Jimmy-Richard Co. Inc.

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jimmy-Richard Co. Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Cases 10-CA-10376 and 10-RC-9582 May 22, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On February 11, 1974, Administrative Law Judge George J. Bott issued the attached Decision in this proceeding. Thereafter, the Respondent and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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, 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 the Respondent, Jimmy-Richard Co. Inc., Hawkinsville, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the petition in Case 10-RC-9582 be, and it hereby is, dismissed. DECISION STATEMENT OF THE CASE GEORGE J. BoTT, Administrative Law Judge: The hearing in these consolidated cases was held before me in Hawkinsville, Georgia, on December 4, 5, and 6, 1973. Case 10-RC-9582 began with a Petition for Certification of Representatives filed by Amalgamated Clothing Work- ers of America, AFL-CIO, herein Union or Petitioner, on April 16, 1973. Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Regional Director for Region 10 of the National Labor Relations Board on May 9, 1973, an election by secret ballot was conducted on June 1, 1973. The Union lost the election by a vote of 50 to 42, and, on June 8, 1973, filed objections to the election. The Regional Director investigated the objections and issued a report on objections in which he concluded that substantial and material issues of fact had been raised which could best be resolved by a hearing. On September 17, 1973, the Board adopted the Regional Director's recommendations as contained in his report. The unfair labor practice case began with a charge filed by the Union on September 11, 1973, against Jimmy- Richard Co. Inc., herein Respondent or Employer, on which the Regional Director issued a complaint on November 14, 1973, alleging that Respondent had violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act. Since some of the issues raised by the objections parallel those raised by the allegations of the complaint, the Regional Director consolidated the cases for hearing. All parties were represented at the hearing. Subsequent to the hearing, General Counsel and Respondent filed briefs which have been carefully considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Georgia corporation with a place of business located in Hawkinsville , Georgia, where it is engaged in the manufacture of men's and boys' garments. During the calendar year preceding the issuance of the complaint, Respondent sold and shipped from its Haw- kinsville plant finished products valued in excess of $50,000 directly to customers located outside the State of Georgia. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Independent Violation of Section 8(a)(1) of the Act 1. Solicitation of withdrawals from the Union The Union has made two prior attempts to organize Respondent's employees. An election held in 1968 was set aside by agreement of the parties after the Union filed objections to its conduct. The Union also lost the 1969 election, but it filed no objections. In late 1972 and early 1973, the Union again solicited and obtained employee signatures to cards designating the Union as the signer's bargaining representative, and the complaint alleges that Respondent, "on or about May 15, 1973," in violation of the Act, "solicited individual employees to sign letters withdrawing their support of the Union." At the hearing, at the request of Respondent's counsel, General Counsel produced 12 letters signed by employees of Respondent stating that the signer had signed a union card and wanted it returned. The language of the letters is identical. The letters had been received by the Union and had been turned over to the Board during the investigation of these cases. 210 NLRB No. 134 JIMMY-RICHARD CO. Durwood Dominy, Respondent's plant manager, testi- fied that the letters had been typed by a secretary in Respondent's office, but he also stated that in each case the employee came to him of her own accord, or sent word to him through another employee, and told him that she had signed a union card, but had changed her mind, wanted to get out of the Union, and needed advice on how to do it. Dominy testified that he advised each employee that he had a form which the employee could sign and deliver to the person who had obtained the employee's signature to a union card. He said that the employees asked that he have the letters prepared, and he did. He denied asking any employee in these cases whether they had signed union cards. He had no recollection of having copies made of the letters, but he said he had searched for copies and found none in the Company's files. Employee Austin signed a union card on April 6, 1973. She testified that she became "nervous" after she signed the card and wanted to get it back. Having heard other employees talking about a letter which they had signed, she spoke to Dominy and asked him about the letter. She also testified that Dominy asked her if she had signed a union card and agreed to send a letter for her signature when she said she had. He never did. Austin was somewhat confused in her testimony. She indicated at one point that Dominy raised the subject of signing a letter to the Union when he appeared at her station but at another she said she did. It is clear from the whole of her testimony that she solicited Dominy's assistance. I also find that Dominy did not ask her if she had signed a union card and in any case, if he did, it would have been a natural and innocent reaction to her inquiry about signing a letter to the Union. Employee Snell signed a union card on February 6, 1973. She testified that Dominy, without being invited by her, twice came to her machine and asked her if she wanted to sign a paper withdrawing from the Union. She