Felsa Knitting Mills, Inc.

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Felsa Knitting Mills, Inc. and Local 107, International Ladies' Garment Workers' Union, AFL-CIO. Case 29-CA-3380 January 18, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 26, 1973, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent , Felsa Knitting Mills, Inc., Farmingdale , New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. At the hearing, Respondent renewed its motion to require the production of witnesses' affidavits in advance of the hearing This motion was denied by the Administrative Law Judge, and his ruling is hereby affirmed See Sec 102 118(a) and (b)(1) of the Board's Rules and Regulations I While Chairman Miller agrees that a bargaining order is appropriate herein based on the theory expressed by the Supreme Court in N L R B v Gissel Packing Co, Inc, 395 U S 575, 610-615 (1969), he would, for reasons stated in his separate concurrence in United Packing Company of Iowa, Inc, 187 NLRB 132, predicate this remedy solely upon the serious violations of Sec 8(a)(1) and (3) committed by Respondent DECISION FRANK H. ITKIN, Administrative Law Judge. This case was tried before me at Brooklyn, New York, on August 13 and 14, 1973.1 The unfair labor practice charge was filed by the Union on May 3 and the complaint issued on July 9. The issues presented are whether Respondent Company, in violation of Section 8(a)(l) and (3) of the National Labor Relations Act, threatened employees with a reduction in hours and overtime work, elimination of a paid lunch period, and other reprisals if they became or remained I All dates are in 1973 unless otherwise stated members of the Union; interrogated employees concerning their membership in and support of the Union; offered and promised employees overtime and other benefits and improvements in working conditions in order to induce them to refrain from becoming or remaining members of the Union; transferred employee Ignacio Manrique to a less desirable work shift and provided Manrique with less employment than he previously had received; provided employee Ruben Belevan with less employment than he previously had received; issued written criticisms to employees Manrique and Belevan ; and granted employee Jorge Cartagena a paid vacation in order to discourage employee union protected activities . In addition, the complaint alleges that Respondent, in violation of Section 8(a)(5) and (1) of the Act, refused to recognize and bargain with the Union as the collective-bargaining agent designat- ed by a majority of the employees in an appropriate bargaining unit. Upon the entire record, including my observation of the witnesses, and after due consideration of the brief filed by counsel for General Counsel, I make the following: FINDINGS OF FACT i. JURISDICTION The complaint alleges, the answer admits, and I find and conclude that Respondent Company, a corporation of New York, has maintained at all times material its principal place of business in Farmingdale , New York, where it has been engaged in the contract knitting of yarn into fabric ; that during the past fiscal year Respondent manufactured, sold, and distributed products valued in excess of $50,000 which were shipped directly from Farmingdale to points outside of the State of New York; and that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is also undisputed and I find and conclude that the Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. It. THE UNFAIR LABOR PRACTICES A. Introduction Respondent Company, as stated, is engaged in the contract knitting of yarn at its Farmingdale facility. It is undisputed and I find and conclude that at all times material Felix Gorski has been president and agent of Respondent Company. Further, the complaint alleges, the answer admits, and I find and conclude that all production employees of Respondent employed at its Farmingdale plant, exclusive of office clerical employees, guards, professional employees and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act; that about April 13 the Union requested Respondent to recognize and bargain with it as the exclusive bargaining representative of Respondent's employees in the unit described above; and that Respon- dent refused and has continued to refuse to recognize and 208 NLRB No. 79 FELSA KNITTING MILLS, INC. bargain collectively with the Union as the exclusive collective-bargaining representative of Respondent's em- ployees in said unit. It is also undisputed and I find and conclude that on April 13, when the Union requested Respondent to recognize and bargain with it and Respondent refused, there were six employees in the bargaining unit. They were Ignacio Manrique, Ruben Belevan, Santos Matos, Jorge Cartagena, Ralph Alicea, and Bruce Kaire. B. A Majority of the Unit Employees Sign Union Authorization Cards,- the Union Seeks Recognition Employee Ignacio Mannque is presently employed as a knitter by Respondent Company. He commenced working for the Company in May 1972. Mannque credibly testified that about late March 1973 he discussed with his coworkers "the advantages of bringing the Union into the plant." Manrique then went to the Union and enlisted its organizational assistance. Manrique was furnished blank union authorization cards which were to be signed by the Company's employees. Manrique understood that the cards are "an invitation to the Union to be