based on the fact that in a two-union situation during the heat, of conflicting campaigns employee sentiment is 'not so crystalized in favor of one or the other union that the inherent unreliability of authorization cards as a method of determining majority status is overcome. But Respondents' argue that in the instant situation there was no heated rivalry. On the contrary, the campaign of the Charg- ing Union, if it existed at all, was dormant and the only choice under consideration by the employees was between no union and the Respondent Union. However this argument too is subject to qualification. A large number of the employees of Playskool in the three plants are Spanish-speaking persons, many of whom speak little or no English.' It can well be questioned whether the issues were in fact so clear to the employees especially in view of the fact, that the Respondent Union Agents Galladora, Anderson, and Coles spoke no Spanish. Additionally it could very well have been a matter of confusion to the employees that Joseph Coles who had appeared as an organizer for the Furniture Workers in the last month of 1968 reappeared as ' Coles testified that in early April he was assigned to assist the Respond- ent Union in its organizational attempt and did so both before and after recognition. ' See Oil Transport Company, 182 NLRB No. 148, and the discussion of this point therein. 6 It was necessary for interpreters to be used at the hearing with a large number of the employee witnesses on both sides an organizer for the Respondent Union in the spring of 1969.' These factors do not in themselves appear to be dispositive of the issue. Where the Board has almost uniformly required that the employer maintain a position of strict impartiality is in the specific type of a two-union situation where a question concerning representation exists. The term "question con- cerning representation" is a term of art in this field, it has a very specific meaning. Two factors must be present. First the union which raises the question must be able to show a sub- stantial representation among the employees, normally 30 percent,, either by cards, petitions, or other evidence and second, both unions must have demanded or requested recog- nition from the employer. The Board usually speaks in terms of "competing claims." In the instant case such a demand was made by the Charging Union prior to the elections in 1968, but those elections resolved at that time the then appearing question concerning representation and no such question was raised thereafter. Although the Charging Union manifested its continuing interest by continuing, to conduct monthly meetings with its employee organizers and occasionally pro- curing the signature of an employee on an authorization card, it made no contact with Playskool at any time prior to the recognition in an attempt to raise the question.' Under these circumstances it appears to me that the Respondent Union and the Employer were in a position no different than a single-union situation where the employer is free to recognize the Union upon its satisfaction that the Union is majority representative based on a card check or any other means that the parties choose. An election could not be held among the employees of the Lawndale and Sacramento plants until a year had elapsed except under extraordinary circumstances not here shown to exist. Under all these circumstances I see no violation implicit in the recognition by the Employer unless one of two factors appears; either that the employees were subject to coercion by either of the Respondents prior to recognition or that the card check itself was erroneous and the Respondent Union did not in fact represent a ,majority of the employees in the unit. These then are the issues with which I am herein concerned. The Alleged Prerecognition Coercion The General Counsel contends that the evidence herein shows that assistance to the Respondent Union began some- time in April 1969. He contends that this assistance was demonstrated by the fact that although Playskool had re- quired the Charging Union in the past to demonstrate its majority claims by election , each of which was lost, when Respondent Union claimed to represent a majority, the Em- ployer recognized it on the basis of a card check . This circum- stance standing alone does not appear to me to be in anyway tinged with illegality. It is not unlawful for an employer to recognize a union on a card check nor is it unlawful for an employer to insist on an election . In the circumstances of this case I cannot find unlawful preferment by Playskool of Re- spondent Union in its recognition after a 'card check con- ' It is not possible to assess whether the employees were confused By the time of the hearing, after investigation by the General Counsel and the Respondents, employees who were called to testify, appeared clearly to understand the difference between the two unions No doubt polarization has been accomplished by the pretrial investigative procedures attendent upon the filing of the charge 8 I do not credit testimony of Dommicci and Galladora that petitions were signed, prior to recognition, protesting recognition. From the tes- timony of Dominicci and the contradiction thereto in her testimony on cross-examination and her affidavit, and from the wording of the petition, I conclude it was first promulgated after recognition It was never presented to Playskool. PLAYSKOOL, INC. 569 ducted by an impartial third party or in its determination prior to the card check that it would recognize the Respond- ent