Colony Knitwear Corp.

COLONY KNITWEAR CORPORATION 245 Colony Knitwear Corporation andLocal 107, Interna- tional Ladies' Garment Workers' Union, AFL-CIO and Local 918, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract. Cases 29-CA-3561 and 29-CA-3678 - April 2, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 28, 1974, Administrative Law Judge Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions to the Decision and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent they are consistent with the findings below. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(2) and (1) of the Act when, in the face of the Garment Workers claim for recognition, Respondent recognized and entered into a contract with Teamsters Local 918 within a few days after the Garment Workers made its demand.' How- ever, we also agree with the General Counsel and the Charging Party that Respondent directly assisted in the securing of cards on behalf of Local 918, through its agents and under circumstances clearly conveying to the employees that it was the desire of Kaplan, Respon- dent's president and chief managing official, that the employees should be represented by Local 918. In so finding, we agree with the General Counsel that Lead- man Steve Schlyfestone acted as an agent of Respon- dent in securing signed cards in support of Local 918. The record is clear that Kaplan is the primary and sole manager of the plant. However, the record is also clear that Kaplan, both during his presence in the plant and while away from the plant, conveys his directives to Schlyfestone, who in turn relays these directives to the employees of the leadman on the succeeding shift. The record also shows that Schlyfestone frequently uses employee Galvan as an interpreter to convey messages to those Spanish-speaking employees who have dif- ficulty with the English language. On September 6, 1973, Schlyfestone asked Galvan to sign a Local 918 I Midwest Piping & Supply Co., 63 NLRB 1060 (1945) card. Galvan signed such a card and then later Galvan, along with Schlyfestone, called employees Bogdanov and Quiroga into the Respondent's office and discussed with them the benefits that would result from represen- tation by Local 918, and had each of them sign a Local 918 card. Employee Imbert, the leadman on the night shift, was called into the office on September 7, and, in the presence of Kaplan, Schlyfestone gave Imbert a Local 918 card to sign. Imbert signed the card and at Schlyfestone's direction Imbert called employee Sierra into the office and had him sign a Local 918 card. From the above, it is clear that Schlyfestone was acting on behalf of Kaplan in securing Local 918 cards and that most if not all of the Local 918 cards were procured by coercion. Accordingly, we find that Respondent, acting through its agents, violated Section 8(a)(2) and (1) of the Act by coercively causing employees to sign mem- bership cards for Local 918. We also agree with the General Counsel and the Charging Party that Respondent violated the Act when it entered into its contract with Local 918 and enforced the union-security clause therein. Local 918, as noted above, did not at the time have an uncoerced majority when it executed the contract with Respondent. Ac- cordingly, we find that by entering into the contract with Local 918 and enforcing the union-security clause therein, the Respondent violated Section 8(a)(3) of the Act.' In such circumstances, we further agree with the General Counsel that Respondent's employees are entitled to reimbursement from Respondent of all dues and initiation fees collected pursuant to the unlawful solicitation of membership in Local 918, and the en- forcement of the unlawful union-security clause, and will so order.3 CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2 (6) of the Act. 2 Raymond Buick, Inc, 173 NLRB 1292, 1308 (1968); Hi Temp Inc., 203 NLRB 753 (1973). 3 In view of the nature of the violations found herein, we agree with the Administrative Law Judge's conclusion that under the unusual circum- stances of this case the facts do not warrant the issuance of a bargaining order As a consequence, the question of whether or not the Garment Workers achieved majority status is not before us and we find it unnecessary to pass on the Administrative Law Judge's conclusions with respect to the validity of the authorization cards of employees Niccolini and Quiroga. In addition, with regard to the Administrative Law Judge's recommendation that the Niccolini and Quiroga matter be referred to the appropriate govern- mental agencies, we have been administratively advised by the General Counsel that shortly after the Administrative Law Judge issued his Decision herein the matter was referred to the Social Security Administration for consideration by that agency. In our opinion, no further action is necessary or appropriate and we will consequently not act on the Administrative Law Judge's recommendation in this matter. Our colleague correctly points out that the evaluation of Quiroga's and Niccohm's cards presents difficulties, and it is for this reason that we note that we do not unnecessarily undertake the task here. 217 NLRB No. 38 246 DECISIONS OE NATIONAL LABOR RELATIONS BOARD 2. The Unions are labor organizations `within the meaning of Section 2(5) of the Act. 3. By granting recognition to Local 918 as exclusive bargaining agent at a time when the Garment Workers had made a claim for representation based on a claim of majority' status among Respondent's employees, Re- spondent violated Section 8(a)(2) and (1) of the Act. 4. By coercively causing Respondent's employees to sign membership cards on behalf of Local 918, Re- spondent violated Section 8(a)(1) and (2) of the Act. 5. By entering into, maintaining , and enforcing a collective-bargaining agreement containing a union- security clause when Local 918 did not represent an uncoerced majority of the employees in an appropriate unit, Respondent violated Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found and concluded that Respondent rend- ered unlawful assistance and support to Teamsters Lo- cal 918 thereby interfering with, restraining, and coerc- ing its employees in the exercise of rights guaranteed them by Section 7 of the Act, we shall order that Re- spondent cease and desist therefrom. Affirmatively, we shall order that Respondent withdraw and withhold any recognition it had granted the aforesaid Teamsters Local 918, including revocation of its collective-bar- gaining agreement with said Union, unless and until Teamsters Local 918 is certified as majority representa- tive of Respondent's employees, pursuant to a Board- conducted election in the unit found appropriate herein, for purposes of collective bargaining. We shall also order the Respondent to cease and desist from coercively inducing its employees to sign membership cards for Local 918 and we shall order Respondent to reimburse all those employees of Respondent who joined or began paying dues to Local 918 as a result of the coercion in forcing them to join Local 918 and those employees who joined or began paying dues to Local 918 as a result of the unlawful union-security clause for all moneys paid by them or deducted from their earn- ings for initiation fees, dues, assessments, or other obli- gations of membership in Local 918 computed on the basis as prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), together with interest at the rate of 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). We shall also order Respondent to post customary notices to em- ployees. In addition, although there has been no petition for an election among the employees in the appropriate unit, we shall order that in any election that may here- after be petitioned for the Regional Director shall ac- cept as a proper-showing of interest those membership cards submitted herein by the Garment Workers in support of its claim of representation status. At the same time, and in the event Local 918 desires to partici- pate in any election that might be directed herein, be- cause of the taint on the membership cards of Local 918 due to Respondent's unlawful conduct, the Regional Director shall not accept any showing-of-interest cards on behalf of Local 918 unless said cards are signed and dated at a time following Respondent's having fully complied with the posting requirements of our Order herein. ORDER4 Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Colony Knit- wear Corporation, Farmingdale, Long