in Felsa Knitting Manrique read and signed a Union authorization card on April 1.2 Manrique credibly testified that employee Ruben Belevan also signed a union authorization card on the same day inside the plant "beside the machines."3 And, as Manrique further testi- fied, employee Bruce Kaire "read the card and he signed it" in the plant on April 11; employee Santos Matos "read it" and "signed [it] in front of Manrique in the plant" on April 12; and employee Jorge Cartagena "read the card" and "sign[ed] the card" "inside the plant" on April 12. Manrique returned the five signed union authorization cards to Union Business Agent John Di Girolamo. And, during the morning of April 13, Manrique and Di Girolamo visited Company President Felix Gorski at the plant in order "to make a demand" for recognition. Manrique introduced Di Girolamo to Gorski, whereupon Di Girolamo apprised Gorski that "he was representing a majority of the employees ...." Manrique recalled that Gorski said, "at the present time business was very slow and . . . he couldn't deal with the . . . Union ... . Mannque and Di Girolamo left. C. Management's Conduct Following the Union's Demand for Recognition Prior to April 13, employee Manrique generally worked from about 12 noon until 10 p.m. It was stipulated that Manrique's weekly hours of work from week ending October 21, 1972, until week ending April 14, 1973, were as follows: 2 The t,nion cards state in pertinent part: Authonzation Card I, of my own free will, hereby authorize the INTERNAFIONAI. LADIFS' GARMLNr WORKLRS' UNION, its affiliates and its representatives. to act exclusively as my agent and representative for the purpose of collective bargaining. Week ending Hours worked 10/21/72 56-3/4 10/28 57 11/4 54 ll/11 48 11/18 58-1/2 11/26 51 12/2 57-1/4 12/9 55 12/16 50 12/23 43 12/30 48 1/6/73 54 1/13 56 1/20 47-1/2 1/27 50 2/3 62-1/2 2/10 55 2/17 54 2/24 54 3/3 59 3/10 47 3/17 51-3/4 3/24 55-1/2 3/31 58 4/7 49 4/14 49 505 As Mannque explained, his "basic hours" prior to April 13 were from about 12 noon to 10 p.m. although on occasion he was asked to report for work about 1 or 2 p.m. Prior to April 13, Manrique was not asked to start work after 4 p.m. or work on the midnight shift. Manrique credibly testified that on Tuesday or Wednes- day, April 17 or 18, Gorski said to him: "From now on you have to work 35 hours a week. This is the Union hours. No overtime . . . . No Saturdays." Mannque was instructed to report for work at 4 p.m. and work until midnight. Manrique asked Gorski "why" Gorski was changing his "time" and Gorski replied: "This is the Union hours .." Mannque started work at 4 p.m. as instructed. On the first evening of his new shift, Mannque telephoned Gorski for "some instruction" concerning his work in the plant. During their conversation, Manrique stated to Gorski that "it was not legal to work by myself alone in the plant." Gorski replied: "Okay, starting tomorrow Mr. Ruben Belevan is going to work with you in the same shop. Tell Ruben to come in at the same time with you." Mannque notified Belevan that he too was to work from 4 p.m. on the same shift. Thereafter, employees Manrique and Belevan worked from about 4 p.m. to 12 midnight for approximately 2 weeks. Manrique recalled that while he was working the above shift with Belevan, Gorski told the two employees: "from now on you have to take one hour lunch. This is the Union S Mannque explained- Before giving to anybody the blanks [cards], I wrote the name and Felsa Knitting and the address And they complete it with their address because I didn't know the address of each one Employee Belevan, like Manrique, testified that he understood that the Union card "is like an invitation of the Union [to] represent me with my bass " 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order . . . . Just now I talk to the Union man and he showed me the form." Manrique did not want to take an hour for lunch since, at the time, he was being paid during his short lunch break and he believed that he would not be paid for a full I-hour lunch period. Manrique told Gorski that "one hour ... is too much for us." Gorski replied: "It's up to you, you want to have half an hour or one hour. You stop the machines and you have an hour lunch." Manrique and Belevan "agreed to have a half hour lunch ... keeping the machines running," as had been the prior practice in the plant. About May 7, some 2 weeks after Manrique and Belevan had started working 4 p.m. to 12 midnight, Gorski apprised the two employees: He [Gorski] said we [Manrique and Belevan ] have to stay to work from midnight to 8 o'clock in the morning, .. to stay late to 8 or 9 o'clock in the morning because I [Gorski] want to see you in the morning." Manrique complained to Gorski: "I don't work that way because it's too long for us to stay late in the morning." Belevan also complained to Gorski- "he would not stay to 9 o'clock because he couldn't sleep in the daytime when it's too light outside ... " The two employees thereafter started working from about I 1 p.m. to 7 a.m. They worked these hours for approximately I week and were then permitted to work from about 10 p.m. to 6 a.m. Mannque and Belevan are presently working from about 10 p.m. to 6 a.m.4 It was stipulated that the total hours of work for Manrique commencing week ending April 21 were: Week ending Hours worked 4/21 32 4/28 28 5/5 40 5/12 29-1/2 5/19 32 