Case, Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 24, 1978237 N.L.R.B. 798 (N.L.R.B. 1978) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case, Inc. and Upper South Department, International Ladies' Garment Workers' Union, AFL-CIO Gibraltar Industries, Inc. and International Ladies' Garment Workers' Union, AFL-CIO and Upper South Department, International Ladies' Garment Workers' Union, AFL-CIO. Cases 9 CA 10829 1. -2, 9-CA 10958 1, 9 RC 11709, 9 CA 10786 I. 9 CA 11028. and 9 CA 10786 2 August 24, 1978 DECISION, ORDER, AND DIRECTION BY CHAIRMAN FANNIN( AND MI NIBERS PENEI.I () AND TRUESI)AI. F On November 30, 1977. Administrative Law Judge Claude R. Wolfe issued the attached Decision in this consolidated proceeding.' Thereafter, Respondents. Charging Parties, and the General Counsel all filed exceptions and supporting briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings.2 and conclu- sions of the Administrative Law Judge only to the extent consistent herewith, and to adopt his recom- mended Order as modified herein. The Administrative Law Judge concluded that af- ter the Union obtained authorization cards from a majority of employees in the unit, Respondent Case, Inc., committed numerous violations of Section 8(a)(1) of the Act and also discharged an employee in violation of Section 8(a)(3). As part of this consoli- dated proceeding, the Administrative Law Judge overruled challenges to the ballots of four employees and also found that Respondent Case interfered with the election by engaging in certain objectionable conduct. In fashioning a remedy for Respondent Case's un- fair labor practices, the Administrative Law Judge 'On November 16. 1976. an election was conducted anl..lng the emploi- ees in the appropriate unit at Respondent Case. Inc The tall! of ballots showed that 94 employees cast ballots for, and 97 cast ballots against. the Petitioner. kUpper South Department. IL. GWL:. herein the tmlon l here were nine challenged ballots, a number sufficient to affect the results of the election. 2 Respondents have excepted to certain credibillt fiindintgs illide b h the Administratie L aw Judge. It is the Board's eslablished plohc nol to over- rule an Administratisve Law. Judge's resolutions vi.h 'epect it credibihllt unless the clear preponderance of all of the releantli e.:dence colnince, us that the resolutions are incorrect. Standard Drt Ifa/!l PItl (iti, i Ira 91 NLRB 544 (1950), enfd. 188 F2d 362 ((C.A 3. 1951 NWe ha.¢ eadrefulls examined the record and find no basis for reversing his findinegs recommended that the challenged ballots be opened and counted and that a certification of representative issue if the revised tally of ballots results in a union majority. If, however, the Union does not receive a majority of votes cast, the Administrative Law Judge recommended that the election be set aside and that Respondent Case be ordered to recognize and bar- gain with the Union. Although the Administrative Law Judge found that this Respondent's unfair labor practices were sufficiently severe to warrant the is- suance of a bargaining order, he nonetheless failed to explicitly provide for both the certification of repre- sentative if the Union prevails in the election and for the imposition of a bargaining order. The Board has held that in situations such as the instant one the outcome of the election should not be determinative of whether or not a bargaining order should issue) The rationale underlying this result is simply that a certification alone does not serve to correct any unilateral changes which the employer may have instituted between the time when it was obligated to bargain and the time when a certifica- tion is issued.4 The Administrative Law Judge found, and we agree, that Respondent Case violated Section 8(a)(l) of the Act by interrogating employees concerning their union activities, by promising benefits to em- plovees for the purpose of discouraging their union activities, and by threatening employees with loss of work for engaging in union activities. The Adminis- trative Law Judge also found that Respondent Case violated Section 8(a)(l) by directing other employees to assist it in discouraging union activities. We also adopt the Administrative Law Judge's finding that Respondent Case violated Section 8(a)(3) of the Act by discriminatorily discharging Anita Wilburn, a vo- cal and active union adherent. In these circumstances, we find that the unfair la- bor practices committed by Respondent Case cer- tainly had "the tendency to undermine majority strength and impede the election process." 5 A bar- gaining order is warranted here not only to protect the right of employee free choice, but also to insure that Respondent Case does not profit from its own wrongdoing.6 Moreover, we shall date the bargaining obligation as of September 15, 1976, the date on which the Union first attained majority status in the appropriate unit.' i (,retli itlhnlit antd Paific Tea Cinitipail Inc. 230 NLRB 766 (19771. 4See Ppe iaientenanr ( irpororairn. 228 NLRB 326 (19771 1. R B. s (Gisse/ Pa Arng (' /. Inr'. 395 l .S 575, 614 (1969) ' See tlrinlg.lrl Wrif ar & ( , Imrror alead. 220 NLRB 373 (1975) Iradlilt Parl, In., 219 NLRB 298 11975): Beastle Energt. In( d h a PeaAlr Ran, (iii C( onpanr Ohio DOiiotll =1. 