Island, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively causing its employees to,sign member- ship cards on behalf of Local 918, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (b) Rendering aid, assistance, or support to Team- sters Local 918, or any other Labor organization, by recognizing it or bargaining with it as a representative of Respondent's employees, unless or until it is certified by the National Labor Relations Board as such repre- sentative in the unit found appropriate herein. -(c) Entering into, maintaining, and enforcing a col- lective-bargaining agreement containing a union- security clause when the labor organization does not represent a majority of its employees in an appropriate unit. (d) In any like or related manner interfering with, restraining, or coercing its, employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which we find will effectuate the policies of the Act: (a) Withdraw and withhold recognition of Local 918 as the bargaining representative of its employees in the aforesaid appropriate unit, and revoke its collective- bargaining agreement with said Union. (b) Rehaburse employees in the aforesaid appropri- ate unit who were coerced into joining said Union or 4 Nothing in this Order shall require Respondent to vary or abandon any wage, hours, seniority, or other substantive feature on behalf of its em- ployees which Respondent has established while bargaining with the afore- said labor organization , or prejudice the assertion by its employees of any rights they may have derived as a result of membership in or representation by said labor organization COLONY KNITWEAR CORPORATION who became members of said Union or paid it any money in accordance with the collective-bargaining contract with Local 918, for all moneys paid by them or deducted from their earnings for initiation fees, dues, assessments, or other obligations of membership in said Union, together with interest at the rate of 6 percent per annum. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, timecards, personnel records and re- ports, and all other records necessary to determine the moneys due under the terms of this Decision. (d) Post at its Farmingdale, Long Island, New York, plant, copies of the attached notice marked "Appendix. ,5 Copies of said notice, on forms pro- vided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS ALSO ORDERED that in the event the Charging Party desires to file a petition for an election in the appropriate unit the Regional Director for Region 29 shall accept as a proper showing of interest those mem- bership cards submitted herein by the Garment Work- ers Union in support of its claim of representation status.6 IT IS FURTHER ORDERED that in the event the Charging Party does file a petition for an election in the appropri- ate unit herein and Teamsters Local 918 desires to appear on the ballot the Regional Director for Region 29 shall not accept any showing-of-interest cards on behalf of Local 918, unless said cards are signed and dated at a time following Respondent's having fully complied with the posting requirements of our Order herein. 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board:' 6 As noted in fn. 3, supra, we found it unnecessary to pass on the Adminis- trative Law Judge's conclusions with regard to the showing-of-interest cards of Niccolim and Quiroga, and, in view of the fact that the Charging Party's remaining cards are sufficient to support a showing of interest to support an election, we again find it unnecessary to pass on these cards at this time 247 MEMBER KENNEDY, concurring: I do not agree with my colleagues' observation in footnote 3 that it is unnecessary to pass upon the con- clusions of the Administrative Law Judge for rejecting the authorization cards of Quiroga and Niccolini. The Administrative Law Judge correctly observed: I am hard pressed to understand the logic of accepting the word-and the union designations-of a man whose basic purpose un- derlying the whole manipulation was admittedly an attempt to defraud the Government by filing a false unemployment insurance claim. I am ,not persuaded that the fact that the claim was not actually filed serves in any way to purify his initial motives. It is arguable that this man did sign this card, be it by an "X" or by someone else's name, because he did want this representative. But it ill behooves public officials, myself included, to underwrite this basic dishonesty inherent in the purposeful misuse of names, or to tolerate resort to such handiwork in the furtherance of the Board's pro- cesses, as is urged here. On the contrary, it would seem to be our duty to protect these processes from such abuse. The two cards before us consti- tute the evidence by which we are asked to believe that Quiroga selected two different unions to represent him in as many days. Because I deem his admitted scheme of procuring unemployment in- surance while gainfully employed to be the very genesis of the cards, I refuse to become a party to this deceit. I accordingly reaffirm my ruling to reject the cards of Quiroga for all purposes. What applies to Quiroga who admittedly con- trived the scheme which Niccolini thereafter obligingly adopted also applies to Niccolini him- self. And for these obviously related reasons I re- ject his authorization cards for all purposes as well. In my view, this Board should adopt the Administra- tive Law Judge's conclusions. In my view, such cards should not be counted in this or future cases. Accord- ingly, I agree with the Administrative Law Judge's rejection of those cards and his fmding that the Union lacked majority status. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government collective-bargaining agreement with Teamsters Local 918, for all moneys paid by them or de- ducted-from their earnings for initiation fees, dues, assessments, or other obligations of membership in said Union, together with interest at the rate of 6 percent per annum. COLONY KNITWEAR CORPORATION The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT coercively cause our employees to sign membership cards on behalf of Local 918, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. WE WILL NOT recognize or deal with Teamsters Local 918, as the representative of our employees unless and until it has been certified as the exclu- sive representative of our employees in the appro- priate unit by the National Labor Relations Board. The appropriate unit consists of: All full-time and regular part-time employees at our Farmingdale plant, exclusive of all clerical employees, guards and all supervisors as defined in the Act. WE WILL 9OT enter into, maintain, or enforce a collective-bargaining agreement containing a union-security clause when the labor organization does not represent a majority of our employees in the appropriate bargaining unit. WE WILL NOT vary -or abandon any wage, hours, seniority, or other substantive features established in behalf of our employees while bargaining with Teamsters Local 918, nor will we deny our em- ployees any right derived as a result of their mem- bership in or representation by said labor organi- zation. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL withdraw and withhold recognition of Teamsters Local 918 as the bargaining representa- tive and revoke our collective-bargaining agree- ment with said Union. WE WILL reimburse our employees in the appro- priate unit who were coerced into joining said Union or who became members of said Union or paid said Union any money in accordance with the DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Administrative Law Judge: Upon charges filed on January 7, 1974, in Case 29-CA-3678 and on September 24, 1973, in Case 29-CA-3561 with- an amendement thereto filed on December 19, 1973, by Local 107, International Ladies' Garment Workers' Union, AFL-CIO, herein referred to as the Garment Workers, against Colony Knitwear Corporation, Respondent herein, the Regional Director for Region 29 of the National Labor Relations Board, hereincalled the Board, issued complaints against the Respondent on December 19, 1973, and February 28, 1974, on behalf of the General Counsel of the Board, alleging violations of Section 8(a)(1), (2), (3) and (5) of the National Labor Relations Act, as amended (29 USC § 151, et seq.), herein called the Act. In its duly filed answers the Respondent, while admitting certain allegations of the com- plaints, denied the commission of any unfair labor practice. By order