Union if the card check revealed it to be the majority representative of the parties. Playskool surely reacted differently toward the two unions. In 1968 Playskool refused to recognize the Charging Union on the basis of a card check. This can scarcely be held to be unreasonable in view of the fact that on prior occasions Board-conducted elections revealed that the Charging Union did not in fact represent a majority of the employees as it contended. Respondent admittedly investigated the Respond- ent Union before it agreed to a card check and found that it was a union that was not prone to engage in strikes and was otherwise acceptable to it. It is not illegal for an employer to reach the conclusion that it will not fight a union organiza- tion. While the treatment accorded the two unions in differ- ent years was disparate, I find no illegality attached thereto. The General Counsel would have me find interference in Playskool's failure to warn employees against union organiz- ers coming to their homes as it had done during the inception of the Charging Party's organizational campaign in 1968. I know of no requirement that an employer has to contest the union organization or in anyway take part in the employees' determinations whether or not to organize. The General Counsel would have me find restraint and coercion in that Playskool advised the supervisors that they should not contest the organization by Respondent Union among the employees. To the extent that the testimony of former Foreman Rubin Lopez might raise an inference that Playskool instructed its supervisors to actively support the organizational campaign of Respondent Union I reject such an inference. There is no evidence that Lopez or any other supervisor at any time prior to the recognition addressed any employee with regard to their determination of whether or not to sign a card for Respondent Union. The record contains many instances of employees whose cards signed on behalf of the Respondent Union bear dates prior to recognition but who testified that they signed the cards only in response to urging and sometimes threats that they would not be allowed to continue working if they did not sign the cards. This could be construed as evidence of prere- cognition threats. In each of these cases I find that the coer- cion took place long after recognition and after the entering into of a contract bearing a union-security clause and the cards were backdated by persons other than the signers.' The General Counsel argues in its brief that additional evidence of assistance by Milton Bradley, the owner of Play- skool, was its grant of leaves of absence to two employees to assist Respondent Union in its campaign. The allegation with regard to this grant was dismissed at the close of the General Counsel's case because the General Counsel adduced no evi- dence in support of it. The record reveals that two'employees of Milton Bradley's plant in Springfield, Massachusetts, took leaves of absence at the request of Respondent Union's Inter- national organization to assist in the campaign in Chicago. There is no evidence whatsoever that Playskool or Milton Bradley had any knowledge of the reason these employees took a leave of absence or were even aware of the fact that they were engaging in the organizational activities in Chicago. The General Counsel further submits "that it is more than curious that Milton Bradley has a contract with RWDSU." Curiosity can hardly be viewed as substantial evidence. It ' Throughout the hearing the General Counsel while adducing such evi- dence declined to state whether his position was that the cards were signed prior to the recognition, on the dates they bore, or after recognition and were backdated. might be noted that Playskool also has a contract with the Charging Party. This does not appear to arouse the General Counsel's curiosity. Finally the General Counsel contends that Playskool inter- fered with the organization by Respondent Union by permit- ting its organizers to enter the plant for organizational pur- poses prior to recognition. Quite aside from the fact that there is no substantial evidence that this was done other than the evidence of ex-Foreman Lopez who stated that he saw them in the plant prior to recognition, equally there is no evidence that at any time the Charging Union sought such a privilege. - I cannot find disparate treatment under these circumstances. As far as Foreman Lopez' testimony is concerned, he was so obviously mixed up with regard to the time of various occur- rences and unsupported by any credible evidence on the record in his assertion in this regard that I do not credit him. It is clear that in June, after recognition, representatives of the Respondent Union were permitted in the plant and walked through it, although there is no evidence that at that time they engaged in any organizational activities. Later, in July, after the Respondents entered into their contract, ad- mittedly Respondent Union's organizers were permitted in the plant and facilities were given them to sign up the em- ployees both on union authorization cards and on dues de- duction cards. I shall deal with this later. I conclude that there is no substantial evidence on the record on which I can find that prior to May 2, the date of recognition, Playskool unlawfully assisted Respondent Union or interfered with, coerced, or restrained any employee with regard to Respondent Union's campaign. The Card Check We come now to the validity of the card check. The Gen- eral Counsel contends that there is no evidence of