5/26 33-1/2 6/2 39 About May 4, Manrique received the following written criticism from his employer: Dear Mr. Ignacio Manrique, On May 3, 1973, you removed needle section from Machine # 63 . You proceeded to run # 63 without needle section which caused said machine to smash. Sincerely yours, /s/ Felix Gorski And, about May 10, Mannque received two written criticisms from his employer. One stated: On May 10, 1973, you ran machine # 73 with On cross-examination , Mannque acknowledged that Gorski did not expressly prohibit Mannque from working beyond 5 or 6 a in during the morning However, as Mannque testified, often he was "too tired" to work extra hours as he had done when permitted to work on the day shift Mannque also explained. Sometimes we have to stop working after five hours , six hours, because broken needle. As a result one complete roll of goods was damaged. Sincerely yours, /s/ Pres. Felix Gorski The other stated: Machine # 8 I-You ran machine with loose cam and butted dial. Machine # 82-You ran to stripes over order. Manrique never before had received a written criticism from his employer although he admittedly had made mistakes in the past. Ruben Belevan testified that he started working for Respondent Company during late October 1972. Belevan acknowledged that his hours varied. Up to the week ending April 14, 1973, Belevan's total weekly hours of work were: Week ending Hours worked 11/4/72 18 11/11 55 11/18 57 11/26 54-1/2 12/2 53 12/9 48-1/2 12/16 45-1/2 12/23 36-1/2 12/30 49 1/6/73 54 1/13 53-1/2 1/20 53 1/27 30 2/3 50 2/10 57 2/17 51 2/24 49 3/3 59-1/8 3/10 46-1/2 3/17 55-1/2 3/24 34-1/8 3/31 47 4/7 39-1/4 4/14 44-1/2 During the period of April 13, Belevan worked from about I i p.m. to 7 or 8 a.m. Belevan recalled that about April 16 or 17, coworker Ralph Alicea told Belevan: "Ruben, you like the -Union and now you have to work 35 hours a week, seven hours a day." Thereafter, as Belevan testified, employee Manrique apprised Belevan that both Belevan and Manrique would have to work from 4 p.m. to midnight. On April 18 or 19, the first day Belevan worked the 4 p.m. shift, Gorski told Belevan that he had "to take one I don't know how to proceed with the next job because I don 't have any instructions Mr Gorski never used to leave me a note or anything Now, sometimes I have to stop working at 5 o'clock in the morning because I didn't have any idea of what to do because nobody told me what is the yarn to be used or how many pieces any instructions . So, I have to stop the machine . and I went home. FELSA KNITTING MILLS, INC. hour lunch like the Union men say." Belevan asserted that "we don't need to take one hour." Gorski replied: "it's up to you, whenever you decide . . . A few weeks later, Gorski instructed Belevan to work from about 12 midnight to 8 a.m. Belevan complained to Gorski, as follows: I say to him that I can't stay so long, 8 o'clock in the morning, because the sun come up and it's too light outside. I can't fall asleep. Gorski did not answer this complaint. Belevan also heard Manrique complain to Gorski that he too had difficulty working the morning hours. No other employees-other than Manrique and Belevan-were working past 10 p.m. in the plants Belevan recalled that while working on the 4 p.m. to 12 midnight shift, Mr. Felix Gorski came over to me and tell me, "Ruben, I don't know what I'm going to do about your hours. I [am I going like crazy. When this thing is over, I give you back your hours. Belevan's hours of work commencing week ending April 21 were as follows: Week ending Hours worked 4/21 34 4/28 40 5/5 29-1/2 5/12 30 5/19 32 5/26 33-1/2 6/2 387 Belevan credibly testified that Gorski questioned him at work about a union meeting which had been scheduled for Easter Sunday. Gorski said: "You have a meeting yesterday" and Belevan replied: "Is supposed that we have a meeting but we didn't do it." Nothing else was said. About May 10 and 11, Belevan received his first written criticisms from Gorski. The May 10 letter from Gorski said: s Belevan testified that he did not know if Felix Gorski would pay him for a full lunch hour and, consequently, he wanted to take less time for lunch. Belevan discovered subsequently that he was in fact paid for his lunch break. 6 Belevan testified that his hours , like those of Manrique, were later changed from about 11 p.m to 7 am. and 10 p.m to 6 or 7 a.m 7 Belevan acknowledged on cross-examination that on occasion he could have worked later during the midnight shift, however, as Belevan explained, he did not want to work later because he could not fall asleep during the light hours of the morning s The testimony summarized in the above sections is based in large part upon the undisputed evidence of record and the credible testimony of employees Mannque and Belevan. I note that the testimony of employees Manrique and Belevan is mutually, orroborative. Further, their testimony is substantiated in part by tho employees' stipulated weekly hours of work and timecards and by the testimony of Company President Felix Gorski And, relying upon demeanor. I find and conclude that the testimony of Manrique and Belevan is credible and trustworthy. Insofar as the testimony of Mannque and Belevan conflicts with the testimony of Gorski, I find and conclude that the testimony of Manrique and Belevan is more trustworthy, reliable, and credible In particular. I do not credit Gorski's