Fort Smith Outerwear, Inc.

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fort Smith Outerwear, Inc., and H. L. Friedlen Com- pany and Southwest Regional Joint Board , Amalga- mated Clothing Workers of America, AFL-CIO. Case 26-CA-4300 and 26-RC--4131 August 17, 1973 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On March 12, 1973, Administrative Law Judge Melvin Pollack issued the attached Decision in this proceeding. Thereafter, the Respondents filed excep- tions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, the Re- spondents filed an answering brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administra- tive Law Judge and to adopt his recommended Order only to the extent consistent herewith. 1. The Administrative Law Judge found that the transfer of Betty Hardin to a pocket setter's job was not discriminatorily motivated and therefore was not violative of Section 8(a)(3) and (1) of the Act. We disagree. As found by the Administrative Law Judge, Hardin began working at the Respondent's Fort Smith plant in September 1970 and continued her employment until April 4, 1972. For about a year before her trans- fer to a pocket setter's job, a job which she had never previously performed, Hardin worked as a bundle girl, a nonincentive job, at which she earned $1.75 per hour. She signed a union card on December 2, 1971, and on December 10, 1971, she gave a fellow employ- ee a union card. In January 1972, Mildred Gentine, one of two act- ing plant managers, approached Hardin in the plant and said "I guess you know this union won't do you no good." In the same conversation Gentine re- marked that Hardin was making $1.75 an hour and could be making $1.60 an hour as did "the girls that 1 The Respondents have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings are sewing." While Gentine was talking to Hardin, Joseph Cohen, the executive vice president of Re- spondent H. L. Friedlen Company and secretary of Respondent Fort Smith Outerwear, approached them and told Hardin that he supposed she knew the Union would not do her any good. He also said he did not know if she was for or against the Union. After this conversation, sometime that same month, Hardin was told by Gentine that she was being trans- ferred from the job of bundle girl to the job of setting pockets. Gentine first testified that Hardin had had 3 years' sewing experience and that she transferred Hardin to the sewing operation because the plant needed a pocket setter at that time. She next stated that Hardin was not a good bundle girl. Gentine told Hardin she could make more money on the pocket setting job and that she would be paid her current pay of $1.75 an hour for 2 weeks until she learned her new work. Hardin said she was willing to try to do it. However, she was not able to make more than the base rate of $1.60 for setting pockets. A month after her transfer Hardin was laid off due to an alleged lack of work. On these facts, the Administrative Law Judge con- cluded that Gentine's statement to Hardin before her transfer to the effect that the Union would do her no good and she could be making $1.60 as a sewer rather than $1.75 as a bundle girl constituted a threat of economic reprisal violative of Section 8(a)(1). He fur- ther found that Cohen's statement concerning the Union and his remark that he did not know whether Hardin was for or against the Union called for an expression of union sentiment and was also violative of Section 8(a)(1). In addition, he concluded that the remarks of Cohen and Gentine prior to Hardin's transfer "indicated that they knew or suspected that Hardin was a union supporter." The Administrative Law Judge, however, rejected the General Counsel's contention that the subsequent transfer of Hardin from the job of bundle girl to pocket setter was effect- ed for the purpose of discouraging Hardin from sup- porting the Union and thus was violative of Section 8(a)(3) and (1) of the Act. Contrary to Respondents' contention that Hardin was a poor performer in the bundle girl job, the Ad- ministrative Law Judge found that Hardin "credibly testified that in the year that she worked as a bundle girl her supervisors never criticized her work and that Gentine more than once complimented her on her work." It is, of course, simply implausible that an employer would want to reward an unsatisfactory em- ployee by placing her in work which could conceiv- ably earn her more money. Furthermore, Gentine's remark that Hardin could be working at a sewing job at a lower rate of pay 205 NLRB No. 74 FORT SMITH OUTERWEAR, INC. demonstrated that Respondents regarded any incen- tive type sewing job to be less desirable than Hardin's nonincentive job. And, inasmuch as Gentine con- veyed her threat to give Hardin less desirable work at the same time, and in the same conversation that Co- hen sought to elicit Hardin's union sentiments, it is clear that it was Respondents' intention to penalize Hardin because of its knowledge or suspicion that she was a union supporter. The transfer itself was a mere carrying out of this intent. The Administrative Law Judge appeared to attach special significance to the fact that Hardin was willing to try the pocket settingjob; she worked without loss of pay for a 2-week learning period; she never asked for a reassignment to bundle girl; and Gentine testi- fied that she needed a pocket setter at the time of the transfer and Hardin was the only available girl with sewing experience. However, it is clear that Hardin was not given the option of accepting or rejecting the job. She was told she was being transferred. It was only after Gentine told Hardin that Hardin was being transferred that Hardin commented that she would "try" the job. Having never set pockets, Hardin was unaware of the difficulties of the job as well as the requirements for making production. The fact that Hardin did not voice a protest does not negate that the transfer was effected for the primary purpose of discouraging union activity. The Administrative Law Judge found elsewhere in his Decision that Cohen threatened that union supporters who did not make their quotas would be discharged if the Union lost the election. Viewed in the light of this threat and Re- spondents' numerous other violative acts, it becomes clear that Respondents' transfer of Hardin was grounded on antiunion considerations. Finally, although Respondents claimed that they needed an additional pocket setter at the time of Hardin's transfer, they kept Hardin in the pocket setter's job for only I month before laying her off, allegedly for lack of work. On the basis of the above, we are convinced that the transfer was an effectuation of Respondents' threat of economic reprisal against Hardin, and as such was a clear sign to other employees that the numerous threats of economic reprisal made by Respondent, as found by the Administrative Law Judge, were not to be taken lightly. Accordingly, we find that this trans- fer tended to and did discourage membership in the Union in violation of Section 8(a)(1) and (3) of the Act, and shall order that Respondents offer Betty Hardin the position she previously held and the work to which she was assigned on the same basis as existed prior to the Respondents' discrimination against her as found herein, and shall make her whole for any loss she may have suffered as a result of such discrimina- 593 tion. Interest on any monetary benefit lost as a result of Respondents' discrimination against Hardin shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 2. We agree with the Administrative Law Judge that the Union represented