what took place at the card check. In this he is correct. The evidence reveals that the card check was conducted by two representa- tives of the State of Illinois in their offices, representatives of no party were present while the cards were checked and neither of the state officials were called to testify. However, the witnesses called by Respondents testified that pursuant to an agreement for a card check the Playskool officials gathered together a list, on cards, of all the employees in the unit and the representatives of the Respondent Union gathered together all of the cards signed by employees of Playskool, that the list and the cards were handed over to the state conciliators and that thereafter one of the conciliators re- turned the list to the Employer, the cards to the Union and stated that the Union had in excess of 300 cards in a unit consisting of something over 500 employees and that their check revealed that the Union had cards for a majority of the employees. The state conciliator further was quoted as telling the Respondents that the result of the card check would be confirmed by letter.'The record contains a letter purportedly prepared by the conciliators and admittedly received by counsel for Playskool.10 The union agents who took the cards to the card check stated that they had no recollection of the number of cards they took. Union Representative Anderson testified that there were 340 or 346, Representative Galladora, who had been instructed by Anderson to count the cards, testified at 10 No attempt was made to call the state conciliators as witnesses nor to establish any foundation for the receipt of the letter other than as a docu- ment recieved by counsel. I called the latter to the attention of the parties and stated that I did not receive the letter as evidence of the result of the card check, in view of the complete lack of foundation therefor. Neverthe- less no party attempted to establish a foundation or even to have the letter certified as an official report of a governmental agency. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various times that the number was from a little over 300 to a total of 325. Representative Sanzone, who accompanied them to the conciliators' office, said that he understood that they had 300 or 319. Playskool's personnel manager, John W. Sharon, testified that he submitted an employee list in the form of 3 by 5 cards and additionally a list of as many as 12 to 15 employees from the Des Plaines warehouse. He stated that his recollection of the count was 502 or 503 and he did not recall whether the figure included the warehouse em- ployees or not. He also testified that after the card count the conciliator told him that the Union had 300 cards and that there were 503 in the unit. The Regional Office issued a subpena sometime in 1969 for the production of the Union's cards as well as for the production of Playskool's list of employees as of May 2. In July 1970, after litigation, the subpena was enforced. In the interim period, according to the testimony of Respondent Union's Agent Anderson, the cards of Playskool's employees were kept in a box at the Union's offices and additional cards were thrown into the box. When the subpena was enforced, according to Anderson, all cards bearing dates prior to May 2 and including May 2 were furnished in response to the subpena. It is clear from his testimony that the subpena was not complied with inasmuch as no segregation of the cards handed to the state conciliator was accomplished and the intermingled cards were sorted out solely on the basis of the date they bore. Testimony during the hearing convinces me that many cards were backdated and that some cards, al- though dated on May 2 or prior thereto, were not received by the Respondent Union until after the card check. I can draw no conclusion of illegality from the failure by Respond- ent Union to comply with the terms of the subpena under the circumstances shown here. Similarly a subpena issued in 1969 and was ultimately enforced in 1970 requiring Playskool to submit to the General Counsel a copy of the list of employees submitted by it to the state conciliation service. The list sub- mitted pursuant to the subpena was not identical with the list prepared from the cards presented at the hearing herein and thereafter by letter Playskool informed the General Counsel of additional changes that should be made to the list. The General Counsel contends that by submitting authori- zation cards in response to the subpena, that could not have been those cards called for by the subpena, both Respondents are guilty of a violation of Section 12 by attempting to deceive the Board in its investigation of the unfair labor practices and by willfully preventing, impeding and interfering with the Board's duties in the investigation of these cases. General Counsel further contends that these acts clearly violate Sec- tion 8(a)(1) of the Act. The General Counsel relies on the Board's decision in Kohler Company, 128 NLRB 1062, 1100; Frisch Contracting Service Co., 149 NLRB 29. I read neither case as supportive of the General Counsel's contention herein and indeed Frisch seems to contradict it. As the Board found in Frisch the Section 12 issue is not before me. Without regard to the actual lists furnished the concilia- tors, the real issue is whether the Respondent Union repre- sented a majority of the employees at the time of the card check. While the General Counsel appears to contend that there is no evidence of the validity of the card check, he made no attempt to