assertion that, in his view, employees Matos and Cartagena did not sign their union membership cards Nor do I credit Gorski's claim that a reason why he first issued written criticisms to employees Mannque and Belevan was because 507 Dear Mr. Ruben Belevan, On above date you did not report to work for the 4 to 12 shift. On Machine # 182 you ran 2 rolls of unauthorized goods. Sincerely yours, /s/ Pres. Felix Gorski The May 11 letter stated: On May 11, 1973, you ran 2 rolls of unauthorized goods on Machine # 182. A bad needle was not changed on Machine # 241. Your total production on this above date was 2 rolls-40 lbs. Sincerely yours, /s/ Pres. Felix Gorski8 111. DISCUSSION A. The 8(a)(1) and 8(a)(3) Violations The credited evidence recited above establishes that between April 1 and 12, 1973, employee Manrique obtained signed union membership cards from five out of the six unit employees at Respondent's Farmingdale plant. On Friday April 13, Union Representative Di Girolamo, accompanied by employee Manrique, met with Company President Gorski at the plant and there requested recogni- tion and bargaining as the designated bargaining agent for a majority of the Company's production employees. Gorski refused, claiming, inter alia, that "at the present time business was very slow . . . and he couldn't deal with the" Union. Shortly thereafter, on Tuesday or Wednesday of the following week, April 17 or 18, Gorski summarily instructed employee Manrique to report for work at 4 p.m. and work until midnight. Previously, Manrique had worked some 10 hours a day commencing generally about 12 noon. Gorski apprised Manrique: "From now on you have to work 35 hours a week. This is the Union hours. No overtime . . . . No Saturdays." That evening Manrique complained to Gorski that "it was not legal to work , . . alone in the plant" and Gorski promptly transferred he could not get to see them personally in order to criticize their work verbally Instead, as discussed below. I find and conclude that these written criticisms were a part of management 's harassment of the employees in an attempt to discourage employee union activities. in fact, as Gorski acknowledged, the written letters of criticism were issued after the unfair labor practice charge was filed in the instant case admittedly "to show the Labor Board the type of employees ..:' and, thus, in effect, to make a record against them In addition, I do not credit Gorski 's unsupported assertion that he changed Mannque's hours and Belevan's hours shortly after April 13 because of "changes in business operations " Further, Gorski acknowledged in part that he told both Manrique and Belevan that "if the Union does come into the shop we will run it as a strict 35 hour union shop" and that he "could not afford the extra time, overtime. I was paying them . " Gorski admittedly had no experience with any other union shops in his area. Further, I do not credit Gorski's assertion that he never told Belevan and Manrique that they could only work 8 hours a day and that the only reason why Manrique and Belevan worked 4 p.m. to 12 midnight for a 2-week period in April was "because we did not have a full set of machines for them to run . " Elsewhere in his testimony. Gorski claimed that he shifted Manrique to the 4 p.m shift because Manrique assertedly "had a very poor attitude toward the extra work." As discussed below, I am persuaded that Gorski in fact engaged in the above course of conduct in an effort to discourage his employees from engaging in Union protected activities. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coworker Belevan to the same shift. At the same time, Gorski informed employees Manrique and Belevan that "from now on you have to take one hour lunch"; Gorski asserted that "this is the Union's order." Previously, the employees had been permitted to take a short lunch break with pay since they kept their machines operating. Consequently, Manrique and Belevan reasonably under- stood Gorski's instruction to mean that they would now be docked for a full lunch hour. Mannque and Belevan complained to Gorski and Gorski responded: "It's up to you, you want to have half an hour or one hour. You stop the machines and you have an hour lunch." Dunng this same period, Gorski apprised Belevan: ". . . I don't know what I'm going to do about your hours. I [am] going like crazy. When this thing is over, I give you back your hours." Manrique and Belevan worked from 4 p.m. to midnight for approximately 2 weeks. Thereafter, about May 7, Gorski instructed Mannque and Belevan to work the midnight shift. The two employees were later permitted by Gorski to start work from about 10 p.m. instead of from midnight. However, as employee Mannque credibly explained, he could no longer put in his usual hours and overtime because he was "too tired" during the early morning and because Gorski had failed to leave instruc- tions necessary to work beyond 5 or 6 a.m. In this context Gorski, for the first time, issued a series of written criticisms to both Mannque and Belevan. On this record, I find and conclude that Company President Gorski-in delaying employee Mannque's start- ing time to 4 p.m. and thereby reducing the employee's hours of work-was retaliating against employee Mannque because of his chief role in the Union's organizational effort. At the hearing, Gorski asserted that he had changed Manrique's starting hours because