of March 6, 1974, the Regional Director con- solidated the complaints herein. Pursuant to notice a hearing was held before me in Brook- lyn, New York, at which all parties were present, represented, and afforded full opportunity to call , examine, and cross- examine witnesses, present oral argument, and file briefs. Briefs were filed by counsel for the General Counsel, Re- spondent, and the Garment Workers on May 29, 1974. Upon consideration of the entire record, including the briefs filed with me, and the several documents introduced into the re- cord, and upon my observation of the witnesses appearing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE NATURE OF THE RESPONDENT'S BUSINESS Colony Knitwear Corporation, Respondent herein, is a New York corporation maintaining its plant and principal office in Farmingdale, Long Island, New York, where it is engaged in the manufacture and distribution of knitted fab- rics and related products. During the year preceding the date of the trial herein the Respondent, in the course and conduct of its business operations, caused to be manufactured and distributed at its plant knitted fabrics valued in excess of $50,000, of which products valued in excess of $50,000 were furnished to firms located in New York State which did business in excess of $50;000 with customers located outside the State of New York. Upon the foregoing facts stipulated by the parties I con- clude and find the Respondent to be an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. COLONY KNITWEAR CORPORATION 249 II THE LABOR ORGANIZATIONS INVOLVED It is stipulated by the parties that Local 107, International Ladies' Garment Workers' Union, AFL-CIO, and Local 918, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organiza- tions within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Sequence of Events Impelled by the efforts of Employees Jaime Perez a number of Respondent's employees, all knitters, signed cards in late August and early September 1973 authorizing the Garment Workers to represent them in collective-bargaining negotia- tions with the Respondent. To this end Organizer Gaspar Sciacca, accompanied by Business Agent John DiGirolamo, visited Respondent's plant on the morning of September 6, 1973, and met with Respondent's president, Robert A. Ka- plan. After appropriate introductions, Sciacca informed Ka- plan that the Garment Workers represented a majority of his employees and was ready to sit down and negotiate a con- tract. When Kaplan expressed surprise and his lack of knowl- edge in union matters Sciacca suggested that he might want to contact his lawyer. On this note the Garment Workers representatives left the plant, Sciacca stating that they would be in touch and leaving his card. There is dispute in the record as to whether on this visit Sciacca mentioned possessing signed authorization cards and having them checked by a disinterested third party. Any confusion on this point is dispelled by the telegram admit- tedly sent Respondent by the Garment Workers and recieved on the following day (September 7), wherein the demand for recognition and bargaining was confirmed and the Union stated that "we are prepared to prove our majority status." Immediately following the Garment Workers visit Presi- dent Kaplan called his father-in-law and partner, a Mr. Karol, and told him he -had had a visit from two union representatives. Karol asked Kaplan if they had shown him anything or asked for anything and Kaplan replied that they had not. Karol closed the conversation by stating, "Okay, leave it to me." On the following evening, September 7, Sciacca of the Garment Workers learned that some of the employees had signed papers "with the horse on it," referring to Teamsters' authorization cards bearing the printed seal of the International organization. This, of course, comports with the testimony of President Kaplan who testified to a visit from John Barresi, a representative of Local 918 of the Team- sters, sometime shortly before September 13.1 Barresi told Kaplan that the Teamsters represented Respondent's em- ployees and showed to Kaplan a group of authorization cards signed by them. Kaplan took the cards proffered to him by Barresi and checked the signatures against cancelled pay- checks. Kaplan then called his partner, Karol, and, told him that a representative of the Teamsters was in his office and had presented him with cards. Karol announced that he would come to Respondent's office immediately. When he 1 This date has not been definitely established but it had to occur prior to September 13, the date on which Sciacca returned to the plant and learned of the Teamsters visit. Theretofore, apparently, he had learned only that the employees had signed Teamster cards arrived he checked over the cards himself and asked and received Kaplan's assurance that they were "correct and au- thentic." On the basis of this inspection, according to Kaplan, "we agreed at that time to recognize this Union." Whereupon Barresi presented Kapland and Karol with a typed memoran- dum of agreement. The three of them discussed the memo- randum's contents in some detail and made corrections and additions but did not sign it until September 21. Meanwhile on September 13, Sciacca and DiGirolamo of the Garment Workers paid a second visit to Respondent's plant seeking to follow up their, earlier request for recogni- tion, "to find out if Kaplan had decided on sitting down with the Union." Upon meeting Kaplan he told the Garment Workers representatives that he had "signed a letter recogniz- ing the Teamsters." Whereupon, after a few salty words, Sciacca and DiGirolamo left, stating, "You will be hearing from us." Thereafter, on September 25, 1973, Respondent, Karol signing, executed a contract with the Teamsters which in- cluded among its terms a provision for the checkoff and remittance of union dues and initiation fees and a union shop, provision requiring continued membership in the Teamsters of Respondent's employees following their hire or the execu- tion of the contract, whichever would be applicable. The union-security and checkoff provisions of the contract have been enforced throughout the term of the contract, to and through the date of the hearing herein, excepting only that upon receipt of the complaint in this matter Respondent notified the Teamsters that it no longer would remit moneys under the terms of the contract but would make the required collections and retain the moneys in an escrow account. Subsequent to the events detailed above Employee Jaime Perez, the prime mover in the Garment Workers organizing campaign, for which he received $300 in compensation, and thereafter the designated shop steward of the Teamsters for which he accepted a $10 payment, was laid off and was thereafter refused reinstatement. This occurred under cir- cumstances which the General Counsel considers discrimina- tory and of such an aggravated nature as to justify the issu- ance of a bargaining order on behalf of the Garment Workers against the Respondent. For reasons which I shall set forth in detail hereafter, I have found that Perez was discharged for cause. B. Credibility Evaluation The major conclusions in this case will hinge directly upon credibility determinations relating to the testimony of a num- ber of witnesses appearing before me and upon the weight that I place upon certain of the documents introduced into evidence. In an effort to establish the majority representative status of the Garment Workers as of September 6, 1973, the date upon which Gaspar Sciacca made his recognition demand in its behalf, counsel for the General Counsel offered in evidence two signed authorization cards of questionable authenticity. These were identified in the record as General Counsel's Exhibits 2(f) and (g), being the Garment Workers authoriza- tion cards of Armando Quiroga and Miguel Angel Niccolini, respectively. Thereafter, in support of the allegation that Re- spondent unlawfully assisted the Teamsters counsel intro- 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duced Teamsters authorization cards signed by the same in- dividuals. These were identified as General Counsel's Exhibits 3(f) and (g)_ The complicating factor concerning each of these cards is that the names and signatures on each card are interchanged even as they were interchanged on Respondent's payroll. Thus Quiroga was known as, identified himself as, and signed his authorization card as Miguel Angel Niccolini; and Niccolini did