adduce evicence that it was invalid other than to attack the list and the cards furnished the conciliator. The only evidence on the record with regard thereto is that some- thing over 300 cards were submitted to the conciliator who found that some 300 of them were valid." It is apparent that the cards furnished the General Counsel in response to his subpena and identified by Union Agent Anderson as the cards furnished to the conciliator to the best of his knowledge include many cards that were in fact signed after the date of the card check and include additionally five cards concerning which the employees whose names they bear testified that they did not sign and six duplicate cards. But the record also reveals that in response to a subpena for the cards of Play- skool employees collected by Respondnet Union after the card check an additional group of cards was furnished which included all the cards other than those furnished and iden- tified as those handed the conciliator. These cards contained, inter alia, some 395 undated cards. In view of the testimony of Anderson that in response to the initial subpena he di- rected his office employees to sort out all the cards bearing dates of May 2 and prior thereto, and that in return of the second subpena he furnished all of the remaining cards, it appears that a necessary inference must be that among those cards which were not supplied in response to the first sub- pena, i.e., the 395 undated cards, were sufficient cards to have enabled the conciliator to determine that there were 300 or more valid cards. There is no contention that the unit ever included over 550 employees. Accordingly 300 cards would at any time constitute a majority of the then existing em- ployee complement. The General Counsel misinterprets the rule with regard to the duty to go forward with the evidence. The General Coun- sel contends that it is the duty of Respondents to prove that the cards were valid and that the card check was validly conducted. But this is not the case. In a recent decision,. American Beef Packers, Inc., 187 NLRB No. 135, the Board pointed out that the General Counsel therein completely failed to prove the number of employees who had authorized the union at the relevant time to represent them. As I read that case, the General Counsel's burden is to prove that the Union did not in fact represent a majority at the relevant time. Here the General Counsel has done no more than attack the cards which were presented by Respondent in response to its subpena calling for the production of the cards furnished the conciliator and proved that some of those cards clearly could not have been furnished the conciliator. This does not support a finding that the conciliator did not have what he is reported to have stated that he had; i.e., over 300 or more valid cards. The mistake in the General Counsel's contention is the assumption that only those cards supplied in response to the subpena need be considered. There is no evidence on the record that the conciliator did not find 300 valid authori- zations from the cards submitted to him. While it is obvious that the General Counsel's burden would be very difficult, he alleged that Respondent Union- did not have an uncoerced majority and his proof does not support this allegation. While the evidence reveals that the 347 cards furnished in response to the subpena and claimed at the opening of the bearing by Respondent Union to be the cards given the conciliator could not all have been furnished the conciliator, his evidence shows also that over 300 cards were furnished to the concilia- tor, that the conciliator found 300 valid cards, and that more than 395 additional undated cards exist. This being the situa- tion, while I must find that the response to the subpena was at best careless," I cannot reach an inference that there were not 300 cards in existence. Accordingly there is no support for the allegation that the Respondent Union did not repre- sent an uncoerced majority as of the date of the card check. This being the case, I can find no violation of Section 8(a)(2) " This finding is based on the testimony of Sharon rather than on the purported letter from the conciliators which as I have stated above bears no foundation for that purpose. 11 Anderson testified that the cards were never segregated at the time the subpena was served or thereafter because he did not feel that the subpena would ever be enforced PLAYSKOOL, INC. 571 in the recognition of the Union pursuant to the card check under the circumstances of this case. The General Counsel argues that under the rule of Clement Brothers Company, Inc., 165 NLRB 698, enfd. 407 F.2d 127 (C.A. 5), that the post recognition conduct of Playskool in restraining and coercing its employees to sign both authoriza- tion and dues deduction cards for respondent union com- pounded by the backdating of "a whole host of cards" in an attempt to show execution prior to recognition relates back to the recognition itself tainting the entire claimed majority and rendering unnecessary the resolution by mathematical formula. I agree that a mathematical resolution of majority in the instant case is impossible because of the fact that the General Counsel has shown that the cards produced in re- sponse to his subpena and identified as those cards furnished to the conciliator obviously contain many cards which were backdated, others which were not received by the Respond- ent Union prior to the card check, and a few which were not signed by the persons whose name they bear. But as I have pointed