of "changes in business operations"; "because he did not have a full set of machines for [the employees] to run . .."; and because Manrique "had a very poor attitude toward that extra work." I reject these unsupported assertions as pretextual and find instead that Respondent's action was motivated in substantial part by an unlawful purpose to discourage union activities, in violation of Section 8(1) and (3) of the Act. In addition, I find and conclude that Company President Gorski-in later transfenng employee Mannque to the midnight shift-was further retaliating against Manrique because of his union support, in violation of Section 8(1) and (3) of the Act. And, as a consequence of the later shift change, employee Mannque did not work his usual hours. Under the circumstances, I find and conclude that employee Manrique's loss of working hours and overtime on both the afternoon and evening shifts was the result of Respondent's union animus and, accordingly, in violation of Section 8(a)(1) and (3) of the Act. Gorski, in instituting these hour changes and shift transfers, had warned employee Mannque that "from now on you have to work 35 hours a week"; these are "Union hours"; there would be "no overtime" or work on Saturdays. In like vein, as shown above, Gorski made clear 0 Counsel further stated "Now I think what happened here, they [the employees] misunderstood the employer, perhaps the employer didn't communicate well to them. What the employer was saying, as the evidence established, that if the Union comes in here you 're going to be limited to eight hours of work minus a paid lunch hour " to the employees that they would lose their paid lunch period if the Union became their bargaining agent. I find and conclude that such statements constitute threats to reduce hours of work and overtime and eliminate benefits because of Uniori protected activities, in violation of Section 8(a)(1) of the Act. Cf. Byrne Dairy Inc. v. N.L.R.B., 431 F.2d 1363 (C.A. 2, 1970). Counsel for Respondent argued at the hearing that Gorski "was giving his prediction, what he knew about a Union contract, that it was a 35 hour week and . . . and an unpaid lunch period."9 Gorski admittedly had not received a union contract; he was generally unaware of the current terms of such a contract; and he made no attempt to explain to his employees "any reason why" the Company assertedly "would run 35 hours" "if we had a Union shop" 10 And, as the Supreme Court stated in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 616-620 (1969): Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear. Stating these obvious principles is but another way of recognizing that what is basically at stake is the establishment of a nonpermanent, limited relationship between the em- ployer, his economically dependent employee and his union agent, not the election of legislators or the enactment of legislation whereby that relationship is ultimately defined and where the independent voter may be freer to listen more objectively and employers as a class freer to talk. Cf. New York Times Co. v. Sullivan, 376 U.S. 254 (1964). ... Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a "threat of reprisal or force or promise of benefit." He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the 70 Gorski was uncertain and could not recall whether he also said to the employees that he "could not afford overtime" with a union There was no credible evidence adduced bearing upon Respondent 's financial capability in this respect FELSA KNITTING MILLS, INC. statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection 3f the First Amendment. Here, I find and conclude that Gorski's statements to his employees pertaining to a 35-hour week, loss of overtime, and loss of a paid lunch period were not "carefully phrased on the basis of objective fact to convey an employer's belief as to the demonstrably probable consequences beyond his control . . ." (ibid. ). Instead, I find and conclude that such statements clearly tended to interfere with employee Section 7 rights. And, as found, Respondent discriminatorily implemented these threats by reducing the hours of both Mannque and Belevan. In addition, in this context, I find and conclude that Respondent's sudden issuance of written criticisms to employees Mannque and Belevan was part of the Compa- ny's unlawful purpose to discourage employee union activities, in violation of Section 8(a)(1) and (3) of the Act. I do not credit Gorski's assertion that he suddenly issued these unprecedented written criticisms to Manrique and Belevan, two of his oldest employees, because he could not get to see them in person. See, N. L. R. B. v. Texas Industries, 426 F.2d 812 (C.A. 5, 1970). Further, I find and conclude that Gorski's statement to Belevan that "when this thing is over, I give you back your hours" is plainly a promise of benefit calculated to discourage employee union support, proscribed by Section 8(a)(1) of the Act. Cf. N.L.R.B. v. Marsellus Vault & Sales, Inc, 431 F.2d 933, 937 (C.A. 2, 1970)." B. The 8(a)(5) and (1) Violation And the Propriety of a Bargaining Order While the Board normally views a secret ballot election as the most satisfactory method of resolving questions of representation, it has recognized that certain special circumstances may require reliance upon other indicia of employee sentiment. Thus, where a union has obtained valid authorization