likewise under the name of Ar- mando Quiroga. When asked at the trial for explanation of this unusual behavior Quiroga testified that when or immedi- ately before he signed the Garment Workers authorization card the was also working for another employer, Robert Todd,' and expected a layoff there. Hoping to collect unem- ployment insurance _for this layoffwhile working at his new job with Respondent, Quiroga used Niccolim's social security number and.signed his name. It appears, as things turned out, that he did not collect the unemployment insurance because his Richard Todd job resumed or continued, and for a period he held two jobs. Next, Niccolini's Garment Workers card dated September 10, and signed with the name Armando Quiroga, bears Nic- colini's correct address but the incorrect age and, of course, the wrong name. Niccolini explains that, knowing of his fel- low worker Quiroga's unemployment insurance ploy at Todd, he indulged in this manipulation to accommodate him, and when he came to Respondent's plant where Quiroga was already at work under Niccolini' s name, Niccolini main- tained the fiction and continued to use Quiroga's name. The two of them continued the misrepresentation when they thereafter signed Teamster authorization cards. In the course of Niccolini's testimony the pretrial affidavits signed and sworn to by him were referred to and eventually admitted into evidence. His first affidavit, given to a Board agent on October 19, 1973, was signed with the name Ar- mando Quiroga and appears in the record as ALJ Exhibit 1. The second affidavit was given to the same Board agent on November 8, 1973, and it too bears the signature of Armando Quiroga. It appears in the record as ALJ Exhibit 2. Nic- colini's third affidavit, which bears his true name and signa- ture, was given to counsel for General Counsel on April 4, 1974. This contained Niccolini's admission of his earlier misuse of Quiroga's name and signature on the four cards and two previous sworn statements and provides an explanation of the reasons for doing so, as I have set it forth above. In summary total, therefore, it appears that that we are con- fronted with six misrepresentations: four as to authorization cards and two as to sworn affidavits. At the trial, during the course of Niccolini's explanation, I entered the following findings upon the record: My decision will show by footnote or otherwise that I do not rely and will not rely on the testimony of this witness in any form nor will I consider his card for any purposes of tabulation of majority status. When asked by counsel for the Teamsters if this finding would reach to Mr. Quiroga also, I replied, "Yes, it does." I now reaffirm these rulings as to the cards and the testimony of Niccolini and Quiroga. 2 Quiroga signed his card on September 5 He testified he commenced work with Respondent at the end of August or the beginning of September I am mindful, of course, of the holding of the United States Court of Appeals for the Second Circuit in N.L.R.B. v. Uni- versal Camera Corporation,3 wherein it was held that it is not uncommon "to believe some and not all" of a witness' testimony. I am equally mindful of the vigorous argument presented me by both counsel for the General Counsel and for the Garment Workers in their respective briefs, urging that I reconsider the credibility resolution which I made at the trial, and that I give credence to the witness' testimony as to the cards, and accept the-cards themselves. Thus it is urged that the individual employee, by his own admission, signified his intent to be represented by means of the card he submit- ted, regardless of the name he used, and so "it is the man, not the name which should be the controlling factor." Addition- ally, it is urged by counsel for the Garment Workers, refer- ring to an evidentiary conflict between Quiroga's testimony and a statement in one of his affidavits, as follows: The Judge should conclude that Quiroga made an honest mistake in his affidavit which is corrected on the stand. A close reading of Quiroga's affidavit will show that that was the only statement (the disputed inconsist- ent one) which was inconsistent with his testimony. Quuiroga admitted that he worked under Niccolini's name because he planned to collect unemployment in- surance benefits from his former job at the time he worked for Colony. He never collected those benefits, however, according to both his testimony and his affida- vit. That fact is not disputed. Except for working under Niccolini' s name, Quiroga did nothing improper or unlawful. In light of the facts and arguments adduced here, his testimony should be credited and his card counted towards the Captional ILGUW proof of majority. I am hard pressed to understand the logic of accepting the work-and the union designations-of a man whose basic purpose underlying the whole manipulation was admittedly an attempt to defraud the government by filing a false unem- ployment insurance claim. I am not persuaded that the fact that the claim was not actually filed serves in any way to purify his initial motives. It is arguable that this man did sign this card, be it by an "X"' or by someone else's name, because he did want this representative.-But it ill behooves public officials, myself in- cluded, to underwrite this basic dishonesty inherent in the purposeful misuse of names, or to tolerate resort to such handiwork in the furtherance of the Board' s processes, as is urged here. On the contrary, it would seem to be our duty to protect these processes from such abuse. The two cards before us constitute the evidence by which we are asked to believe that Quiroga selected two different unions to represent hire in as many days. Because I deem his admitted scheme of procuring unemployment insurance while gainfully em- ployed to be the very genesis of the cards, I refuse to become a party to this deceit. I accordingly reaffirm my ruling to reject the cards of Quiroga for all purposes. 3 179 F 2d 749, 754. COLONY KNITWEAR CORPORATION What applies to Quiroga who admittedly contrived the scheme which Niccolini thereafter obligingly adopted also applies to Niccolini himself. And for these obviously related reasons I reject his authorization cards for all purposes as well. Finally we come to Niccolini's affidavits. I am not per- suaded that simply because Niccolini, in his April 10 affidavit taken by counsel for the General Counsel, made full breast of his misrepresentations on the cards and on his two sworn affidavits signed as "Armando Quiroga," he thereby ex- onerated himself. Nor am I persuaded that simply by swear- ing in his third and properly signed affidavit that the facts supplied in his two falsely signed affidavits are true he is thereby fortified in truth and worthy of belief. On the con- trary, Niccolini's willingness to sign the first two affidavits as he did underscores, in my judgment, a propensity to trifle with the truth which he first manifested when he accom- modated Quiroga's efforts to fraudulently obtain social- security payments. It is on the basis of the foregoing, in addition to my observation of both Quiroga and Niccolim on the witness stand, that I have reaffirmed my conclusion not to credit the testimony of either, nor to accept their improp- erly signed authorization cards, nor their testimonial expla- nations of why they did it, as evidence of their intent to authorize their representation by either of the unions whose cards they signed. Employee Jaime Perez presents a further credibility prob- lem that is determinative of the issues involved herein. A study of Perez' testimony discloses numerous contradic- tions with his own previous testimony and the testimony of other witnesses called by the General Counsel. Illustrative of this is his testimony that during a 3-week period an employee alleged to be a supervisor, Steve Schlyfestone, ate lunch in the office with the secretary "most of the time." Upon cross- examination Perez, hesitantly and obviously agitated, admit- ted that this occurred "about three times that I remember," and finally stated "I don't remember how many times."4 Garment Workers Representative Sciacca testified that he obtained copies of Teamsters authorization cards signed by Respondent's employees from Jaime Perez, who had told him he had taken these cards from a desk in Respondent's office to bring to him. I credit this testimony. Perez, on the other hand, testified that he never went into the office and took anything, that he' never came into possession of Teamster cards, and that he never gave Teamster cards to Sciacca. Additionally, Perez testified that he never talked to other witnesses about the case during the course of the trial, all witnesses excepting Perez, an alleged discriminatee, having been excluded from the hearing room pursuant to a ruling sequestering witnesses. Upon cross-examination Perez admit- ted that'he had discussed items of testimony with these peo- ple. For all of the foregoing, being illustrative of what I con- sider a relaxed approach to matters of truth and falsity, and upon my observation of Perez' demeanor as he testified, and 4 Counsel for the General Counsel's brief, at p. 5, states the following "While the knitters have no lunch period and have to eat at their machines while working, Schlyfestone often eats in the office with the secretary." In the light of Perez' own confused testimony, including his failure to recall more than three such occasions, I must rejeci counsel's statement to me as unsupported. 