out above, the General Counsel has not sustained his burden of disproving that in fact something over 300 valid cards were placed in the hands of the conciliator." While I do not condone the forgery of authorization cards by anyone, no evidence appears on the record to reveal that this was done by or with the knowledge of any agent of either Respondent. Nor can I condone the backdating of authorization cards which was clearly shown throughout the record. Neverthe- less I cannot draw an inference that either the backdating or the forgery of the cards or the, at least, careless selection of cards supplied in response to the subpena and identified as the cards given to the state conciliator had the effect of derogat- ing from employee rights in the face of the evidence that several hundred undated cards are in existence and that they were, prior to the subpena enforcement, mixed with the cards allegedly given to the conciliator and the further evidence that the conciliator found in excess of 300 valid cards. Ac- cordingly I cannot find that these elements would tend to relate back to the recognition itself or taint the entire claimed majority of the Respondent Union as contended by the Gen- eral Counsel. The General Counsel adduced a great deal of evidence to show restraint and coercion by both Playskool and Respond- ent Union's representatives after recognition and after the entering into of the contract on June 11. This restraint and coercion consisted of calling employees in groups or singly to meeting places and to offices of the Company where they were addressed by agents of the Union and told that they were now in a union shop and would have to sign cards for the Union. Additionally, evidence was adduced that Playskool's super- visors informed employees that they would have to sign cards or they would be subject to discharge or would have to stop working there. Finally evidence was adduced and is admitted 13 My review of the evidence reveals that at least 38 of the 347 cards identified as those furnished the conciliator were signed after the card check and left undated. The dates on some of them were admittedly affixed by agents of Respondent Union and with regard to others no identification of the person who dated the cards is made, Attached hereto as Appendix A is a list of the names of the employees whose cards I find to have been backdated. I reach this conclusion after a consideration of all the evidence in the case and consideration of the credibility of the witnesses who testified with regard to such cards. In addition I find that the cards of Margie L Dennison, Vera McGovern, and Rita Alberts were not signed by those individuals and that the card of Santa Colon was signed by her husband and there is no evidence that he was authorized to do so Furthermore the cards of Madgeline Bostic, Lucille I. Eddy, Esther Martinez, Margaret Morrissey, Clara Ociepka, Sara Rivera, and Alven Sobotka were mailed at a time too late for them to have been in the hands of Respondent at the time of the card check that,the personnel employees of Playskool have made it cus- tomary in hiring new employees to require them as a condi- tion of employment to sign dues deduction or authorization cards. The latter is clearly unlawful under the Act (Campbell Soup Company, 152 NLRB 1645) insofar as it required em- ployees to join the union prior to the expiration of 30 days after their hire and resulted in some cases in employees being subjected to dues and initiation fee deduction from their wages during that protected period. More of a problem exists however with regard to the coer- cion of employees after the expiration of 30 days to sign these cards. The evidence adduced by the General Counsel from employees reveals that in most if not all instances the union agents to whom the employees were sent had with them two kinds of cards, both dues deduction,and union authorization cards and that in some if not all instances the employees were informed that they must sign the dues deduction cards and that they had to join the Union. Whether the union agents in each instance carefully spelled out to the employees the refinements that an employee need not actually join the Union but must tender dues and initiation fees and that dues and initiation fees need not be checked off if the employee is prepared to make arrangements to send dues and initiation fees directly to the Union without a checkoff cannot be ascer- tained from this record. The union agents called to the wit- ness stand testified that in essence these refinements were pointed out to the employees. The testimony of a few of the employees, would seem to support the union agents' tes- timony. By and large the employees were not asked either on direct or cross-examination the precise words used by the union agents but their testimony was put in the more conclu- sionary form that they would not be, permitted to continue working unless they signed the cards. Throughout the hear- ing it is noticeable that the employees appeared to associate joining the Union with signing cards. This is of course not unusual, since one union or the other had been distributing cards over a long period of time. Additionally many of the employees who testified are not fully conversant with English. Some of them are almost to- tally unable to speak or understand English and were interro- gated on the witness stand through interpreters. It does not appear that more than a very few of the employees could be expected to have any sophistication whatsoever with regard to labor relations, Under