cards from a majority of the employees in an appropriate unit but the employer engages in a course of unlawful conduct which tends both to destroy this majority and to negate the likelihood of a future fair election, the Board has concluded, with the approval of the courts, that the status quo ante would be most nearly restored and the policies of the Act best effectuated by an order requiring the employer to bargain with the union which, prior to the unfair labor practices, had been designated as the representative by a majority of the 11 As stated, employee Belevan was assigned to work with employee Mannque from 4 p.m to midnight from about April 18 to about May 7 after Manrique complained about working in the plant alone I find and conclude that management 's conduct-in assigning Manrique to this shift-was discriminatorily motivated and, as a consequence, resulted in both Mannque and Belevan working less hours of employment than they normally would have worked, in violation of Sec 8(axl) and (3) of the Act. However, I note that counsel for General Counsel does not plead or claim that Belevan's later assignment to the midnight shift was, like in the case of Mannque, unlawful. Further, counsel for General Counsel does not plead or claim that Belevan was unlawfully deprived of work, like in the case of Mannque, on the midnight shift. It is alleged that Company President Gorski violated Sec. 8 (a)(1) of the 509 employees. See, e.g., N.L.R.B. v. Marsellus Vault & Sales, Inc., supra; Byrne Dairy, Inc. v. N. L. R. B., supra. In N. L. R. B. v. Gissel Packing Co., Inc., supra at 615, the Supreme Court stated the rule as follows: In fashioning a remedy in the exercise of its discretion, the Board can properly take into consideration the extensiveness of an employer's unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue Applying this principle to the instant case, I find and conclude that the Union by April 12 had secured signed membership cards from five of the six employees in an appropriate bargaining unit and, on April 13, the Union requested recognition as the employees' bargaining agent. The Company refused and instead retaliated against the key union protagonist, employee Manrique, by reducing his hours of employment and later transferring him to the midnight shift with a further loss in hours of work; by threatening employees with a reduction in hours and overtime work and the elimination of a paid lunch period; by issuing employees letters of criticism; and by promising employee Belevan a return of his hours "when this thing is over." In the context of a unit consisting of some six workers, I find and conclude that the foregoing acts of interference, restraint, coercion, and discrimination were calculated to destroy the Union's majority support among the employees and negate the likelihood of holding a future fair election. I find and conclude that the possibility of erasing the effects of these unfair labor practices among the six unit employees by use of traditional remedies is at best slight. In sum, I find and conclude that Respondent has violated Section 8(a)(5) and (1) of the Act and a bargaining order is an appropriate remedy to effectuate the purposes and policies of the Act. CONCLUSIONS OF LAW 1. Respondent Felsa Knitting Mills, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Charging Party Local 107, International Ladies' Act when he asked employee Belevan about a union meeting scheduled for Easter Sunday Under all the circumstances, I am not persuaded that Gorski's single statement was coercive Cf. N L R B v Long Island Airport Limousine Service Corp, 468 F 2d 292, 295 (C.A 2. 1972). Likewise, it is claimed that Company President Gorski unlawfully granted employee Jorge Cartegena a paid vacation However, Gorski, with the assistance of his payroll record, testified that Cartegena did not receive a paid vacation Under the circumstances , I find that the General Counsel has not established this violation as alleged Finally, it is claimed that Ralph Alicea, a unit employee, was at all times matenal an agent or Respondent General Counsel has not sufficiently established this assertion and, consequently. I would not charge to the employer coercive statements allegedly made by Alicea. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garment Workers' Union, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (3) of the Act by threatening its employees with a reduction in hours and overtime work and the elimination of a paid lunch period; by offering and promising an employee the return of his hours of work; by transferring employee Ignacio Manrique to less desirable work shifts and providing him with less employment than he previously had received and would normally have received; by providing employee Ruben Belevan with less employment than he previously had received and would normally have received; and by issuing letters of criticism to employees Mannque and Belevan-all in an effort to prevent and discourage its employees from supporting the Charging Party Union and exercising their rights under Section 7 of the Act. 4. All production and maintenance employees of Respondent employed at its Farmingdale plant, exclusive of office clerical employees, guards, professional employ- ees and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meamng of Section 9(b) of the Act. 5. On or about April 13, 1973, a majority of the employees of Respondent in the unit described above designated the Charging Party Union as their representa- tive for the purposes of collective bargaining with Respon- dent and at all times since said date the Union by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all the employees in said unit for the purpose of collective bargaining. 