also said that he asked her if she had signed a union card before he presented her with a form letter to the Union, and she added that she kept the letter without signing it and did not show it to anyone. There is nothing in the affidavit Snell gave an investigator for the Board about Dominy asking her to sign a letter. I credit Dominy's testimony that he approached employees only if they had indicated to him directly or through another employee that they wanted to have their union cards returned to them. I find further that if Dominy did talk with Snell in this regard it was in the circumstances he described.' Whether an employer violates Section 8(a)(1) of the Act by involving itself in employee revocations of their union authorizations depends upon the extent of the employer's participation in the process. Where, as here, employees initiate the requests to withdraw and the employer returns i Some corroboration of Dommy's testimony about the way he operated in this area is found in the testimony of some of General Counsel's witnesses. Gail Lemmon testified that she signed a letter withdrawing her union card after she asked an employee to tell Dominy that she wanted to see him. She asked Dominy to "explain the union" to her when he appeared, she said, and when he asked her if she wanted to get out of it, she replied that she did because she did not understand it Juanita Dellemar testified that an employee told her that if she did not want the Union she could sign a paper and get her card back Someone told Dominy that she wanted to talk with him, and when he came to her machine she told him that she did 803 the letters to the employees, so that they can deliver them to the Union, and does not keep copies for its files, the fact that the resignations were prepared or typed by the employer does not make its actions illegal. I find that Respondent did not interfere with, restrain, or coerce employees in the exercise of their rights under the Act by Dominy's actions in connection with the withdrawal requests.2 2. Interrogation The complaint alleges that Respondent, by Plant Manager Dominy, illegally interrogated employees about their union membership and activities, but the only evidence in the record to support his allegation is found in the testimony of employees who testified about Dominy's help in preparing their union withdrawal letters. I have credited Dominy's testimony that he asked no employee whether she had signed a union card when he talked with her about getting her card back from the Union, and I have also indicated earlier that, even if he did, it had to be in response to the employee's request for assistance in having the card returned to her. In such circumstances, the inquiry, if made, could not have interfered with the employee's Section 7 rights. I find that Respondent did not violate the Act in this respect, as alleged. 3. Threats of reprisal The complaint alleges that on various dates in May 1973, Respondent, by Dominy, threatened employees that "if the Union were designated as the employees ' collective bargaining representative and requested too much money, Respondent would close the plant ." The questions here are whether these statements were made and, if so, whether they constituted a violation of the Act. Fifteen employees testified that during a period of approximately 2 weeks prior to the June 1 election, Dominy made statements to them about Respondent closing down and leaving Hawkinsville if the Union won the election. Dominy conceded that he spoke with approximately 60 employees before the election and told them that Respondent would close the plant under certain conditions, but there is a dispute about the precise words he used in describing those conditions to the employees. Some of the employee witnesses testified that Dominy told them that the plant would close if the Union won the election and "demanded too much." For example, Eliza- beth Brown testified that Dominy told her almost exactly that, and she said she told Dominy that she did not think that the Union would demand "too much." She denied that Dominy had included the words "could not afford" in his remarks about the Union's demands. Employees not "understand the union " She said she asked him if he could not "give [me] some papers to sign" in order to get her union card back Dominy replied that he could, if she desired it She said she did, and he brought her the letter and left it with her Lois Taylor identified her letter of withdrawal, but in no way indicated that Dominy had solicited it 2 Continental Nut Co , 195 NLRB 158 ; Kay Electronics, Inc, 167 NLRB 1104, cf Hatteras Yachts, AMF Incorporated, 207 NLRB No 156, Jai Lai Cafe, Inc, 198 NLRB No 108, Cumberland Shoe Company, 160 NLRB 1256, 1259 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams, Asbury, Austin, and Yansom testified to the same effect as Brown. Respondent would close and move back to St. Louis if the Union won the election and "demanded too much money," and they denied that Dominy had included the signing of a union contract that Respondent could not afford as a factor in Respondent's conditional plans to move. Most of the employees who testified, however, agreed that Dominy stated that the plant would be closed if Respondent could not "meet" or "afford" the Union's demands. Anderson, for example, said he told her that if the Union won and made "unnecessary" demands which the Company "couldn't meet," then it would close down. Employees Bray, Lemmon, Lindsey, Owens, Twiggs, and Carter also remembered Dominy describing the Union's demands that would cause a plant closing as demands that Respondent could not "meet" or "afford." None of the employees recalled Dominy saying anything about Re- spondent being forced to sign a contract when he spoke to them about what Respondent would do if the Union made demands which Respondent could not "afford."3 Dominy