these circumstances the reports of the employees reflect not only a difficulty in understanding what was said to them on the occasion of their interviews with union agents but an additional difficulty in understanding the questions propounded to them on the witness stand and in framing their answers thereto. I am not convinced that the record reveals by a preponderance of the evidence that the employees were required to do any more than the law permits under the terms of a valid union-security contract. The Board has many times held that it is violative for a union to seek the discharge of an employee for failure to comply with the union-security clause of a contract unless and until it has given that employee an opportunity to comply therewith and it is violative for an employer to discharge an employee under the terms of a union-security contract at the request of the union when that employer has reason to believe the employee has not been apprised of his duties under such contract. Here it appears to me that the Respondent Union did no more than is required of it under the law to bring home to the employees their duties under the contract to join or tender dues and initiation fees to the Union. Under the cir- cumstances of this case it was necessary for the union agents to put their message into terms which are meaningful to the employees whom they are addressing. I am not convinced 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the messages of the union agents to the employees either assembled in groups or singly were violative of the Act and I do not find that the circumstance of Playskool making space and employees available to the union agents for this purpose was violative of the Act. Accordingly I shall recommend that the complaint be dismissed with regard thereto. I have concluded above that Playskool has violated the Act by its practice of requiring employees when hired to sign union authorization or dues deduction cards or both. This is surely coercive under the Act but it does not appear to me to be the type of coercion that relates back to the initial recognition and taints it. Accordingly I reject the General Counsel's argument in that regard, based on the Clement Brothers Company, Inc., decision (supra). The Discharge of Rosa Rosa Rosa Rosa was an employee who was apparently com- pletely opposed to being required to sign an authorization or checkoff card for Respondent Union. The evidence reveals that she was sent to the office by her supervisor and informed that she had to sign such cards in order to retain her job. After hesitation and argument Miss Rosa signed the cards and thereafter left her employment. There is no evidence that she left for any reason other than the fact that she was re- quired to sign the card, and she testified that this was her reason for leaving. The General Counsel contends that be- cause she was coerced and restrained to sign the cards and quit because of such coercion and restraint that she was constructively discharged. Inasmuch as I have found above that the Respondents were not shown to have acted in excess of their lawful rights in requiring employees to join the Union and remit dues, I do not find that her voluntary termination resulted from restraint or coercion unlawful under the Act nor that under those circumstances it became a constructive discharge in violation of Section 8(a)(1) and (3) of the Act. Accordingly I shall recommend the dismissal of the allega- tion with regard to Rosa Rosa. Noemi Dominicci The General Counsel contends that Noemi Dominicci was discriminated against by the Respondent Employer because she engaged in activities on behalf of the Charging Union. Noemi Dominicci was employed at the Sacramento plant of Playskool working 4 hours a day on the floor as a production worker and 4 hours a day helping in the office. Her work in the office consisted of checking the workers' tickets, doing some bookkeeping, and payroll work on timecards. She tes- tified also that to some extent she was required to assist in the hiring process of new employees and that she escorted them from the personnel office to their work stations. While escort- ing the new employees she took the occasion to inform them of her opinion that Respondent Union was not good for the employees and that they would have to get rid of it. There- after at lunch and before and after work she would take petitions which she was having signed to the new employees for their signatures. On June 12 Personnel Manager Phil Jimenez asked her if, it was true she was having the petition signed by the new employees and asked why she was doing this. She apparently delivered herself of a diatribe against the Employer's treatment of the employees and of her and spoke of the need of a union but that she considered that the Union that had gotten in was trying to deceive the employees and that it was good for the Company and for the bosses but not for the employees. She accused the'Company of having fur- nished the Respondent Union with the addresses of the em- ployees so that its agents could go to their homes and collect signatures. Jimenez denied knowledge with regard that. He ended the conversation by telling her that she would have to stop her activities or he would have to get her out of the office, and informed her that the Company had ordered him to either be a friend of the Company or a friend of the em- ployees. Later that day according to Mrs. Dominicci's tes- timony Jimenez told her that he had been ordered by the main offices to take her out of the office and that she would