251 as he sat in the hearing room throughout the trial, I find him to be an unreliable witness and will credit his testimony only as it is corroborated by credible witnesses or constitutes an admission against interest. In addition to my determination of the credibility of the foregoing three witnesses I am persuaded that other witnesses appearing in behalf of General Counsel took an equally am- bivalent approach to the truth. These I shall comment upon as they significantly relate to findings that I make. With respect to such testimony as well as to my findings relating to Perez, Niccolini alias Quiroga, and Quiroga alias Nic- colini, I have, as already noted, relied upon the demeanor of the respective witnesses and have made my findings accord- ingly. And, apart from considerations of demeanor I have taken into account, as illustrated herein, inconsistencies and conflicts evidence. My failure to detail each of these is not to be deemed a failure on my part to have, fully considered it., C. The Unit Appropriate for Bargaining In his brief to me counsel for the General Counsel reasserts the allegation of the complaint that the unit appropriate for the purposes of collective bargaining is all full-time and regu- lar part-time employees of Respondent at its Farmingdale plant, exclusive of all clerical employees, guards, and all supervisors as defined in the Act. In the absence of argument and evidence to the contrary, I conclude and find the unit to be appropriate as alleged. 1. Composition of the unit The parties appear to be in general accord as to the compo- sition of the unit. Thus there is no dispute that Carol Altoltz, listed on Respondent's payroll as secretary, would be prop- erly excluded, and that Jose Aguilar, Jose Fuentes, and David Christ, all Sunday workers employed as of September 6, be properly included as regular part-time employees. It is con- tended, however, that Employees Steve Schlyfestone, the leadman on the 8 a.m. to 4 p.m. shift, possesses supervisory authority and should be excluded from the unit for that rea- son and Respondent be charged with responsibility for con- duct attributed to him as its agent. 2. Supervisory status Respondent operates 16 knitting machines on 3 shifts: 8 to 4, 4 to midnight, midnight to 8. Four employees are assigned to each of these shifts and included in each group of four is a leadman. On the day shift this is employee Steve Schlyfe- stone; during the significant periods herein the leadman on the evening shift was employee Eber Rodrigues, who upon his quitting was replaced by employee Buitargo; and on the mid- night shift it was employee Luis Imbert. Each of these em- ployees punched timecards. As to September 6, their rates of pay differed. Rodrigues and Schlyfestone received $4.50 per hour and Imbert $4 per hour. Rodrigues terminated his em- ployment shortly thereafter, Schlyfestone received a 25-cent raise under the Teamsters contract. The record is silent as to 5 Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161 (1966). 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Imbert's current wages. All three leadmen, including Schlyfe- stone, run their own machines in addition to performing other duties on their respective shifts.' While the operation of the machines was in great measure automatic there was frequent need for repairs, and when a new fabric was run changes were made in the yarns being used. It is generally agreed that Schlyfestone was responsible for machine repair on his shift, as was Rodrigues on his.' There is no testimony concerning Imbert's fixing the machinery. None of the leadmen admit to giving orders except as to the routine operational ones involving the changing of yarn; and this change emanates from President Kaplan. But what did occur was that the leadman on each shift received neces- sary instructions for the running of the machines and the operations of the shift and the yarns to be used from the leadman on the previous shift. This system of relays began, of course, with President Kaplan who was present on the day shift and who gave the necessary instruction to Schlyfestone to carry out and to pass on in turn to the leadmen of the following shifts.' Each of the three, Schlyfestone, Imbert, and Rodrigues, in fact considered themselves in charge of their respective shifts and testified to having been so advised by Kaplan. None of them, however, conveyed any orders excepting the routine ones referred to above which involved the running and changing of yarns or the relaying of such other instructions to employees as directed by Kaplan. In this respect it is particularly significant that many of the em- ployees called as witnesses by the General Counsel testified that they were not given orders by Schlyfestone, or the other leadmen, but only by Kaplan.' Quite apart from the findings I- have made to this point concerning leadman, the essence of the problem is the alleged peculiar position of Steve Schlyfestone whom General Coun- sel and the Garment Workers claim to possess supervisory authority, as an adjunct to their legal theory that Respondent, through Schlyfestone, indulged in conduct alleged to be viola- tive of the Act. Significantly, no claim is made that the leadman on either the evening or midnight shift should be excluded from the bargaining unit-only Schlyfestone. It remains to be deter- mined, therefore, how Steve Schlyfestone's duties differ, if they do, from those of the other two. Upon the credited testimony of President Kaplan it is evi- dent that Schlyfestone has no authority to either hire or fire. Thus the only instance alleged to have been a hiring-Montoya-is one where Schlyfestone was introduced to a potentially good knitter, told Kaplan about him over the telephone at the time of the introduction, and put him to work for the two remaining hours of the shift, at Kaplan's direction. On the following morning Kaplan hired the man.10 Nowhere does it appear in the record that Schlyfe- 6 The credited testimony of Employee David Galvan and President Ka- plan. 7 The credited testimony of employees Ruben Bogdanov and Rodrigues. 8 The testimony of President Kaplan and employees Schlyfestone, Ro- drigues, Imbert, and Sierra 9 Employees David Galvan, Ignazio, Montoya, and Ricardo Romero 10 1 do not credit Montoya's testimony that he was not hired by Kaplan. Furthermore, the best testimony this witness could otherwise supply on Schlyfestone's status is that "he thought" he was in charge. And even when he did go to Schlyfestone following his hiring for the usual directions on the stone, or any other leadman, was responsible for the dis- charge of an employee." What the leadmen did do, how- ever, according to Employee Rodrigues' evaluation of his own responsibilities, was to point out to Kaplan, at his re- quest, the workers who were doing the work correctly and those who were not. Thus he stated that, "if I watched, took care of the second shift, it would be logical to communicate to him who was a good worker and who wasn't." And he did so. Specifically in support of his claim respecting Schlyfes- tone's status counsel for the General Counsel set forth a number, of factors. A consideration of these follows: That employees had been told by Kaplan that Schlyfestone was "in charge" is based upon testimony to that effect by Perez. As I do not credit Perez, I reject such conclusions as are based thereon. Reliance upon employee Rodrigues' testimony that Schlyfestone told him he had practically all of the responsibil- ity inside the factory appears from a study of the record to be an exaggeration and taken out of context. Thus when Rodrigues was asked whether Kaplan (not Schlyfestone) had told him that Schlyfestone was in charge of the first shift all the time or only when Kaplan was absent, his reply was "No I think Steve was in charge all the time on the first shift, like I was on the second shift, like Imbert on the third." Employees Montoya and Perez are relied upon for the conclusion that Schlyfestone walks around the shop and checks work and machines every day on the day shift. Aside from the fact that Schlyfestone is charged with fixing ma- chines and should be checking them, Montoya testified exten- sively that Kaplan never checked anything in the shop, never assigned work, and in fact did nothing. Thus he would imply that Schlyfestone does this in his place. But the testimony of the bulk of General Counsel's witnesses is to the contrary, and to the effect that Kaplan is very much in evidence about the plant during the day shift and that he gives them orders. In any event I accept the credited testimony of Kaplan that he is in full charge of the operation and acts accordingly.