testified that in talking to employees before the election he took pains to use the same language with each person. He said he told them that "if the Union were voted in and we were forced to sign a contract that we could not meet, caused us to have excessive costs, that we would have to close down." He said he had discussed this subject with Respondent's president, Lieberman, and with counsel before he spoke with employees, and that he decided to use the words "forced to sign a contract" as one of the conditions which would cause Respondent to close its plant because counsel had advised that this was a legally permissible choice of expressions.4 I do not credit Dominy's testimony that he carefully used the same language in talking to each of the 60 employees he spoke with and included in his remarks the words "forced to sign a contract." First of all, I was impressed by the testimony of those employee witnesses who denied on cross-examination that Dominy had mentioned signing a contract when he talked with them, although they readily conceded that he used, or could have used, the words "meet" or "afford." On the other hand, Dominy's explanation that he chose that language as a possible legal alternative on the advice of counsel was not at all impressive, and it seems extremely doubtful to me that Respondent would take a narrower, more conservative and legalistic approach in its individual contacts with employ- ees during its preelection campaign than it did in its prepared speeches and letters. As indicated above, there is nothing in President Lieberman's speech to em_ loyees before the election about union contracts being forced on Respondent, thereby causing it to close down, although 3 In answer to a proper but leading question on cross-examination, Leila Owens answered "yes" to the proposition that Dominy said if the Company "had to enter a contract in which there were expenses that they could not afford that they'd have to leave and you might lose your machine " On redirect she repeated her earlier testimony, and she added that she did not recall Dominy saying anything about a contract. I recall the witness well, and I find that she was confused when she replied to Respondent's counsel's question and that she actually had no recollection of "contract" being mentioned by Dommy 4 Lieberman did not testify In a speech he gave to employees before the election he stated that "If the Union should come into our plant, and force "unreasonable demands" and harmful strikes and unpleas- ant picket lines are skillfully woven into the speech. Dominy also wrote a letter to the employees before the election which, like Lieberman's text, advises them that the plant will close "if the union comes in and forces upon us expenses that we cannot afford" but which contains nothing about signing a contract. Supervisor Gillis also talked to employees about the Union's efforts to organize the employees and about the coming election. She said that she told "8 or 9" employees that if the Union were to win the election and "demanded more than the company could meet then it might have to close." It is extremely unlikely that she would have assumed the responsibility for taking a course inconsistent with Dominy's by failing to use the words "forced to sign a contract," which Dominy said he was so careful to use with each employee, and this is another reason for not accepting Dominy's version of what he said. As indicated, I find that Dominy did not carefully stay with a prepared script in his approaches to employees. I find further that in some cases he said the plant would close if the Union won the election and made "unreasona- ble demands," in others that it would if it demanded "too much money" and in other cases he added language about the company's ability to "afford" or "meet" the Union's demands. In no case did he mention being "forced to sign a contract." 5 The question of the property of Dominy's statements to employees about plant closure must be decided in the light of the principles stated in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969). There the Court established certain standards for determining whether an employer's state- ments about the effects of unionization are permissible. The Court stated that any evaluation of employer's statements "must take into account the economic depend- ence 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 disinterest- ed ear."6 Accordingly, the Court continued: . .. an employer is free to communicate to employ- ees any of his general views about unionization or any of his specific views about a particular union so long as the communications do not contain a `threat of reprisal 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 con- trol or to convey a management decision already upon us expenses which we cannot afford and that will destroy our ability to be competitive, we obviously will have no choice but to go out of business and leave Hawkmsville " At another point in the text from which he read, Lieberman repeated "if the Union forces us to incur costs that we cannot afford, we would have no choice but to close down " 5 It is not even claimed that he or any other company representative indicated in their remarks, letters, or speeches to employees that Respon- dent intended to bargain with the Union in good faith if it did win the election. 6 NLRB v Gissel, supra, 395 U S at616 JIMMY-RICHARD CO. 805 arrived at to close the plant in case of unionization [citation omitted]. 