6. On or about April 13, 1973, the Charging Party Union requested Respondent to recognize and bargain with it as the exclusive bargaining representative of Respondent's employees in the unit described above with respect to rates of pay, wages, hours of employment, and other terms and, conditions of employment of such employees. 7. On or about April 13, 1973, Respondent refused and since said date has continued to refuse to recognize and bargain collectively with the Charging Party Union as the exclusive collective-bargaining representative of Respon- dent's employees in the unit described above and, instead, has engaged in the unlawful acts of interference, restraint, coercion, and discrimination as found herein in order to undermine the Charging Party Union and to destroy its majority status among the employees in the unit described above. 8. Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain collectively with the Charging Party Union as the designated bargain- ing agent of its employees in the unit described above. 9. Respondent has not committed further violations of Section 8(a)(1) of the Act as alleged in the complaint and those allegations are dismissed. 10. The unfair labor practices found herein are unfair 12 At the hearing, counsel for Respondent argued that both employees Manrique and Belevan were being compensated by the Union for their alleged loss of hours of work and overtime and, consequently, the two employees voluntarily determined not to work their usual hours The record labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. And, as the unfair labor practices committed by the Respondent are of a character striking at the core of employee rights safeguarded by the Act, I shall recommend that it cease and desist from in any other manner infringing upon rights guaranteed employees in Section 7 of the Act. It has been found that Respondent, -in violation of Section 8 (a)(1) and (3) of the Act, discriminatorily transferred employee Ignacio Manrique to less desirable work shifts and provided him with less employment than he previously had received and would normally have received. It will therefore be recommended that Respon- dent offer employee Manrique immediate and full rein- statement to his former or substantially equivalent position or shift, without prejudice to his seniority or any other rights and privileges, and make him whole for any loss of earnings suffered by reason of the foregoing discriminatory conduct by paying to him a sum of money equal to that which he normally would have earned from the dates of the discrimination to the date of Respondent's offer of reinstatement, less net earnings during such period,12 with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. Backpay shall carry interest at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, it has been found that Respondent, in violation of Section 8(a)(1) and (3) of the Act, discriminatorily provided employee Ruben Belevan with less employment than he previously had received and normally would have received from about April 18 through about May 7, 1973. It will therefore be recommended that Respondent make employee Belevan whole for any loss of earnings suffered by reason of this discrimination, as provided above in the case of employee Manrique. And, it will be recommended that Respondent preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of these recommen- dations. It also has been found that Respondent, in violation of Section 8(a)(1) and (3) of the Act, discriminatonly issued letters of criticism to employees Manrique and Belevan. It will be recommended that Respondent remove and expunge from its records and files all references to said letters of criticism. Finally, it has been found that Respondent violated Section 8(a) (5) and (1) of the Act by refusing to recognize and bargain with the Union as the designated agent of a does not establish that the employees voluntarily determined not to work their usual hours or overtime in order to receive payment from the Union In any event . this is a matter for determination in compliance proceedings since it properly pertains to the computation of backpay FELSA KNITTING MILLS, INC. majority of employees in an appropriate unit and that, because of Respondent's unfair labor practices as found herein, the possibility of erasing the effects of those unlawful practices among the Company's six unit employ- ees and ensuring a fair election is at best slight. Conse- quently, as discussed supra, it will therefore be recommend- ed that a bargaining order is necessary and appropriate to effectuate the purposes and policies of the Act. ORDER 13 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, Respondent Felsa Knitting Mills, Inc., its officers , agents, successors and assigns , shall: 1. Cease and desist from: (a) Threatening its employees with a reduction in hours of work and overtime work, the elimination of a paid lunch period , or any other reprisals if they choose, or continue their support of, Local 107, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organiza- tion