- I do not rely upon Perez' testimony, nor, in this respect, Mon- toya's. As to the giving of instructions relating to what jobs to run, what color and style of yarn to use on the machines, when to change yarn, and other instructions given by Schlyfestone, General Counsel's claim that he gives these on his own or regularly relays them as orders from Kaplan appears to over- look the fact that the leadman on the other shifts do exactly the same, by their own testimony and that of other witnesses called by General Counsel. There are countless other duties and activities attributed to Schlyfestone which have been categorized by counsel for the General Counsel as evidence of his superivsory position and agency. These are clearly the variety considered by the Board as the duties of a leadman-the passing out of materials, shutting down and starting machines, ordering supplies on a regular basis in small quantity, with overall management changing of yarn, for example, he noted that Schlyfestone always consulted Kaplan. 11 The testimony of President Kaplan and employees Schlyfestone and Rodrigues is to the contrary COLONY KNITWEAR CORPORATION approval,12 relaying requests for time off, on direction, relaying instruction of the boss in his absence, and,acting as a conduit for operational problems of individual employees. None of these, either individually or in bulk, impress me as the mark of a supervisor, and I find no authority to support a conclusion that the}-have been considered such elsewhere. Two elements of testimony give rise to the need for more consideration of this issue than the foregoing. One is Schlyfe- stone's position when Kaplan is on vacation, and the other is his alleged close association with Kaplan. With respect to the latter consideration we have no way of knowing how closely Kaplan would have associated with either Rodrigues or Imbert if Kaplan's hours of work coin- cided with either of these leadmen's hours. Moreover, quite apart from Kaplan's and Schlyfestone's credible denial of close affinity, the record is clear that Schlyfestone has the greatest seniority of all the employees, having started when the plant opened, and that he initially obtained his job as a result of some undescribed referral to Karol, one of the part- ners of the business. In any event, I know of no case that stands for the proposition that seniority or the manner of hiring is determinative either of agency or supervisory au- thority. As to the claim that Schlyfestone is "in charge" when Kaplan is on vacation the credited testimony of Schlyfestone is clear. Kaplan took a week of vacation in January 1972, and 3 days in Christmas week 1973, for a total of 8 days. In the latter period Schlyfestone was in charge of his shift, Galvan was in charge of the second shift, Rodrigues having left Re- spondent's employ, and Imbert was in charge of the third shift. Schlyfestone was, in fact, in charge of the plant opera tion during this 3-day period, and explained it thus: "I was told that before he left. By Mr. Kaplan." No payroll checks were issued during either of Kaplan' s absence and Schlyfe- stone had no knowledge of other checks being issued by anyone. It defies logic and commonsense to expect that someone would not be in charge of a going operation in the absence of a supervisor. But to conclude as an absolute, however, that such a substitute automatically becomes a supervisor would appear to stretch beyond its outer limit the doctrine of the regular exercise of right to control set forth by the United States Court of Appeals for the Sixth Circuit in Ohio Power Company v. N.L.R.B., 176 F.2d 385. Such appears to have been the view of the Supreme Court when, in Marine Engi- neers Beneficial Association v. Interlake Steamship Co., 370 U.S. 174 at 179, fn. 6, it cited with approval the following quotation from a decision of the First Circuit: ... the gradations of authority "responsible to direct" the work of others from that of general manager or other top executives to "straw boss" are so infinite and subtle that of necessity a large measure of informed discretion is involved in the exercise by Board of its primary func- tion to determine those who as a practical matter fall within the statutory definition of "supervisor." N.L.R.B. v. Swift & Co. [d1b/a New England Processing Unit], 292 12 It would seem that the fact that Schlyfestone is the leadman on the day shift and is available for the regular visit of the supply salesmen, while the two on the late shifts are not, would make his handling of this detail an obvious assignment not necessarily attached supervisory status. 253 F.2d 561, 563 [1961]. I accordingly conclude and find that Schlyfestone, by his assigned duties during the 8 days of Kaplan's absence over a period of over 2 years, does not "as a practical matter fall within the statutory definition of `supervisor."' - With respect to the sum total of all of Schlyfestone's duties as considered herein I conclude and find that he is neither an agent of Respondent nor a supervisor within the meaning of the Act. By the same token I conclude and find that neither of the remaining two shift leadmen are supervisors. Accord- ingly, I would further conclude and find that ajf three lead- men, including Schlyfestone, be included as employees in the unit appropriate for collective bargaining. D. The Alleged Discrimination, Interference, Restraint, and Coercion 1. The warning of Perez It is alleged in the complaint that on or about December 10, 1973, Respondent, by President Kaplan, warned and di- rected its employees not to discuss the Union during their time in the plant. In support of this allegation counsel for the General Counsel adduced testimony from Employee Jaime Perez that President Kaplan called him to the office on December 12, and told him that if he continued to talk to the employees about the Union he would have to fire him. He quotes Kaplan as telling him he was disrupting employees' work. Kaplan's version of the incident differs considerably. Thus he testified that on the day in question Perez walked into the factory on the shift immediately preceding his own, wearing a Garment Workers button, 2 inches in diameter, on his shirt. By this period of time, it should be particularly noted, Re- spondent had recognized and negotiated a contract with the Teamsters, and all of its employees, including Perez, were members of the Teamsters pursuant to the contract's unit- security provision. According to Kaplan the employees on this shift stopped their work when Perez came in and came over to him and began talking with him. Kaplan then called Perez into the office and told him he wanted 8 hours of work from him and that he should not disrupt the work of em- ployees. He did not discuss the union situation with Perez nor did he tell Perez not to talk about the Union. In his original account of this incident Perez did not in- clude the button episode. On rebuttal, however, he admitted to having worn it, but stated that no one left his machine to come talk to him until employee Imbertcame over to him some time after he had arrived. As previously concluded, I do not credit the testimony of employee Perez. On the contrary, I accept Kaplan's version as set forth above and find nothing in it that would constitute employee interference, restraint, or coercion. I will, therefore, recommend that so much of the complaint as alleges this incident to be a violation of the Act be dismissed. 