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 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 of the First Amendment.7 demands for conditions that the Union has not been able to obtain from employers under contract with the Union-was a misrepresentation designed to deceive the employees, not a carefully phrased prediction based on objective facts of how unionization would result in plant closure. I conclude that Respondent, by Dominy' s statements about closing the plant, violated Section 8(a)(1) of the Act.9 Judged by these standards, Dominy's statements to employees that Respondent would close the plant if the Union won the election and made "unreasonable" de- mands or demands that Respondent could not "afford" were, in my opinion, unlawful. First, there was no support for Respondent's "basic assumption that the Union, which had not yet presented any demands ..." would present demands that were unreasonable or which Respondent could not meet.8 Indeed, Respondent presented no facts in regard to what kind of a wage or other demand it considered reasonable or as to what economic concessions it could afford to make. We do not know whether Respondent's business is extremely profitable or in poor financial condition. Respondent clearly created the impres- sion that it would make a judgment unilaterally on the "reasonableness" of the Union's demands on the basis of undisclosed criteria, and, having so decided, closing would inevitably follow. Second, the statements did not convey a management decision already arrived at to close the plant in the event of unionization, but contained threats to make that decision after the employees had voted in the election and even before collective bargaining ever got started. Third, the statements are not careful and honest predictions based on known facts, for they are inconsistent with other statements made by Respondent in the campaign. In his letter to employees, Dominy claimed that the benefits which Respondent was supplying at the time were "equal to or superior to the plants in our area, union or non-union." Lieberman, in his speech to employees before the election, stated that Respondent provided such cost items as wages, insurance, vacations, and holidays, "as good as, and, in many cases, superior to" comparable companies, union and nonunion. Supervisor Gillis testified that she told employees that she thought the Union would not do them any good because they "were getting as much or more than the (unionized Opelika) plant down the street." Respondent's inconsistency in telling employees at one time and place that they were as well off or better off than employees in union plants, and at other times and places, that the Union will make "unreasonable" demands on Respondent which it cannot afford-that is to say, 7 Id at 618 8 Ibid 9 N L R B v Gissel, supra, Marathon LeTourneau Company, 208 NLRB No 39, James Hoomain d/b/a Chicago Master Mattress and Furniture Company, 196 NLRB 579. Texas Industries Inc, v N L R B, 336 F.2d 128 (C A 5, 1964) and cases cited therein, relied upon by Respondent, were decided before Gissel, but in any case, for the reasons already stated, I do not consider Dommy's statements in this case to fall within the area found protected by the court in Texas Industries See for example, N L R B v. Birdsall Construction Company, 487 F 2d 288 (C A 5, 1973). For another court of appeals case decided since Gissel, see N L R B v Lenkurt Electric 4. Promises of benefits Prior to July 1973, employees with 6 months' service received a I-week vacation with pay in the summer and 2 weeks at Christmas time. Memorial Day has never been a paid holiday. The complaint alleges that Supervisor Gillis, in May 1973, promised employees a 2-week summer vacation and a paid Memorial Day holiday if the Union were not designated in the coming Board election. Eight employees testified on this subject as follows: Stanley: Just before the election Gillis, first asking her if she had "heard the good news," told her that the employees would get 2 weeks' vacation in July and 1 week in December. Hinson: Shortly before the election, Gillis told her that she had been directed to tell her that if the Union were defeated, the employees would receive a 2-week vacation and Memorial Day as a holiday. Floyd: She had two conversations with Gillis about it. In the first, Gillis told her about the paid vacation and extra holiday if the Union were voted down. Later, other employees asked Gillis about the matter, but Gillis did not answer them. Floyd then called Gillis to her machine and asked her to repeat what she had told her earlier, which Gillis did. Floyd asked Gillis why she had not given the same information to the other employees. Gillis replied that Respondent's attorney had advised her not to tell everyone but only those she thought were against the Union. Snell: Although not alleged in the complaint, Snell testified that Dominy told her in April 1973 that he had an understanding with President Lieberman that the employ- ees would get an extra paid holiday and 2 weeks' vacation if the Union lost the election. Austin: A week or so before the election, Gillis asked her if she had heard the "good news"; that is, if the Union lost the election, the employees would get a 2-week vacation in July and a paid Memorial Day holiday the following year. Peavey: She had heard talk in the department previously about it, but 2 weeks before the election Gillis mentioned "good news," and then stated that if the Union did not come in the employees would get 2 weeks' vacation in July. Co., 438 F 2d 1102, 1106 (C A 9, 1971). There the court stated that it read Gissel as establishing two standards by which an employer's speech may be objectionable. It explained that an employer may not indicate in his predictions that he will, of his own volition and for his own reasons, inflict adverse consequences upon his employees if they choose the Union, and also he may not, in the absence of a factual basis thereof, predict adverse consequences arising from sources outside his volition and control. Dominy's statements were objectionable under both standards, but more clearly under the second Cf. N L. R.B. v. River Togs, Inc., 382 F.2d 198 (C A. 2, 1967) 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis: Gillis, on