an uncoerced majority of the employees in the unit found appropriate when it demanded recognition on December 13, 1971. Con- trary to our dissenting colleague, we do not find that the "no obligation" statements of union solicitors to some employees before their signing of union applica- tion and authorization cards constituted substantial misrepresentations as to the purpose of the cards. If any ambiguities were created by these statements they did not relate to the primary purpose of the cards; i.e., whether the employees wanted the Union to represent them.2 The ambiguities, if any, only relate to joining the Union as opposed to authorizing the Union to represent them. Even in this regard surely our dissent- ing colleague would not find that these employees just because they signed applications for membership were thereby irrevocably obligated to pay union dues and initiation fees whether or not the Union went on to secure a majority thereafter? However, for the follow- ing reasons, we conclude that the cards of employees Linda Moore, Colleen Buzzard, and Ruth Riddle are invalid. The card of Linda Moore was signed on December 2 See Wallace Metal Products, Inc, 199 NLRB No. 127, wherein there was a specific exception and our dissenting colleague joined us in affirming the Administrative Law Judge's upholding of the validity of an authorization card signed by an employee who was told that "the card did not obligate him" on the ground that "the employee by signing the card was not obligated to join the Union , he was not obligated to pay union dues or anything else; he was not obligated to attend union meetings , he was not obligated to assist the Union . . " Our colleague distinguishes this case on the ground that Wallace involved an authorization card as opposed to the application and authorization cards that we have in the instant case We regard this as a distinction without a difference as the central question before us in determin- ing the validity of a card is whether the card can be regarded as an unambigu- ous expression of intent to designate the union as a bargaining agent Moreover, in Silver Fleet, Inc d/b/a Silver Fleet Motor Express, 174 NLRB 873, the Board plurality found that a punted "no obligation" disclaimer did not by itself invalidate the union cards Finally, Eckerd's Market, Inc, 183 NLRB No 40, is distinguishable as there the statement made to the employ- ees was that they "were only expressing an interest in learning more about the Union and were incurring no membership , or any other obligation to the Union " (Emphasis supplied) 3 International Brotherhood of Operative Potters, AFL-CIO (Macomb Pot- tery Company) 171 NLRB 565, relied on by our colleague, is inapposite as the Board found that the employees who had signed union application cards before the execution date of the contract were obligated to retain their union membership for the contract 's duration only because (1) the employees had signed the cards after the union's certification, i e , after it had been de- termined that the union did represent a majority of the employees, (2) in agreeing to the relevant maintenance-of-membership aspect of the union- security clause the union and the employer had agreed that all employees who had signed application cards had become members , and (3) by their conduct the employees themselves contemplated the existence of a member- ship relationship, since they availed themselves of the right to attend union meetings, voted to ratify the contract , and except for one employee there was no evidence that any employee expressed a desire to withdraw even after the contract including the union-security clause was explained to the employees at the union meeting 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3, 1970. The Administrative Law Judge concluded that this card was misdated and was received by the Union during the organizational campaign that began on November 30, 1971. It is well settled that the bur- den of proof is on the General Counsel to establish when a card is signed. The General Counsel did not call as a witness Linda Moore or anyone who ob- served her sign the card. There is thus no evidence to establish that the card was actually signed on a date other than December 3, 1970, and thus during the same organizational campaign which led to the re- quest for recognition. In these circumstances, we con- clude that the General Counsel has not met his burden of proof. As to Colleen Buzzard's card, the Adminstrative Law Judge concluded that, although Buzzard signed a card after she heard Beulah Threadgill say that "the only purpose was to bring about an election if she would get enough employees to sign the card," Threadgill did not solicit Buzzard to sign a card. The record shows that someone put some cards on a table where Buzzard was sitting and only Threadgill stated the cards' purpose to Buzzard. Buzzard testified that she signed the card because of what Threadgill told her. On the basis of the foregoing, we conclude that Threadgill did solicit Buzzard to sign the card on the basis of Threadgill's aforesaid misrepresentation. In regard to Ruth Riddle's card, Riddle testified that she read and signed a card after Hester Khilling told her the card "was only to see if enough people would sign to get an election" and to see how many people wanted a union. Riddle also stated that she signed the card on the basis of Khilling's assertion that the card was "only" for an election. We find this card invalid. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondents, Fort Smith Outerwear, Inc., Fort Smith, Arkansas, and H. L. Friedlen Company, Chicago, Illinois, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as modified below. 1. Insert the following as paragraph 1(c) of the Ad- ministrative Law Judge's recommended Order and renumber the subsequent paragraphs accordingly: "(c) Discouraging membership in the Union or in any other labor organization by discriminating against employees in regard to their hire or tenure of employment or any term or condition of employ- ment." 2. Insert the following as paragraph 2(b) of the Administrative Law Judge's recommended Order and renumber the subsequent paragraphs accordingly: "(b) Offer to Betty Hardin the position she previ- ously held as bundle girl and the work to which she was assigned on the same basis as existed prior to Respondents' discrimination against her and make her whole for any loss she may have suffered as a result of such discrimination as prescribed elsewhere in this Decision." 