no longer work in the office. According to Jiminez' testimony, in this interview, he told Dominicci that she had no business passing the petition dur- ing business hours and that she would have to stop it. To his recollection he talked to her twice, the second time 3 or 4 days after the first time. He stated that his recollection was that he told 'her that her actions were uncalled for, that he did not think she was doing the right thing, and that she might be in the losing end of it. He testified that he made approximately the same statements on both occasions. It appears that the incident or incidents occurred immediately after the contract between the Respondent Union and the Employer was signed. To the extent that there is any difference between the testimony of Dominicci and Jimenez, I discredit Dominicci. In her cross-examination her evidence was revealed to be erroneous in many respects. In attempting to account for the errors as they appeared in her cross-examination, Mrs. Domi- nicci shifted her ground to such an extent that little credit can be given to any of the testimony she gave except to the extent that it is corroborated by other more credible evidence. How- ever from the two stones it is clear that Mrs. Dominicci was removed from the office because of her participation during working hours in the postrecognition campaign against Re- spondent Union. The General Counsel contends that Play- skool acted disparately by permitting Respondent Union's organizers in July, August, and September to enter the plants and sign up the employees on dues deduction and authoriza- tion cards and by reducing Dominicci from her part-time job as office girl for her activities." I do not find that this is the normal disparate treatment case. The Employer with regard to Mrs. Dominicci has a right to insist that his employees use their working time for work. The employer who is a party to a valid union-security contract has a duty to see to it that his employees know of and are given an opportunity to comply with the union-security clause before the employer discharges them. These two duties appear to be in conflict in the instant situation, but I believe that the conflict is more apparent than real. The Employer in permitting the Respondent Union's agents to come in to the plant during working hours for the purpose of signing up employees to conform with their union- security contract was satisfying its obligation to its employees who had not theretofore joined the Respondent Union. If the Employer had invited or placed its employees at the disposal of an outside union in the face of an incumbent union it could have been guilty of an unfair labor practice. Having found that the Respondent Union was validly recognized, I find that it achieved the status of an incumbent union. Playskool by its recognition of Respondent Union was not required to open the door to a free use of its, working time to any other union for the purpose of dislodging the newly recognized incum- bent. I find that the Respondent, as it contends in its brief, took the minimum action in removing Mrs. Dominicci from " General Counsel does not contend that Dominicci was out of the unit on May 2 by reason of the fact that she was working part time in the office However the General Counsel does contend that another employee, Lydia Rodriguez, should not be considered part of the unit for the same reason Rodriguez, it appears, spent 2 or 3 hours a day working in the office whereas Dominicci spent 4 hours a day The description of the work of the two girls appears to indicate that they were doing the same thing, Were Ito reach the General Counsel's contention with regard to the unit, I would find that Miss Rodriguez is a member of the unit as I find Mrs. Dommicci to be PLAYSKOOL, INC. 573 the office to meet the problem occasioned by her use of her position in the office to build up resistance among the new employees to representation by the Respondent Union. Mrs. Dominicci lost neither hours of work nor wages as a result of the action of the Employer . I find no violation of Section 8(a)(3) or (1) in the Employer's actions. I shall recommend that the complaint insofar as it pertains to Mrs. Dominicci be dismissed. Sophie McAuley During the hearing the General Counsel amended the com- plaint to incorporate an allegation that the Respondent Union had coerced Sophie McAuley because of her testimony at the hearing. The record reveals that Miss McAuley was the employee who had originally informed the Charging Union that the Respondent Union was organizing at the Company's plant. She assisted the Charging Union thereafter in protest- ing the recognition of the Respondent Union by signing a petition and talking to other people about signing a petition sponsored by the Charging Union . After attending two meet- ings in August and September and refusing to sign a card for the Respondent Union she signed one in September after being told that she had to sign . At this point she signed a card under protest. Thereafter she was elected chief steward for the Respondent Union and was serving in that capacity at the time of the hearing. She testified that she did not want to be the steward. She also testified that at sometime after she became steward Respondent Union's Representative Gal- ladora told her that he did not think it was right for her to be talking to the Furniture Workers' representatives while she was the Respondent Union 's shop steward . She answered rather indelicately that if her job as steward was going to stand in the way of talking to