the day before the election, told her that she had "good news" because she had been called to the office and informed that the employees would get an extra paid holiday on Memorial Day and 2 weeks' vacation in July if the Union lost the election. Lindsey: When Gillis asked her if she had heard the "good news," she did not reply because she had already heard other employees talking about getting a 2-week vacation if the Union was not voted in. Dominy testified that because of pressure from Lieber- man, who complained to him about the need to have sample garments ready in late December or early January, he and Lieberman agreed, in January 1973, to shift the 2- week Christmas vacation to July and give the employees only I week off at Christmas time. He said he told two supervisors about this decision but did not announce it to employees before June 15 because some employees would suffer because of the decision. He explained that since 6 months' employment is necessary to qualify for vacation, approximately 25 employees, who had not that much service in July, would get no vacation then, but would have gotten 2 weeks instead of 1 in December if they were still employed and if the policy had not been changed. He also denied that he had told anyone that they would receive a 2- week vacation in July or get Memorial Day as a paid holiday if the Union were defeated in the election. Gillis testified that she learned of the change in Respondent's vacation policy from Dominy in early March. She said she did not tell the employees about it until about 2 weeks before the election when she spoke to a group of 8 to 10 employees who had happened to come together and who asked her about the Company's vacation plans. When they did, she said she explained the change in policy and the basis for it, describing the change as "good news" for those who thought it was good news. She said that some employees liked the change and others did not. For herself, she was indifferent about the change, and she said she had told Dormny that most of the employees would be against it. Like Dommy, she 1so said a substantial number would receive no vacation in July because they had not been employed long enough. She denied that she had told any employee that if the Union lost the election there would be an added paid holiday. I credit Dominy's testimony that the change in vacation scheduling was decided on no later than January 1973, and Gillis' testimony that she and another supervisor learned of it in early March 1973. The testimony is uncontradicted and there is no rational reason to discredit it. I also find on the basis of their testimony that the new polir; was not much of a benefit to employees, and that many employees, who would have gotten 2 weeks' vacation in December under the old policy, got no vacation in July 1973 and only 1 week in December 1973 because of their hiring dates. On the other hand, I credit the testimony of the employees that Gillis approached them individually and told them about the vacation change. Although I think that Snell was probably confusing her conversations with Dominy with one she had with Gillis, I was impressed by the testimony of the other employee witnesses, particularly Hinson's and Floyd's. Floyd had two conversations with Gillis, and she testified logically and with apparent sincerity. Although Gillis testified generally that she had no individual conversations with employees in this area, she did not specifically deny Floyd's testimony about why she (Gillis) had told only selected employees about the rescheduling of vacations. The words "good news" also appear in the testimony of most of the employee witnesses, and Gillis admitted she used them. This is some indication that their testimony was not contrived. I credit them, and I find that Gillis, shortly before the election, informed employees that she had "good news" for them because she had been told to tell them that they would get 2 weeks off in July with pay. I also find, contrary to Gillis' denial, and on the basis of the credited testimony of the employees, that when Gillis spread the word about vacation, she added a promise about Memorial Day becoming another paid holiday in 1974 if the Union did not win the election. Since I have found that Respondent had decided to change its vacation policy before the Union filed for an election and because a substantial number of employees would lose because of the change, no one can be certain why Respondent announced its decision to employees just before the election. The logic of the situation, however, is that information about the change was getting to employ- ees in the plant and that Respondent decided to use it to its advantage in its preelection propaganda, describing it as "good news" for the benefit of those who might prefer to be off in July, rather than in December, and adding a paid holiday to the package to take the sting out of the announcement for those who were indifferent to it or lost by it. I find that by indicating to employees that they would benefit from Respondent's change in policy and by promising them an additional paid holiday, all on condition that they vote against the Union in the election, Respondent violated Section 8(a)(1) of the Act. B. The Refusal To Bargain 1. The appropriate unit The complaint alleges, Respondent admits, and I find that all production and maintenance employees of Respon- dent at its Hawkinsville, Georgia, plant, but excluding office clerical employees, professional employees, technical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2. The demand and refusal By letter dated April 12, 1973, the Union advised Respondent that it represented a majority of its employees in the unit and asked to meet to discuss a contract covering them. On April 16, 1973, Respondent wrote the Union stating that it refused to recognize it as bargaining agent for the employees because