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. IT IS FURTHER ORDERED that the petition in Case 26- RC-4131 be dismissed and all proceedings therewith be vacated. MEMBER KENNEDY, concurring in part and dissenting in part: I agree with the majority in adopting the Adminis- trative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act. I would also affirm his dismissal of the Section 8(a)(3) allegation concerning the transfer of Betty Hardin. I am in agreement with the Administrative Law Judge's finding that the evi- dence does not establish that Hardin's transfer was discriminatorily motivated. My colleagues have concluded that the Union rep- resented a majority of Respondent's employees based upon 56 union authorization cards.4 There were 106 employees in the unit on December 13, 1971, when the request for bargaining was received by the Respon- dent. Accordingly the Union needed 54 valid designa- tions from employees on that date in order to establish its majority status. Under my colleagues' view, the Union possessed two cards more than a majority. I disagree. Union solicitors told at least 10 employees prior to their signing application-for-union-membership cards that the signing of the cards did not obligate them to the Union. My colleagues have counted these 10 cards to establish the Union's majority status.' In my view, the statements of the union solicitors to the employees were substantial misrepresentations and these cards should be rejected as invalid under the Supreme Court's Gissel Packing Co. decision.' In Gissel, the Supreme Court stated: G The Administrative Law Judge had concluded that 59 cards were valid, but my colleagues have found that 3 of these cards were invalid- I because of an apparent staleness and 2 because of misrepresentation made to employ- ees by union solicitors as to the purpose of the cards I agree with my colleagues in rejecting these cards 5 The 10 cards bear the names of Dixie Russell Turner, Rebecca Riddle, Connie Blackwood Bruce, Bobbie Driscoll, Willard Real, Mildred Heavener, Imogene Steed, Juanita Anderson, Mary Sherman, and Reba Parks 6 N L R B v Gissel Packing Co, 395 U S 575 FORT SMITH OUTERWEAR, INC. ... we think it sufficient to point out that em- ployees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and for- get the language above his signature. [Emphasis supplied.] The cards which the 10 employees signed read as follows: APPLICATION FOR MEMBERSHIP in the Amalgamated Clothing Workers of America, AFL-CIO I, the undersigned, hereby apply for membership in the Amalgamated Clothing Workers of Ameri- ca, and do hereby appoint and authorize the offi- cers thereof, to represent and negotiate for me in all matters pertaining to wages, hours and other conditions of employment. When the employees signed these membership ap- plications and returned them to the persons who were soliciting such applications on behalf of the Union, the employees obligated themselves to become mem- bers of the Union and to pay dues and initiation fees upon their acceptance by the Union. In the Macomb Pottery case I the Board found that employees who had signed application-for-union-membership cards had become members of the union prior to the date of the execution of the contract between the employer and the union, and, therefore, these employees were "obligated to retain membership in the Respondent [union] for the duration of the contract under the union-security clause. . . . " That case involved an 8(b)(1)(A) allegation based on statements made by the local union's president to two employees who had previously signed application-for-membership cards.8 The Board said: Contrary to the Trial Examiner, it is abundantly clear on this record that, for purposes of the union-security clause, both Bollinger and Ritten- house were members of the Respondent Union prior to June 13, 1967, the execution date of the 7 International Brotherhood of Operative Potters, AFL-CIO (Macomb Pot- terr Company), 171 NLRB 565 The Trial Examiner found that "All of the cards involved were dual- purpose cards-application for membership and authorization for represen- tation." (568, In 4.) 595 contract. There is no question but that they had signed application for membership cards in 1965, shortly after the Respondent was certified by the Board. The Trial Examiner also found that in agreeing to the relevant maintenance-of-mem- bership aspect of the union-security clause the Respondent and the Employer intended and considered that all employees who had signed application for membership cards had become members. Because these two employees executed membership application cards and became members of the union, the Board found that they were obligated to retain their union membership. Therefore, the Board found that there was no violation of Section 8(b)(1)(A) when the union president told them of the consequences which could follow if they became delinquent in their dues. The Wallace Metal Products, Inc., case,9 relied upon by the majority, did not involve application-for-mem- bership cards. The cards used in Wallace Metal Prod- ucts were authorization cards.1° The difference in the wording of the two cards is crucial, in my opinion. The Board dismissed the 8(a)(5) complaint in Wal- lace Metal Products because the union did not have a majority of valid cards. However, the Administrative Law Judge in that case did find that one of the author- ization cards was valid even though a union solicitor may have told an employee that the card did not obligate him." The Administrative Law Judge rea- soned that signing the card did not obligate the em- ployee to join the union, to pay dues, etc., but he only had before him an authorization card-not an appli- cation-for-union membership card. Thus, the ration- ale in Wallace Metal Products does not pertain to an employee's obligations when he signs an application to join a union. Since the employees did obligate themselves when they signed the application-for-membership cards, it was a clear misrepresentation for the union solicitors to tell employees that the signing of the cards did not obligate them to the Union." In effect, the employees 9 199 NLRB No 127 10 The cards in Wallace Metal Products read Upholsterers' International Union of North America AFL-CIO I do hereby designate and authorize the Upholsterers' Union of North America, AFL-CIO, and its representatives to act as my representative for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment Signed Name Date 11 The Administrative Law Judge's findings appear at ALJD, sec II, under the heading "The signed authorization cards ," and concern the authorization card signed by Randy Goodson 12 In Eckerd's Market, Inc, 183 NLRB 337, the Board found that the union 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were told "to disregard and forget the language above his signature."I' Because I would not accept these 10 application cards as being valid designations in view of the misre- presentations which I consider to come within the Supreme Court's Gissel decision, I would find that the Union did not represent a majority of the employees and would dismiss the 8 (a)(5) allegation of the com- plaint. Instead, on the basis of the Union's objections, I would set aside the election conducted in Case 26- RC-4131 on March 1 , 1972, and direct that a second election be held. there did not represent a majority of the employees and rejected cards signed by employees who were told by solicitors that they were only expressing an interest in learning more about the union and were not obligating themselves to become members of the union See also Silver Fleet, Inc d/b/a/ Silver Fleet Motor Express, 174 NLRB 873, where the Board found union cards to be invalid where ( 1) oral assurances were given to employees that the cards were to be used for an election, and (2) the card contained the wording, "This does not obligate me in any way " u Gissel Packing Co, supra CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL, upon request, recognize and bargain with Southwest Regional Joint Board, Amalga- mated Clothing Workers of America, AFL-CIO, as the collective-bargaining agent of the employ- ees in the following appropriate unit: All production and maintenance employees, plant clerical employees, and leadmen at our plant at Fort Smith, Arkansas, excluding all office clerical employees, guards, and supervi- sors as defined in the Act. WE WILL offer to Betty Hardin the position she previously held and the work to which she was assigned prior to her discriminatory transfer. All our employees are free to become or remain or refrain from becoming or remaining members of the above-named or any other labor organization. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our em- ployees concerning their union membership, ac- tivities, and desires. WE WILL NOT threaten our employees that their selection of Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, or any other union, would lead to loss of customers, denial of wage increases, stricter enforcement of production quotas, and the clos- ing of the plant. WE WILL NOT discourage membership in South- west Regional Joint Board , Amalgamated Cloth- ing Workers of America , AFL-CIO, or any other union, by discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT refuse to bargain collectively with Southwest Regional Joint Board, Amalgamated Clothing Workers of America , AFL-CIO. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, tojoin or assist Southwest Regional Joint Board, Amal- gamated Clothing Workers of America, AFL- FORT SMITH OUTERWEAR, INC H. L. FRIEDLEN COMPANY (Employers) 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 compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennes- see 38103, Telephone 901-534-3161. DECISION STATEMENT OF THE CASE MELVIN POLLACK, Adminstrative Law Judge: In this con- solidated proceeding under Sections 9(c) and 10(b) of the National Labor Relations Act, as amended (herein called the Act), the issues to be decided are whether Respondents violated Section 8(a)(1), (3), and (5) of the Act, and whether the objections filed by the Union to the results of an election FORT SMITH OUTERWEAR, INC. held on March 1, 1972, should be sustained and the election set aside.1 These consolidated cases were heard at Fort Smith, Ar- kansas, on November 14-17, 1972. Briefs have been re- ceived from all parties and have been carefully considered. Upon the entire record in the case,2 and my observation of the witnesses as they testified, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENTS Respondent Fort Smith Outerwear, Inc., a wholly owned subsidiary of Respondent H. L. Friedlen Company, is en- gaged in the manufacture of wearing apparel at its plant at Fort Smith, Arkansas. Its annual interstate sales and pur- chases each exceed $50,000. I find that Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED Southwest Regional Joint Board , Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The 8(a)(1) and (3) Violations 1. Background The Union began its campaign to organize the employees at the Fort Smith plant on November 30, 1971. On Decem- ber 10, it filed a petition for an election with the Board, and that same day it sent a letter to the Fort Smith plant de- manding recognition as the collective-bargaining represen- tative of the production and maintenance employees.' An election was held on March 1, 1972, which the Union lost. The Union filed timely objections to the election on March 10. 2. Interrogation and threats About December 4, 1971, Acting Plant Manager Mildred Gentine 4 asked shipping clerk Paul Handley if he had i Pursuant to charges filed on March 27 and May I, 1972, in Case 26- CA-4300, and a Supplemental Decision and Order issued in Case 26- RC-4131 on April 26, 1972, the Regional Director issued an order consoli- dating cases, complaint , and notice of hearing on May 5, 1972, and an order consolidating cases, amended complaint , and notice of hearing on September 6, 1972 2 Respondents' motion to correct the transcript of testimony is granted as to par I and denied as to pars 2-11 But see fn . 12, infra Nellie Corbin, at that time the general manager at the Fort Smith plant, received a certified letter from the Union on December 13, 1971 Joseph Cannavo testified that the return receipt signed by Corbin was attached to a copy of a letter in the Union's files dated December 10, 1971, requesting recognition and contract negotiations on the basis of a card check The Union's petition for an election which was filed with the Board on December 13-states that a request for recognition was made on December 10 In these circumstances , I find that the letter from the Union received by Respondents on December 13 was the original of the December 10 letter in the Union's files. 597 heard about the Union and if he had signed a union card. Handley said he had signed a card. Gentine said, "We know you have" and added, "We didn't think you would do such, as you're well thought of with the company." On December 8, Nathan Rothlein, vice president in charge of production, asked Handley how he felt about the Union. Two days later, Joseph Cohen, an officer of the Respon- dents, asked Handley why he should have "outsiders" do his talking for him. About December 8, Gentine asked Carol Wiltshire if she had signed a union card. Wiltshire said, "No" and Gentine remarked, "Well, it wouldn't help things if you did." Early in January 1972, Gentine came over to the machine which Doris Gibbons was operating and said that she had not talked to Gibbons about the Union, that she did not think a union "would do us any good," and that she would like to keep her job and be able to come into work every morning. About January 24, 1972, Cohen had a conversation with employees Cora Jones, Lorraine Lindsey, and Roberta Po- sey. Lindsey and Jones asked Cohen about the rates on their jobs. Cohen said he could do nothing about raising rates "until after the election, and the Union deal is settled." He asked the three women if they knew what was going on in Paintsville. Posey wanted to know where Paintsville was because she had never heard of it before. Cohen explained that Paintsville was one of his plants that had voted a union in and was temporarily closed.' He added that the Union would not help if brought into the plant and asked the employees if they "wanted to see the doors closed." He questioned whether the employees would want the Union if they knew what they were about to "confront." Lindsey said she would rather not be confronted with the Union because it had failed. A few days later Cohen showed the employees a newspaper article reporting a statement by Cohen that the Paintsville plant was not being closed down and that the Company was bargaining with the Union. About a week before the March 1 election, Cohen sat down beside Julie Sallee at her machine and asked her if she knew what the Union could and could not do for her. He said she "was taking a chance with the Union." Sallee re- plied she was "willing to take that chance." She asked him if the employees at Paintsville were working. Cohen said they were not working because Sears found out they had gone union and would strike and it "would have to send their coats elsewhere to get them done." Cohen added that he "had letters from girls at Paintsville, begging the girls at Fort Smith not to go union." Sallee also credibly testified that Mildred Gentine several times in the preelection period told her that Cohen would not stand for a union and if the plant "went union, then we probably wouldn't have a place to work." Sometime before the election, Harold Khilling, a bundle boy, asked Cohen for a raise. Cohen replied that he would like to give Khilling a raise but that his hands were tied because of the Union. He added that if the Union came in it would have a "set rate" and he would have no say about ° Gentine was acting plant manager at all relevant times. 5 Cohen is president of Paintsville Outerwear located in Paintsville, Ken- tucky. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD raises. On or about February 2, 1972, Eugene Riddle asked Co- hen for a raise. Cohen said he could not give Riddle a raise "right now" but that Riddle could help him. Riddle said, "I've got a mind of my own," and again asked for a raise. Cohen replied, "No, the Union deal is in," and that if he gave Riddle a raise it might be viewed as a bribe. He re- marked that Riddle's sisters worked at the plant and Riddle could help him. Riddle again said "No" and Cohen said, "You can always change your mind." He suggested that Riddle could be trained to be a cutter or to run the machines and said, "Now, you can help me if you want to." Riddle answered, "No, sir, I've got a mind of my own." On February 25, 1972, Cohen told Rebecca Riddle that she did not have to follow her brother and sister, that she was young and attractive and could get a job elsewhere, that he was sure the Union would not get in, and that the em- ployees who supported the Union would be fired "if they don't get their quota." I find that Respondent violated Section 8(a)(1) by Gentine's statement to Gibbons that she did not think the Union would do any good and she would like to be able to keep her job; by Cohen's asking Jones, Posey, and Lindsey if they wanted to see the doors closed and if they would want the Union if they knew what they were about to "con- front"; by Cohen's statement to Sallee that the Paintsville employees were not working because they had "gone union" and caused Sears to take its coats elsewhere; by Gentine's statements to Sallee that Cohen would probably close the Fort Smith plant if the Union came in; and by Cohen's statement to Rebecca Riddle that union supporters would be fired after the election if they failed to make their quotas. In the context of the foregoing threats of economic repri- sal, I find that Respondent further violated Section 8(a)(1) by the conduct of Cohen, Gentine, and Rothlein in ques- tioning employees about their signing of union cards and their union sympathies. I find that Respondent also violated Section 8(a)(1) of the Act by Cohen's telling Harold Khilhng that he could not have a raise because his hands were tied by the Union and that he could not give raises if the Union came in because the Union would have a "set rate"; and by Cohen's refusal to give Eugene Riddle a raise because "the Union deal is in." Cohen's statements in effect made raises contingent upon the defeat of the Union in the coming election. 3. Wages increases In January 1972, Terry Beam complained about the heat to Leadgirl Lynn Kelley. A few minutes later Cohen came over and asked Beam why she had not complained about the heat before . Beam said she had complained to Kelley. Cohen said, "Well don't complain to Lynn. Complain to somebody that can do something about it." Beam then said she was not getting paid enough on her flaps ,6 that "a dollar per hundred wasn't enough." Cohen said he would look into it. About January 20, Cohen told Beam that there had been 6 Beam puts buttonholes into pieces of cloth a mistake when they changedjackets and she would be paid $1.40 per hundred and would get backpay. In April, Cohen gave Beam a "backpay" check for $112.38, saying it was for backpay to a certain date and that the payroll girl would go back further when she had time.7 Cohen testified that Beam worked on different types of flaps, paying either $1 or $1.40 per hundred, and that inves- tigation showed that Beam was mistakenly receiving the lower rate on the flaps she complained about in January. In January 1972, Zelma Wilburn's rate for turning and inspecting a corduroy (safari) jacket was increased from $5 to $5.25 a hundred. Cohen testified that the manufacture of this type of jacket had been discontinued in late January 1971 but that the rate for turning and inspecting similar jackets was increased to $5.25 in February 1971. According- ly, when the manufacture of the corduroy jacket was re- sumed in January 1972, Cohen reset the "price" to $5.25.1 Early in January 1972, Alice Bolton completed the job of attaching labels to a certain kind of jacket. She had been paid 80 cents a hundred for this operation. About January 20, Acting Plant Mangaer Gentine told her that the rate on the operation had been raised to $1.15 a hundred. Bolton asked Gentine what good the raise would be to her as she had finished thejackets. Gentine "just laughed." Some time later Gentine told Bolton that the Company had stopped putting labels on jackets. In early February 1972, Arlene Eppler and Willie Bailey complained to Cohen that their collar-setting work on a new coat called for a higher rate than another coat they had been working on. After talking to Acting Plant Manager Gentine and Vice President Rothlein, Cohen changed the rate from $5.35 to $5.75. Cohen explained that the new coat required setting of a curved rather than a straight collar, and that the higher rate for the more difficult operation of setting a curved collar yielded "exactly the same pay" as seeting straight collars. Cohen conceded that his presence at the Fort Smith plant was in part due to the Union's filing of a representation petition. As shown above, Cohen engaged in unlawful con- duct before the election, including threats of economic re- prisals if the Union won the election. His remark to Terry Beam that she should address her complaints "to somebody that can do something about it" encouraged her to question the rate she was getting on one of her operations. A few days later, Cohen increased the rate on this operation from $1 to $1.40 and told her she would get "backpay." Cohen also gave an unsolicited rate increase to Zelda Wilburn and, upon the complaints of Arlene Eppler and Willie Bailey, raised the rate on an operation they were performing. About this time, Acting Plant Manager Gentine advised Alice Bol- ton that the rate on a job she had completed would be thereafter paid at a higher rate. The foregoing sequence of events, without more, would warrant an inference that Respondents effected the rate increases as part of an antiunion campaign. It appears, how- ever, that rate adjustments are not unusual, that the com- plaints of Beam, Eppler, and Bailey were justified, that Wilburn was not being properly paid, and that all the in- 7 Beam received no further "backpay" checks 8 Cohen testified that rate adjustments are normally effected when a pro- duction item begins "a new season " FORT SMITH OUTERWEAR, INC. 599 creases were effected without any remarks linking them to the election campaign. I find under all the circumstances that Respondents' granting of rate increases was not viola- tive of the Act. 4. The transfer of Hardin Betty Hardin, a bundle girl, signed a union card on De- cember 2, 1971. On December 10, Kathleen Nichols asked Hardin for a card, saying that some of the girls had said "she was a snitch about the Union and she wanted to show them she wasn't." Hardin gave Nichols a card, which Nichols read and signed. In January 1972, Gentine walked over to Hardin and said, "I guess you know this union won't do you no good." Hardin did not answer and Gentine remarked that Hardin was making $1.75 an hour but could be making $1.60 an hour as did "the girls that are sewing." Joseph Cohen walked up while Gentme was talking to Hardin. He said as had Gentine that the Union would do Hardin no good. He also said he did not know whether Hardin was for or against the Union. Hardin kept quiet. Hardin was subsequently transferred from her job as bundle girl to the job of setting pockets. Gentine told Har- din she could make more money on this job and that she would be paid her current pay of $1.75 an hour for 2 weeks until she learned her new work. Hardin, who had had 3 years' sewing experience, said she was willing to try to do it. Hardin was not