2. Perez' discharge During the period encompassed by this proceeding two layoffs occurred at Respondent's plant, both of them for reasons of economic necessity. The first occurred over the Thanksgiving weekend 1973, and the employees were called 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back on December 5; the second occurred on December 13. It is not disputed that both layoffs were effected in order of seniority. In the November layoff all the employees were laid, off except Schlyfestone, Imbert, and Buitargo, the. three leadmen.13 In the December 13 layoff Respondent laid off Perez, Romero, Montoya, Gonzalez, Sierra, and Niccolini (known to Respondent as Quiroga). By the first week of January these employees, with the exception of Perez, had been recalled. Some of them did not return, having found jobs elsewhere. Thereafter, several replacements were hired. Perez was not recalled. When questioned at the trial concerning Perez' status Ka- plan conceded that shortly after the first of the year his layoff culminated in a discharge. Kaplan's credited explanation of the series of events leading to the decision to place Perez in discharge status follows:" Sometime during the period between the first and second layoff Perez, then working on the night shift, allegedly went into Kaplan's office and removed a chair for use elsewhere in the plant. Kaplan'learned of this from the other employees on the night shift. Prior to this time Kaplan had noted that Perez had absented himself without calling in and had been -late several times. On November 11 he had so notified the Teamsters with whom Respondent had contractual relations. Upon learning of the chair incident Kaplan again notified the Teamsters by a communication date December 11, as follows: Subject without permission came into my office at night and removed my chair to the knitting floor. I am going to warn him again not to disrupt my place of business. Subject is continually disrupting my business. Thereafter, as previously found, Perez appeared at the plant several hours before his shift on the day before the December 13 layoff, wearing on his' shirt a Garment Workers button. This created what Kaplan categorized as a disturbance among employees then at work, all of whom belonged to the incumbent Teamsters. For this Kaplan called Perez into the office and told him not to disrupt the work, and that he expected "eight honest hours of work from him." He also referred to Perez' removal of the chair from his office and reprimanded him for it stating, "If he even touches anything of mine again I'm going to fire him."15 Kaplan's testimony also makes it clear that he told Perez that any future disturb- ance would be a cause for dismissal. Kaplan's layoff of Perez on the following day, however, was not connected with the reprimand of Perez. On the contrary, as noted above, it in- volved the layoff of a number of employees because of slack business and was admittedly effected on strict seniority. Kaplan, in the course of his conversation with Perez on the occasion discussed above, never discussed Perez' conduct with him in terms of his union activity and Perez himself conceded that Kaplan never asked him to remove the union button that had caused the disruption in the first place. 13 Buitargo succeeded Rodrigues 14 For reasons previously stated, Perez' explanations and denials are not considered as credible evidence is Perez testified that he never removed the chair from the office but nevertheless, to mollify Kaplan at the time of the reprimand, he did not deny that he had taken it I would suggest that this particular mental gymnastic of Perez is further evidence of his inability to cope with matters of truth or falsity. Sometime during his second layoff Perez came into the office in the evening and removed from the timecard rack the cards of the working employees in order-to identify the new hires.16 At 'the same time, according to the testimony of Garment Workers Organizer Sciacca, Perez took from the top of the desk in the office copies of the Teamsters authoriza- tion cards signed by Respondent's employees and brought them to Sciacca who copied down the names. The record is unclear as to what happened to these copies thereafter. Kaplan was apprised of Perez' visit and his handling of the timecards by an employee working on the night shift. He was not told, however, that Perez had taken anything from the office. Upon learning of Perez' unauthorized visit Kaplan determined to discharge Perez. On December 31, 1973, he wrote the. Teamsters to advise them, thus: Subject while not in my employ came in to factory then to office to copy names off of timecard rack. This action was illegal please handle. Subject disrupted the work of the workers who were present at the time. This hap- pened during or before Xmas week. By January 5, 1974, the callback of all laid-off employees had been accomplished, excepting for Perez. Although he did not so notify him Kaplan considered Perez discharged and did not recall him. Several of the laid-off employees had found jobs elsewhere in the meantime so Respondent hired new employees in their place, some of whom had also left and have been replaced. Upon the filing of the complaint in this matter Respondent, on advice of counsel, on January 15, 1974, telegraphed Perez to return to work, conditioning the return upon reporting-by Friday, January 15, 3 days later. In reply Perez informed Respondent he was then working and that the short notice he was being given was unfair, he being required to give 2-weeks notice in order to advise his present employer of his planned return. Thereafter, on February 28, Respondent reconfirmed its January 15 offer, protesting that it had intended the origi- nal one to be unconditional, and indicating that the new offer would remain open for a period of 2 weeks. Upon consideration of the foregoing findings, based as they are upon credible testimony, I am persuaded that Employee Jaime Perez was discharged by failure to be recalled for the reasons stated by President Kaplan, namely his unauthorized visit to the plant office and the handling and checking of the timecards while there, and his removal of a chair from Ka- plan's office. I am fully aware, of course, that Perez was active in behalf of the Garment Workers and was indeed responsible for the organization's activity among the em- ployees. And I have no hesitancy in finding, as I do, that Kaplan was fully aware of Perez' union activities. I know of no rule of law, however, that provides such employees with immunity from the usual consequences of misconduct, in- cluding, as here, discharge. Having thus found and concluded that Perez was discharged for cause and not for reason of his union membership and activity I shall recommend that so much of the complaint as alleges his discharge to be a viola- tion of Section 8(a)(3) of the Act be dismissed. 16 I do not credit Perez' denial that he removed the cards from the rack. COLONY KNITWEAR CORPORATION 255 E. The Alleged Refusal To Bargain As I have detailed earlier, Garment Workers representa- tives appeared at Respondent's plant on September 6 and requested of President Kaplan that he recognize the Garment Workers as the majority representative of the employees and negotiate a contract. Kaplan's equivocal reply evoked from Organizer Sciacca the suggestion that he consult an attorney and, depending upon the version accepted, get in touch with the Union or the Union would get-in touch with him. By telegram dispatched immediately after the request and re- ceived by Respondent the following day the Garment Work- ers repeated its demand and stated its willingness to prove its majority status. All of this is conceded by Respondent. Extensive testimony and documentation was adduced at the trial, including employees' signed cards authorizing the Garment Workers to represent them. It is upon the basis of these cards, claimed by counsel for the General Counsel to represent a majority of the employees in an appropriate bar- gaining unit, and Respondent's failure to recognize and bar- gain with the Garment Workers, that General Counsel bases his contention that'there has been an unlawful refusal to bargain which warrants the issuance of a bargaining order. In N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 614-615 (1969), the Supreme Court stated that