it doubted that the Union represented a majority of employees. As indicated earlier, on April 16, 1973, the Union filed a petition for an election with the Board. JIMMY-RICHARD CO. 3. The Union's majority status There were 94 persons employed in the appropriate unit who appear on the payroll covering the period April 12 to 16. All 94 also appear on the payroll for the week ending April 27, 1973, which was used in the June 1, 1973, election. During the course of the hearing, 61 signed authorization cards were admitted into evidence.10 At the close of the hearing it was stipulated that 2 of the 61 were for persons who were not on the Company's payroll at any time material to this proceeding. We start out with 59 designa- tions, therefore, but Respondent questions the validity of the cards on various grounds. A certain number of employees authenticated their own authorization cards, but the majority of the cards were authenticated by a union representative or another employee. These persons testified credibly that they either saw the employee sign the card or gave it to the employee and received it back already executed. Cards authenticated on such a basis are valid.11 Respondent also claims that many of the cards were obtained on the basis of a misrepresentation that if employees signed them they would be given "free insur- ance" and 2 weeks' vacation in the summer. I find no merit in this contention. It is clear from the testimony of Elizabeth Brown that, when she was talking about "free insurance" in soliciting employees to sign a union authorization card, she was not promising them an immediate gift but was trying to explain what would happen if the plant were organized and a contract were signed. She said, for example, that she told employees that other union plants had such benefits. Employee Yansom testified that union representative Vanooyen told her that "free insurance" would follow a union contract. It appears that Respondent provides employees with free health and hospitalization insurance for themselves but not for their spouses or other dependents. What the Union was engaging in, it is clear from the context in which the remarks were made, was commonplace election propagan- da long found by the Board and courts not to be objectionable. 12 Respondent also contends that the employees who signed cards were mislead because the back of the card "indicates with definiteness" that the Union already has a collective-bargaining contract with Respondent. On the reverse of the card is a checkoff authorization which authorizes dues deductions, in accord with existing law, "for the period of one year until the termination of the collective-bargaining agreement between my Employer and the Union, whichever occurs sooner...." The Union has been trying to organize Respondent's employees for 5 years or more, and it is more than difficult to believe that any one would be mislead by such language into believing that, somehow or other, contrary to both the Union's and the Employer's preelection propaganda, a collective-bar- gaining contract existed between the parties. This attack on the cards is without foundation. 10 The cards are so-called single purpose cards, clearly authorizing the Union to act as the signer's collective-bargaining representative 11 N L R.B. v. Economy Food Center, 333 F 2d 468, 471 (C.A. 7, 1964), N L R.B v. Somerset Shoe Co., 1 l 1 F 2d 681, 687 (C. A. 1); Howell Chevrolet, 807 Of the 59 card signers, 12 revoked their authorizations by signing letters, which found their way into the Union's files, requesting that their cards be returned to them promptly. I have found above that Respondent did not improperly assist the employees in revoking their authori- zations, and I reject, therefore, General Counsel's conten- tion that the revocations are invalid on that ground. General Counsel also argues that since only one of the withdrawal letters is dated Respondent has failed to establish that the purported withdrawals were executed and delivered prior to the demand date. Although only a few of the persons who signed such letters testified, I find sufficient probative evidence in the circumstances dis- closed in the record to compel the finding that each document was executed by the employee in the unit whose name it bears and delivered to the Union prior to the date on which Respondent received the Union's demand for bargaining. The names on the letters are the same as those on union cards and on the payrolls in evidence. Union Organizer Vanooyen testified that eight of the letters were handed to her by the employee who signed them, and she said she "imagined" that McGill, another organizer, received the others. A ninth signer of a withdrawal, Lois Taylor, identified her signature on the revocation. No one claims that the signatures on the letters are not authentic or that the signers were not employed by Respondent. Even if they did, the circumstances described would cause me to reject that contention. The withdrawals were signed before April 16 because Vanooyen testified that it was before April, probably in "February or March," that she received them. I also note that none of the 12 authorization cards signed by employees who also signed withdrawal letters contains a Board date-stamp on its back as do all the other cards presented to the Board as a showing of interest in support of the Union's petition for an election. The cards are date- stamped April 16. It is a fair inference from these facts that the Union had in its possessiun all 12 withdrawals before April 16 and did not present the cards to the Board for that reason. For the reasons stated, and particularly in the absence of any evidence to the contrary, I find that employees Simmons, Lemmon, Dellemar, Lois Taylor, Mildred Stanley, Blackshear, Wanda Taylor, Emily Harris, Flem- ming, Beatrice Taylor, Liza Pitts, and Nadine Moss executed and delivered revocations of their union authori- zation before Respondent received the Union's demand. Twelve revocations, plus two signers not on the appropri- ate payroll, reduces the valid cards to 47, not a majority, but Lois Taylor signed another authorization card on April 24, 1973. If her card and the cards of employees Jones, dated 4-14-73, Harris, dated 4-26-73, Davis, dated 5-8-73, and Lindsey, dated 5-8-73, are valid, on the theory that the Union's demand was a continuing one, then the Union had majority of designations prior to the middle of May. 204 F.2d 79, 85-86 (C.A 9), Don the Beachcomber, 163 NLRB 275. 