able to make more than the base rate of $1.60 for setting pockets. Gentine testified that she needed a pocket setter at the time of the transfer and that Hardin was the only available girl with sewing experience. For this reason, and because Hardin was an "awfully slow" bundle girl, the decision was made to transfer her. Gentine's statements to Hardin before her transfer that the Union would do her no good and she could be making $1.60 as a sewer rather than $1.75 as a bundle girl constitut- ed a threat of economic reprisal violative of Section 8(a)(1). Cohen's similar statement about the Union and his remark that he did not know whether Hardin was for or against the Union clearly called for an expression of union sentiment by Hardin and hence was also violative of that section. The remarks of Cohen and Gentine to Hardin before her transfer indicate that they knew or suspected that Hardin was a union supporter. Hardin credibly testified that in the year she worked as a bundle girl her supervisors had never criticized her work, and that Gentine more than once com- plimented her on her work. Hardin, however, was willing to try the pocket-setting job. She worked without loss of pay for a 2-week learning period, and she never asked for a reassignment to bundle girl. Gentine testified without con- tradiction that she needed a pocket setter at the time of the transfer and that Hardin was the only available girl with sewing experience. On these facts, I find that the General Counsel has not established by a preponderance of the evidence that Hardin's transfer was discriminatorily motivated. B. The 8(a)(5) Violation 1. The demand for recognition; the appropriate unit I have found above that the Union by letter dated De- cember 10, 1971, requested Respondents to recognize it as the collective-bargaining representative of the production and maintenance employees at the Fort Smith plant, and that on December 13 the Union filed a representation peti- tion with the Board. The record shows that Respondents since December 13, 1971, have refused to recognize the Union as the collective-bargaining representative of their employees without a Board certification. The Regional Di- rector determined, and the parties agree, that the appropri- ate unit at the Fort Smith plant includes all production and maintenance employees, plant clericals, and leadmen. 2. The Union's majority status The General Counsel contends, and Respondents dis- pute, that the Union represented a majority of the unit employees on and after December 13, 1971, the day Re- spondents received the Union's demand for recognition. The unit on December 13 included 106 employees.' The General Counsel introduced into evidence 68 union author- ization cards, 61 of which, excluding a card for Miron Mad- er, were signed on or before December 10, 1971.10 The record establishes and Respondents in their brief do not dispute the validity of the cards signed on or before December 13, 1971, by the 23 employees listed below: Terry Beam Paul Handley Cora Jones Venita Combs Pearlie Elam Alice Bolton Eugene Riddle Harold Steed Dorothy Smith JoAnn Hawley Julie Sallee Zelma Wilburn Inez Holmes Doris Gibbons Carol Wiltshire Hester Khillmg Deborah Cook Betty Hardin Earlene Rogers Sandra Ridenour Joyce Cowan Linda Kirk Carolyn Wackerly Respondent challenges the cards signed by 38 employees before December 13, 1971. Dixie Russell Turner read and signed a card on December 2, 1971. She was told that the card "was a membership card for the Union, and it just showed that we were interested in 9 I have exluded Miron Mader and Bobby Beam from the unit Mader quit before December 13 and it appears that Beam, listed on Respondents' re- cords as a temporary employee, worked on call Respondents introduced no records to show the regularity of his employment While it appears that Beam was employed on a regular part-time basis during the taking of inventory in November and December 1971, the record does not establish that he other- wise worked on a regular part-time basis Paul Handley credibly testified that Beam was called only when Handley needed him 10 The cards are headed "Application for Membership in the Amalgamat- ed Clothing Workers of America, AFL-CIO," and read as follows I, the undersigned, hereby apply for membership in the Amalgamated Clothing Workers of America, and do hereby appoint and authorize the officers thereof, to represent and negotiate for me in all matters pertain- ing to wages, hours and other conditions of employment 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what the Union had to say and that we would be glad to be a member of it." She was also told in effect that signing the card did not obligate her to the Union. The card read and signed by Turner stated in clear and unambiguous language that the undersigned employee was applying for union membership and was authorizing the Union to act as his or her bargaining representative . Concerning similar cards, the Supreme Court said in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 606 (1969): "[E]mployees should be bound by the clear language of what they sign unless that language is deliberately and clearly cancelled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature ." Turner was told inter aka that the card was an application for union membership. A "no obligation" statement, absent special circumstances, does not invalidate a card, for, as pointed out in Wallace Metal Products, Inc., 199 NLRB No. 127: "The fact is the employee by signing the card was not obligated to join the Union ; he was not obligated to pay union dues or anything else; he was not obligated to vote for the Union if there was an election ; he was not obligated to attend union meetings; he was not obligated to assist the Union ...... I find Turner's card to be a valid authorization. Joyce Brawdy. Eugene Riddle testified that he gave Braw- dy a card on December 9, 1971, and that she returned it to him filled out and signed the next day. The card is dated Friday, December 10. While Respondent's records show that Riddle was not at work on December 9, I do not consid- er this discrepancy in his testimony sufficient to invalidate his testimony that Brawdy returned an executed card to him on Friday, December 10. The card is complete and regular on its face and Respondent makes no claim that the signa- ture thereon is different from that shown in its records. I shall count Brawdy's card. Cindy Fisher Whitlock. Inez Holmes testified that Whit- lock read and signed the card in her presence on December 2, 1971, that Hester Khillmg told Whitlock that the card was "to help get a raise," and Whitlock remarked to Holmes that the employees would probably be able to get a raise "if we did have a union" and "everybody would work together." I find no misrepresentation was made to Whitlock concern- ing the purpose of the card and shall count her card. Rebecca Riddle testified that she signed a card on Decem- ber 3 , 1971, after Hester Khilling told her the card was "for the Union," that "if we could get the Union in, it would help our wages," that signing a card did not commit her to the Union, and that she could vote any way she wanted. The "no obligation" statement did not invalidate the card, nor did the statement that Riddle could vote any way she want- ed. Wallace Metal Products, Inc., supra, N. L.R.B. v. WKRG- TV, Inc., 470 F.2d 1302 (C.A. 5, 1973). I shall count Riddle's card. Vivian Gibbs testified that on December 2, 1971, she first refused to sign a card and then signed a card without read- ing it after Hester Khilling told her she was