people she had known for so many years they can "stick" their steward's job. This tes- timony was given on February 2, 1971 . On February 9, 1971, the General Counsel amended his complaint and Miss McAuley took the witness stand to testify that on February 8 at the plant she was called from her work by Representative Galladora just before the afternoon break and talked to him in private. Galladora told her that he had brought her resig- nations to sign which stated in effect that she was resigning as chief shop steward because she was not representing Local 20 RWDSU and ended with a statement that she voluntarily signed. She testified that Galladora was cool toward her and did not say much except that he wanted her to sign it. She asked if she could take the document with her. He declined to permit her to do so and told her that she was not represent- ing the Union. She answered that she understood that she was suppose to represent the people . She informed him that she already had resignation papers made out several months before but declined to sign . He said "all right" and walked away. The General Counsel contends that this amounts to coercion of employees . He cites no authority for this proposi- tion. I find no coercion of employees in this situation . I believe that Mrs. McAuley's testimony on the witness stand revealed clearly that she was at all times opposed to the Respondent Union and favored the Charging Union and her testimony on the witness stand which was frequently incredible and largely self-contradictory was more nearly that of an advocate on behalf of the Charging Union than that of a neutral witness. Under these circumstances I believe it is readily understanda- ble that the Respondent Union would ask her to sign a resig- nation. I find nothing coercive in the manner in which she was asked to sign nor do I find any occasion for an allegation that other employees were coerced thereby in view of the privacy of the occasion and the fact that no one with the possible exception of Miss McAuley made any other em- ployee aware of what had happened. I shall recommend that the complaint be dismissed with regard to this allegation. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Playskool occurring in con- nection with its operations have a close , intimate and substan- tial relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. THE REMEDY Having found that Respondent Playskool unlawfully as- sisted the Respondent Union by obtaining employee signa- tures to union membership and dues checkoff authorizations by which employees were required to join the Union and pay dues sooner than they would have been lawfully required to do, I shall recommend that they be required to cease and desist therefrom . I find no evidence that the Respondent Union knew of Playskool's action in this regard or in any way participated in Playskool's decision to do this which was allegedly arrived at as a matter of convenience to Playskool's personnel department . Accordingly I find no violation on the part of Respondent Union. I shall also recommend that any membership or dues checkoff authorizations unlawfully obtained from employees prior to the 30-day statutory period are not to be honored in the future. If any deductions were made pursuant to dues checkoff authorizations unlawfully obtained from employees prior to the 30-day statutory period, I shall recommend that Playskool reimburse to the employees from which such dues were deducted all dues deducted for that first month. Under the circumstance that the union -security contract is lawful on its face and it appears therefore that the employees could lawfully have been required to join the Union and pay dues after the first 30 days, I shall not recommend that Respond- ent Playskool reimburse the employees for such dues and initiation fees if such were collected . If there are any em- ployees who paid dues or initiation fees that worked less than 30 days Respondent Playskool shall reimburse such em- ployees for the dues or initiation fees so deducted. CONCLUSIONS OF LAW 1. Playskool is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By its practice of informing prospective or newly hired employees of the requirement that they must join the Union' immediately and by furnishing new employees with union cards and deducting from employees' pay union dues and initiation fees during that first 30 days of employment and forwarding said deductions to the Union, thereby assisting the Union, Playskool has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 4. By engaging in a practice whereby prospective or newly hired employees are required to execute union membership or dues checkoff authorization cards prior to the expiration of the statutory 30-day period Playskool has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the Act. 5. Respondents have not engaged in further unfair labor practices alleged. [Recommended Order omitted from publication.] 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A Agnes Matuszak Dorothy Soukup Cecilia Monroe Evelyn Stachnik James Bates Josie Heard Jose Morales Beverly- Starzynski Giovannina Bellio Inger Hultgren Jose Pavan Ethel Taylor Martha Bieschka Katheryn Johanson Perfecto Rivera Rose Tinghino Kenneth Boecker Patricia Johanson Houston Rogers Carlos Trevino Andrea Bonilla Maria Kovaks Dorothy Romanelh Castera Vargas Regina Catalanotte Lillie Kubica Irma Schultz Friedrich Weber Eugene Dutcher Rosemary Lind Norah Simpson Mary Wilszak Maria Gorski Felix Lopez Ethel Sobotka Edward Zywicki Katherine Hays Esther Martinez