a bargaining order should issue "[i]f the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election by the use of traditional remedies, though present, is slight and the employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." The alleged misconduct which General Counsel claims to be such as would preclude the holding of a fair election and would thus require the issuance of a bargaining order was the discharge of Perez which, upon credible evi- dence, I have found to have been for cause, and the substance of Kaplan's reprimand of him which I have found, also upon credible evidence, not to constitute unlawful interference, restraint, or coercion. So much of the legal basis which would support a bargaining order having evaporated, all that re- mains is the unlawful assistance which Respondent has been alleged to have given to the Teamsters by recognizing it under most peculiar circumstances, negotiating a contract with it, agreeing in the contract to a provision for a union shop requiring continuing Teamsters membership, for the checkoff of dues and initiation fees, and for maintaining and enforcing this contract. In greater detail hereafter I shall consider this particular allegation and will find it to be violative of the Act. I am not persuaded, however, that this is the variety of ag- gravated conduct that the Supreme Court had in mind in Gisselas would preclude the holding of a free election. On the contrary, the multiplicity of signed authorization cards here, some executed under peculiar circumstances (Quiroga and Niccolini, supra) seems to be a representation situation which cries out for the holding of an election to resolve the confusion. Upon consideration of the foregoing, and upon considera- tion of the lack of credible evidence to support a finding of unlawful conduct of the nature contemplated by the Court in Gissel, I find an analysis of the cards unnecessary,17 and will recommend that as of so much of the complaint as alleges a violation of Section 8(a)(5) requiring the issuance of a bar- gaining order be dismissed. - F. The Unlawful Assistance to the Teamsters The circumstances surrounding the efforts of the Garment Workers-to be recognized by Respondent and the counterplay which followed thereafter have been so sufficiently detailed to this point in the Decision as to not require further repeti- tion. Suffice it to say that immediately upon being presented with the Garment Workers demand for majority recognition, followed by the telegrams of offer to prove that majority, Respondent admittedly undertook, through the apparent aegis of its silent partner, Karol, a liaison with the Teamsters which quickly resulted in the presentation of signed Team- sters authorization cards. At least some of these, it was testi- fied, were signed in Respondent's office. There immediately followed a verification of card signatures with cancelled pay- checks, the recognition of the Teamsters, the signing of a memorandum of agreement, the execution of a collective agreement which included union-security and checkoff provi- sions, and the implementation and enforcement of this agree- ment thereafter. Nothing is so firmly established in the law of labor rela- tions as the obligation of an employer to maintain a position of strict neutrality when faced with the conflicting claims of two or more rival unions which give rise to a real question concerning representation in a unit appropriate for collective, bargaining." Implicit in this concept of neutrality is the ex- istence of a real representation question. And in this respect it is understood, of course, that the filing of a representation petition by a rival organization, a condition not present here, is not the sine qua non. 19 What is significant is the character of the rival claim. Thus it is well established that "employer does not violate the Act by extending recognition to one of the competiting [sic] unions where the rival union's claim is clearly unsupportable or specious, or otherwise a colorable claim."20 In the instant situation certain things are clear: The rivals exist, the claim was made, and by Respondent's recognition of the Teamsters and the execution of a contract, after the making of the claim, the neutrality was breached. What re- mains to be determined then is whether, by established stan- dards, the claim of the Garment Workers failed to create a real question concerning representation. I find no such deficiency. It is of no consequence that the majority status of the Garment Workers has not been established, nor should it be required to be. Findings based upon evidence adduced at the hearing disclosed that 6 of the 13 employees in the appropri- t7 A review of the record discloses that as of September 6, the date of the Garment Workers' demand, there were 13 employees in the bargaining unit, including Schlyfestone and 3 Sunday workers As of the same date cards had been signed by employees Whiteman, Bogdanov, Sierra, Imbert, Marquez, and Perez, a total of six For reasons of credibility previously stated I have not included the card signed by employee Quiroga (alias Niccolini). 18 Midwest Piping & Supply Co., Inc., 63 NLRB 1060; William Penn Broadcasting Company, 93 NLRB 1104. 19 Novak Logging Company, 119 NLRB 1573, 1574 (1958), 'and cases cited at In. 4. 20 The Boy's Markets, Inc., and Food Employers Counci4 Inc, 156 NLRB 105 (1965) 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ate unit had authorized the Garment Workers to represent them at the time the claim was made. To the extent, therefore, that the complaint herein alleges a violation based upon the Garment Workers being designated by a "majority of the employees," I would conclude and find that the General Counsel has failed in its proof. But as neither substantiality nor majority is of moment in the circumstances presented here I would further conclude that, having made its claim, which for reasons previously considered must necessarily be considered colorable, being based as it is upon authorization cards 'of seven employees, the Garment Workers thereby created a real question concerning representation. Upon the foregoing, therefore, it is clear that during the pendency of a real question concerning representation Respondent breached the neutrality required of it by recognizing and bargaining with the Teamsters.21 As such conduct has con- sistently been held to be interference, restraint, and coercion of employees in the exercise of their statutory rights and unlawful assistance to a labor organization, I conclude and fmd that Respondent has thereby violated Section 8(a)(1) and (2) of the Act.22 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its business operations 21 American Bread Co'mpany, 170 NLRB 85, fn. 1 (1968) 22 The Boy's Markets, Inc, supra; Scherrer and Davisson Logging Com- pany, 119 NLRB 1587 (1958), William Penn Broadcasting Company, supra; Midwest Piping and Supply Co., Inc., supra 23 The Bassick Company, Spring Valley Division, a division of Stewart- Warner Corporation, 127 NLRB 1552 (1960). described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found and concluded that Respondent rendered unlawful assistance and support to the Teamsters, thereby interfering with, restraining, and coercing its employees'in the exercise of rights guaranteed them by Section 7 of the Act, I shall recommend that it cease and desist therefrom. Affir- matively I shall recommend that Respondent withdraw and withhold any recognition it has granted the aforesaid Team- sters or any labor organization unless and until the National Labor Relations Board has certified it, or such other labor organization as may qualify as majority representative of Respondent's employees, following a Board-conducted elec- tion in the unit which I have found to be appropriate for the purposes of collective bargaining. I shall further recommend that nothing in the Board's order be construed as-varying or abandoning wages, hours, seniority, or other substantial benefits contained in any outstanding agreement between the Respondent and the Teamsters.23 I shall further recommend that Respondent post customary notices. In addition I shall recommend that the Regional Director be directed to refer the record in this case to the United States attorney for the Eastern District of New York and agencies of the Federal and state governments responsible for the ad- ministration of unemployment insurance matters for appro- priate action. [Recommended Order omitted from publication.]