under no obliga- tion if she signed the card , that she was not "signing up to become union," and that she should "go and listen at our first meeting to see what we have to offer ." Khilling's state- ment to Gibbs that she was not "signing up to become union" misstates the purpose of the card so as to invalidate the card. Robert Bailey signed a card dated December 2, 1971. Paul Handley credibly testified that Linda Kirk told Bailey that the card was a union card, that Bailey said , "Well, I used to belong to a union," and signed the card. Bailey testified that he looked at the card before signing and dating it, but that he could not read it and did not know it was a union card. He further testified , however, that he signed the card "because I thought we would be able to get a union and make more money." I find that Bailey knew he was signing a card for the Union, and I shall count his card. Harold Khilling signed a card at his home on November 30, 1971, after Union Representative Opal Stingley had talked "a long time" to him and his mother, Hester Khilling. He testified that Stingley told them "if we got . . . enough cards and enough signatures . . . we could have a vote .. . on the Union." She also said they could vote any way they wanted to vote . Stingley testified that she discussed union representation with the Khillings, showed them union cards, and told them a majority of the employees "would need to sign the membership cards" before the Union "would write the Company a letter and ask them to recognize us as their bargaining representative ." While I credit Stingley's testi- mony, I find that she also spoke to the Khillings about an election and their freedom of choice at the election. Such statements about the use of a card to obtain an election do not invalidate a card . N.L.R.B. v. WKRG-TV, supra . I shall count Harold Khilling's card. Sharon K. Lawson signed a card in Harold Khilling's presence on December 3, 1971. Respondents claim that the signatures on Lawson's card and on her W-4 form have no resemblance . Sharon K . Lawson was Sharon K . Hartt when she executed a W-4 form on July 9, 1970. I have carefully examined the card and the form and I am satisfied that the same person executed both documents. I shall count her card. Linda Christine Moore testified that she signed a card on December 3, 1971, after Harold Khilling told her the card "was to get a majority of votes so we could hold an elec- tion." I shall count her card as I find nothing in Khilling's remarks serving to negate the clear meaning of the card. Violet Baker read and signed a union card on December 6, 1971. Baker testified that Beatrice Threadgill asked her if she was interested in trying to improve working conditions. Baker said yes and Threadgill asked her to look at a union card. Threadgill told her "if there was enough people inter- ested in changing the . . . working conditions of the plant, that we would try, maybe, to get a union in," that signing the card was not a commitment to the Union , that it "didn't mean that we were starting the Union at all," and she could vote yes or no in the election. I consider Threadgill's state- ments considered in their entirety tantamount to a represen- tation that the card would be used only to get an election and I shall not count it. Connie Blackwood Bruce read and signed a card on De- cember 3 , 1971, after she was told that "they wanted a union" and that she could sign the card if she wanted to, but she was under no obligations . I shall count her card. Shirley Kidd read and signed a card on December 7, 1971, after Hester Khilling told her "it would bring better wages and better working conditions if we could get the Union in" and there would be a vote . I shall count Kidd's card. FORT SMITH OUTERWEAR, INC. Beverly Bonds read and signed a card on December 3, 1971. Hester Khilling said nothing to her about the card when she gave it to Bonds and Bonds asked her no ques- tions. I shall count Bonds' card. Virginia Morris signed a card on December 3, 1971, after Hester Khtlling told her if enough cards were signed "we would have the chance for an election in our plant for the Union." I shall count Morris' card. Shirley Walls read and signed a card on December 3, 1971, after Hester Khilling said there would be an election for the Union if enough people filled out the cards. Khtlling also said card signers would not have to pay an initiation fee if the Union won the election. I shall count Walls' card. Bobby Driscoll read and filled out a card on December 2, 1971, after Hester Khilling remarked that card signers would not be obligated to the Union and could change their minds and vote for or against the Union.' I shall count Driscoll's card. Willard Real returned a signed card to Hester Khilling on December 1, 1971. Khilling had told him he was not obligat- ed to the Union by signing a card and that he could change his mind about the Union and vote for or against it. I shall count his card. Lucille Riddle signed a card on December 3, 1971, after Hester Khilling told her "the Union was for the benefit of us people-that we would get better wages." I shall count her card. Beulah Threadgill returned a signed card to Hester Khill- ing, her sister, on December 2, 1971. I shall count her card. Mildred Heavener signed a card dated December 2, 1971, and returned it to Hester Khilling without comment. Khill- ing had told Heavener that she was not obligated to the Union by signing a card and that she could vote for or against the Union if she signed the card. I shall count Heavener's card. Kathleen Nichols. Betty Hardin credibly testified that Ni- chols asked her for a card, saying "she didn't want the girls to think that she was a snitch, that she wanted to join the Union." Hardin gave Nichols a card. Nichols read and signed the card, which is dated December 10, 1971. I shall count Nichols' card. Sharon Reese read and signed a card on December 3, 1971, after Linda Christine Moore told her the card was for the Union and that there would be a meeting if a "certain number of employees" signed cards. I shall count Reese's card. Ruth Riddle testified that she read and signed a card on December 2, 1971, after Hester Khilling told her the card "was only to see if enough people would sign to get an election" and to see how many people wanted a union. I shall count her card. Colleen Buzzard testified that she "briefly" read and signed a card on December 3, 1971, after she heard Beulah Threadgill say that "the only purpose was to bring about an election if she would get enough employees to sign the card." It does not appear that Threadgill solicited Buzzard to sign a card. I shall count Buzzard's card. 11 Hester Khilhng credibly testified that she said nothing about a meeting to Driscoll I therefore do not credit Driscoll's testimony that Khillmg told her the cards were only to get enough signatures to hold a meeting 601 Imogene Steed testified that she signed a card on Decem- ber 3, 1971, without reading it when Sharon Wilson 12 said "if enough people signed them, we could have an election" and that "there was no obligation." I shall count her card. Juanita Anderson signed a card at the same time and under the same circumstances as Imogene Steed. I shall count her card. Mary Sherman signed a card on December 4, 1971. She said she did not read the card, but she knew it was "to have an election for the Union." She was told that she was under no obligation to the Union by signing the card. I shall count her card. Reba Parks read and signed a card on December 2, 1971.13 She testified that Hester Khilling