12 N.L R B v. Gilmore Industries, Inc, 341 F.2d 240 (C.A 6, 1965); Olson Rug Company v. N L R.B., 260 F.2d 255, 267 (C A 7, 1958), Wilson Athletic Goods Mfg Co. v. N.L.R B, 164 F 2d 637,639-W (C.A. 7). 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When a demand for sole bargaining is or is not a "continuing" one, is not always clear from the cases.13 It seems to me that in a situation such as we have in this case a realistic legal appraisal of the position of the parties after the Union's demand for bargaining was refused and at the time they executed an agreement for a consent election is that the Union had temporarily suspended its request for immediate recognition in order to resolve the question quickly and peaceably within the framework of the Act. Implicit in the agreement, however, was a condition that neither party thereafter commit serious unfair labor practices undermining to the other and precluding the holding of a fair election. If an employer does act contrary to the purpose and design of the agreement by engaging in serious unfair labor practices, then it can be said with reason that the Union's original claim is revived and, in that sense, can be said to continue. No unfair labor practices were committed prior to the middle of May 1973, but after the agreement for consent election was approved on May 9, Respondent commenced to make threats that the plant would close if the Union won the election, and it also promised employees benefits if the Union did not. In those circumstances another demand for recognition would be futile, and because the condition on which the agreement was predicated failed, the Union's demand was legally reactivated. I find that Lois Taylor's card and the cards of the four other employees who signed after the Union's first demand for recognition and prior to the commencement of the employer's unfair labor practices may be counted in computing the total number of valid cards. This results in a total of 48 valid cards, and I find, on that basis, that the Union represented a majority of employees in the unit on May 8, 1973.14 4. The appropriateness of a bargaining order under the circumstances of this case In Gissel, supra, the Court sustained the Board's remedial authority to issue a bargaining order, in cases like this one, where an employer rejects a valid card majority and commits unfair labor practices "that interfere with the election process and tend to preclude the holding of a fair election." 15 The Court held that a bargaining order would be appropriate in either of two situations: first, in "exceptional" cases where there was no 8(a)(5) violation but the unfair labor practices were so "outrageous" and "pervasive" that "their coercive effects cannot be eliminat- ed by the application of traditional remedies," 16 and second, "in less extraordinary cases marked Ly less pervasive practices which nonetheless still have the 13 See Scobell Chemical Company, Inc v N.L R h, 267 F.2d 922 (C A. 2, 1959); Essex Wire Corporation, 188 NLRB 397, 412, Hardy-Herpolsheimer Division of Allied Stores of Michigan, Inc, 173 NLRB 1109, 1121-22. 14 Respondent placed into evidence authentic handwriting specimens of employees Blackshear and Hursey in order to establish that they had not actually signed the union authorizations in evidence. Although I have found that Blackshear revoked her card, which makes it unnecessary to meet this contention, the employees who testified about Blackshear's execution of a card appeared to me to be telling the truth as they remembered it, and, although Blackshear appears to have difficulty in signing her name, it is not clear enough to me, a nonexpert, that the signature on the union card is not hers. In Hursey's case, I have no question on all The signatures in the employer's files give me no reason to doubt the testimony of employee te,idency to undermine majority strength and impede the election processes." Respondent contends that no bargaining order should is',ue here because its election campaign was "mild" and was not one that could prevent a fair election. I have found, however, that Respondent made statements to many employees just prior to the election threatening to close the plant if the Union won the election, and it also promised them benefits if it did not.17 In his dissent in General Stencils, Inc.,18 Board Chairman Miller, in discuss- ing the remedy problem in cases where threats of reprisal had been made, stated that "a threat of loss of employment for some or all unit employees [is] of the gravest consequences. The threat of plant closing has long been recognized as a uniquely destructive tool." He added that "the threat of plant closure must be regarded, for Gissel purposes, as more coercive than any other threat, and more likely to have a lasting impact on an employee group." In my opinion, the Board would unanimously hold that the threats to close the plant in the instant case, with or without the promise of benefits, would have such an impact on employees that the "possibility of erasing" its effects 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...." 19 Accordingly, I will so recommend. 