as their bargaining representative; (b) Telling employees that their previously eliminated hours of employment will be restored when the above Union's organizational effort is ended; (c) Discouraging union membership or activities or other employee protected activities by transferring employees to less desirable work shifts, by providing them with less hours of employment than they normally would have received and by issuing them letters of criticism, or by discriminating against them in regard to hire and tenure of employment or in regard to any other condition of employment because of their union support, affiliation, or protected concerted activities; (d) In any other manner interfering with , restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above Umon or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other protected concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request , bargain collectively with Local 107, International Ladies' Garment Workers' Umon, AFL-CIO, as the exclusive representative of all the employees in the unit described below and, if an understanding is reached, embody such an understanding in a signed agreement . The unit consists of: All production and maintenance employees of Respondent employed at its Farmingdale, New York plant, exclusive of office clerical employees , guards, professional employees, and all supervisors as defined in Section 2(11) of the Act; (b) Offer to employee Ignacio Manrique immediate and full reinstatement to his former shift or position or, if that shift or position no longer exists, to a substantially equivalent shift or position without prejudice to his seniority or other rights and privileges, and make him 511 whole for any loss of earnings in the manner set forth in this Decision. (c) Make employee Ruben Belevan whole for any loss of earnings in the manner set forth in this Decision. (d) Remove and expunge from its records and files all references to letters of criticism issued discriminatorily to employees Manrique and Belevan. (e) Preserve and make available to the Board or its agents all payroll and other records, as set forth in this Decision. (f) Post at its plant at Farmingdale, New York, copies of attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt "thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 29, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith. 14 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, recommendations, 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 objections thereto shall be deemed waived for all purposes 14 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 the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that Felsa Knitting Mills, Inc. violated the National Labor Relations Act and ordered us to post this notice. We therefore notify you that: WE WILL NOT threaten our employees with a reduction in hours of work and overtime work, the elimination of a paid lunch period, or any other reprisals if they choose, or continue their support of, Local 107, International Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization, as their bargaining representative. WE WILL NOT tell employees that their previously eliminated hours of employment will be restored when the Union's organizational effort is ended. WE WILL NOT discourage union membership, or union activities or other protected concerted activities, by transferring employees to less desirable work shifts, by providing employees with less hours of employment than they normally would have received, by issuing 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees written letters of criticism , or by discrimi- nating against them in regard to hire and tenure of employment or in regard to any other condition of employment because of their union support , affiliation, or protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist the above Union or any other labor organization , to bargain collectively through representatives of their own choos- ing and to engage in other protected concerted activities 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 bargain collectively with Local 107, International Ladies' Garment Workers' Union , AFL-CIO, as the exclusive representative of all the employees in the unit described below and, if an understanding is reached , embody such an understand- ing in a signed agreement. The unit consists of: All production and maintenance employees of Felsa Knitting Mills, Inc., employed at its Farmingdale, New York, plant, exclusive of office clerical employees, guards, professional employ- ees, and all supervisors as defined in Section 2(11) of the Act. WE WILL offer to employee Ignacio Mannque immediate and full reinstatement to his former shift or position or, if that shift or position no longer exists, to a substantially equivalent shift or position, without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings, as provided in the Board's Decision and Order. WE WILL make employee Ruben Belevan whole for any loss of earnings , as provided in the Board's Decision and Order. WE WILL remove and expunge from our records and files all references to letters of criticism issued discrimi- natorily to employees Mannque and Belevan. Dated By FELSA KNITTING MILLS, INC. (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, 4th Floor, Brooklyn , New York 11241, Telephone 212-596-3535.