said that "the only purpose for our signing the cards was in order to get a meeting to learn more about the Union, that we would be able to vote on whether or not we wanted the Union." She also testified that Khtlling said she would not be "obligated" to the Union and that "if there was enough people interested in having a union, there would be an election." I do not credit Parks' testimony that Khilling said the only purpose of the card was to get a meeting to learn more about the Union. I shall count her card. Hazel Turner read and signed a card in her home on December 1, 1971. She told Union Representative Opal Stingley that she was "very familiar" with the Union. Turn- er testified that Stingley told her the card was "to petition for an election" and "to organize a union." I shall count her card. Willie Gregory returned to Opal Stingley a signed card dated December 7, 1971. I shall count her card. The cards of eight employees dated December 2 or 3, 1971, were received by the Union during its organizing cam- paign. I am satisfied from a comparison of the cards and the employees' W-4 forms that the cards are genuine and shall count them. The eight employees are: Louise Shanks Bonme Davidson Debra Finnegan Patty Kidd Jean Goines Connie Hall Martha Ann Choate Linda Moore14 I have found that 36 of the 38 challenged cards are valid. Twenty-three unchallenged cards are also valid. It thus ap- pears that the Union when it requested recognition on De- cember 13, 1971, had obtained valid authorization cards from 59 of the 106 employees in the appropriate unit. I have found above that Joseph Cohen, an officer of Respondents, and Mildred Gentine, an acting plant manager, engaged in coercive conduct which included threats to close down the plant if the Union won the election. Their conduct is such as to have a lingering effect and to make it unlikely that the use of traditional remedies will insure a fair rerun election. The unambiguous cards validly executed by a majority of 12 Respondent's payroll for December 13, 1971, includes Sharon Lawson, Sharon Reese, and Sharon Pettengill, but no Sharon Wilson In an affidavit given to Respondents on November 16, 1972, Steed identified the solicitor as Sharon Lawson. 13 Parks said she erroneously dated the card December 2, 1970. 14 Linda Moore's card is dated December 3, 1970. Her card was received by the Union during the organizing campaign which began on November 30, 1971. I find it was misdated. Cf Reba Parks' testimony about her card, supra, In 13 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in the bargaining unit therefore represent a more reliable measure of employee desire on the issue of representation in this case. I find, accordingly, that Respon- dent by refusing to recognize the Union on the basis of its authorization cards engaged in conduct violative of Section 8(a)(5) of the Act. IV THE OBJECTIONS TO THE ELECTION The Union's objections to the election are based upon the unlawful conduct detailed above which occurred after the filing of the representation petition and before the holding of the election. As this conduct interfered with a free and untrammeled choice in the election, I recommend that the election held on March 1 , 1972, be set aside In view of the bargaining order to be recommended in the unfair labor practice proceeding , I further recommend that the petition in Case 26-RC-4131 be dismissed. CONCLUSIONS OF LAW 1. Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act: All production and maintenance employees, plant cler- ical employees, and leadmen employed by Respon- dents at their plant at Fort Smith, Arkansas, excluding all office clerical employees, guards, and supervisors as defined in the Act. 4. At all times since December 13, 1971, the Union has been the duly designated bargaining representative of the employees in the aforesaid collective -bargaining unit. 5. By refusing on December 13, 1971, and thereafter to bargain with the Union as the exclusive representative of the employees in the appropriate unit, Respondents have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing conduct , and by interfering with, restraining, and coercing their employees in the exercise of their rights guaranteed by Section 7 of the Act, Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondents have not engaged in unfair labor practic- es other than as found herein. THE REMEDY Having found that Respondents have engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I find it necessary to order Respondents to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. A bargaining order is warranted under Gissel, I5 where, as 15 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969) here, an employer refuses recognition to a union which has obtained valid authorization cards from a majority of the employees in an appropriate bargaining unit, and thereafter by high-ranking personnel engaged in numerous and sub- stantial violations of the Act, including threats to go out of business if the employees select the Union as their collec- tive-bargaining representative. I shall therefore recommend that Respondents, upon request, bargain with the Union.16 Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER I7 Respondents, Fort Smith Outerwear, Inc., and H. L. Friedlen Company , Fort Smith , Arkansas, their officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Interrogating coercively employees concerning union membership, activities, and desires. (b) Threatening employees that their selection of the Union would lead to loss of customers , denial of wage in- creases, stricter enforcement of production quotas against union supporters, and the closing of the plant. (c) In any other manner , interfering with, restraining, or coercing their employees in the exercise of their right to self-organization , to join or assist Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL- CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. (d) Refusing to recognize or bargain collectively with the above-named labor organization as the exclusive bargaining representative of the employees in the appropriate unit set forth in the conclusions of law above. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Southwest Regional Joint Board, Amalgamated Clothing Workers of America, AFL-CIO, as the collective-bargaining represen- tative of all the employees in the appropriate unit set forth above, with respect to rates of pay, wages , hours of employ- ment, or other terms of employment and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at their plant at Fort Smith, Arkansas, copies of the attached notice marked "Appendix."18 Copies of said 16 Even in the absence of a refusal to bargain, I find a bargaining order would be appropriate in view of Respondents' substantial violations of Sec 8(a^(I) 1 In the event no exceptions are filed to this recommended Order as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objec- tions thereto shall be deemed waived for all purposes 18 In the event that the Board's 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of FORT SMITH OUTERWEAR, INC. notice, to be furnished by the Regional Director for Region 26, after being duly signed by Respondents' representatives, shall be posted by Respondents upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall the National Labor Relations Board " 603 be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. I further recommend that the complaint be dismissed as to any violations not found herein, and that the petition for certification of representative in Case 26-RC-4131 be dis- missed.