5. Unilateral change in conditions of employment On or about June 15, 1973, Respondent, unilaterally and without prior notice to, or consultation with, the Union, announced and granted to all eligible employees a 2-week paid vacation from June 29, 1973, through July 16, 1973. Since Respondent was under a duty to bargain with the Union as the statutory representative of employees in the unit at that time, Respondent's actions in this regard violated Section 8(a)(1) and (5) of the Act. IV. THE REPRESENTATION CASE Having found that Respondent engaged in serious violations of Section 8(a)(1) of the Act during the last 2 weeks in May 1973, by threatening employees with economic reprisals if the Union won the election and by promising them benefits if it did not, it follows that such conduct interfered with the employees' free choice of a collective-bargaining representative and that the results of the election must be set aside on the basis of the Union's objections. In view of my recommendation, hereinafter set forth, Collins, who obtained the authorization card from her. 15 395 U.S 575, 594 16 395 U.S. at 613-614. 17 In Ohn Conductors, 185 NLRB 467, relied on by Respondent, where the Board did not issue a bargaining order, there was no threat to close the plant is 195 NLRB 1109, 1113 19 395 U.S at 614-615. In N L R B v General Stencil Inc., 438 F.2d 894, 902, (C.A. 2, 1971), the court, in remanding the case to the Board for reconsideration of its order to bargain, stated that "widespread dissemina- tion of the threat of plant closure . . . would .. clearly support a bargaining order. . JIMMY-RICHARD CO. 809 that Respondent be required to recognize and bargain with the Union, I shall recommend that the petition in Case 10-RC-9582 be dismissed, and that all proceedings in connection therewith be vacated. Irving Air Chute, Inc., 149 NLRB 627. V. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent cease and desist from engaging in such unfair labor practices and from like or related unfair labor practices and to take certain affirmative actions which I find will effectuate the policies of the Act. I shall also recommend that Respondent bargain collectively, upon request, with the Union as the exclusive bargaining representative of the employees in the unit found appropriate herein, and to embody any understanding reached in a signed agreement. Upon the basis of the foregoing findings of fact and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 2. Take the following action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the unit found appropriate, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Hawkinsville, Georgia, place of business, copies of the attached notice marked "Appendix."21 Copies of said notice, on forms provided by the Regional Director for Region 10, shall , after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I FURTHER RECOMMEND that the election conducted in Case 10-RC-9582 on June 1, 1973, be set aside and that proceeding be vacated and the petition dismissed. 1. Respondent is an employer within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By threatening employees with plant closure if they selected the Union in a Board election, Respondent violated Section 8(a)(1) of the Act. 4. By promising employees additional benefits if they rejected the Union in the Board election, Respondent violated Section 8(a)(1) of the Act. 5. By refusing to recognize and bargain with the Union as the exclusive bargaining representative of employees in the appropriate unit, Respondent violated Section 8(a)(1) and (5) of the Act. 6. By unilaterally and without prior notice to, or consultation with, the Union, changing terms and condi- tions of employment, Respondent violated Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. Upon the foregoing findings of fact, conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: ORDER20 Respondent, Jimmy-Richard Co., Inc., its_ officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Threatening employees with plant closure if they designate the Union in a Board-conducted election. (b) Promising employees benefits if they reject the Union in a Board-conducted election. (c) Refusing to recognize and bargain with the Union as the exclusive representative of employees in the unit found appropriate herein. (d) In any like or related manner interfering with, restraining, or coercing its employees in their exercise of the rights guaranteed in Section 7 of the Act. 20 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. Si 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to close the plant if Amalgamated Clothing Workers of America, AFL- CIO, is selected by you to represent you. WE WILL NOT promise you benefits in order to get you to reject the above-named Union. WE WILL NOT in any like or related manner interfere with the exercise of the rights guaranteed you by the National Labor Relations Act. WE WILL NOT change our vacation practices or any other terms or conditions of your employment without first bargaining with the Union. WE WILL, upon request, bargain collectively with the Union as the bargaining representative of all employees in the bargaining unit described below with respect to wages, hours and other terms and conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All production and maintenance employees, excluding office clerical employees , professional employees, technical employees, guards and 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors as defined in the National Labor This is an official notice and must not be defaced by Relations Act. anyone. JIMMY-RICHARD Co. INC. This notice must remain posted for 60 consecutive days (Employer) from the date of posting and must not be altered, defaced, or covered by any other material. Dated By Any questions concerning this notice or compliance with (Representative) (Title) its provisions may be directed to the Board 's Office, Peachtree Building, Rm. 701, 730 Peachtree Street, N. E., Atlanta, Georgia 30308 , Telephone 404-526-5760.