228 NL.RB 93 (1977). Chair- man Fanning agrees with this date because it is also the date if Respondent (as's relection of the tnlllt' demand for recognition 237 NLRB No. 60 798 CASE, INC Accordingly, we shall adopt the Administrative Law Judge's recommended Order as modified herein and issue the Direction set below. ORDER Pursuant to Section 10(c) of the National l.ahor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative l aw Judge, as modified below, and hereby orders that Respondent Gibraltar Industries, Inc., and Respondent Case, Inc.. Olive Hill, Kentucky, their officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order, as so modified: I. Substitute the following for paragraph B. 2(a): "(a) Recognize, effective from the date beginning September 15, 1976. and, upon request. bargain col- lectively and in good faith with Upper South Depart- ment, International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and con- ditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: "All production and maintenance employees. including shipping and receiving employees em- ployed by the Employer at its Olive Hill, Ken- tucky. location, but excluding all office clerical employees, professional employees, and guards and supervisors as defined in the Act." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice marked "Appendix ('." DIRECT ION It is hereby directed that the Regional Director for Region 9 shall, within 10 days from the date of this Decision, open and count the ballots cast by Juliette Haslebeck, Walter Sherman Butler, Woodrow Bur- chett. and Elva Duncan in Case 9 RC 11709, and prepare and serve on the parties a revised tally of ballots. If the revised tally reveals that the Petitioner has received a majority of the valid ballots case, the Regional Director shall issue a Certification of Rep- resentative. However, if the revised tall\ shows that the Petitioner has not received a majority of the valid ballots cast, the Regional Director shall set aside the election results, dismiss the petition. and vacate the proceedings. APPENDIX C Noric:( To EMPI.oY .ts POSI iD n BY ORDE R OF Till N \lin', i LABOR RI IAllO-,S BOARD An Agency of the United States Government Wi Vll.l. Nioi discourage membership in Up- per South Department, International Ladies' Garment Workers' Union, AFL-CIO, or an,, other labor organization, by discharging any of our employees or in any other manner discrimi- nating against them in regard to their tenure of employment or any term or condition of em- pliot ment. VWi \ III l(I interrogate our employees con- cerning their or other employees' union activi- ties, membership, or desires. Wi va itl so)I promise benefits to our employ- ees for the purpose of discouraging their union activities. \VI Al I N()i solicit our employees to assist us in undermining and destroying union organiza- tional efforts. Wi xaiil -,ol threaten our employees with loss of work or other reprisals for the purpose of dis- couraging their union activities. WI \si.iu sNi refuse to recognize or bargain with Upper South Department, International l.adies' Garment Workers' Union. AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below. Wi. Wii.i. sol in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. Wi v\d ll recognize, effective from the date be- ginning September 15. 1976, and, upon request. bargain collectively and in good faith with Up- per South Department, International Ladies' Garment Workers' Union, AFL -CIO, as the ex- clusive bargaining representative of all the em- ployees in the bargaining unit described below with respect to rates of pay., wages, hours of em- plo)ment. and other terms and conditions of employment and, if an understanding is reached. embody such understanding in a signed agreement. The appropriate bargaining unit is: All production and maintenance employees, including shipping and receiving employees employed by Case. Inc., at its Olive Hill, Ken- tucky. location, but excluding all office cleri- cal employees, professional employees, and guards and supervisors as defined in the Act. Wit: v ii. offer to Anita Wilburn immediate 799 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and full reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to her se- niority or other rights and privileges, and we will make her whole for any loss of earnings she may have suffered as a result of her suspension and discharge, with interest. WE WILL expunge from our records the warn- ings issued to Anita Wilburn on November 5, 9, and 19, 1976, and advise her in writing that we have done so. All our employees are free to join, or to refrain from joining, Upper South Department, Internation- al Ladies' Garment Workers' Union. AFL-CIO. or any other labor organization. CAS:E. INC. DECISION STATEMEN1 OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: The above-styled cases were tried before me as a consolidated proceeding at Morehead, Kentucky, on June 8, 9, 10, 14, 15, 16, 21, and 22, 1977.1 The pertinent docket entries are as follows, chronologically: November 9, 1976 International Ladies' Garment Workers' Union, AFL-CIO (herein called the International or the ILGWU) filed chalrges in Case 9 CA 10786 alleging that Gibraltar Industries, Inc. (herein called (,i- braltar). violated Sec. 8(aX(I), (3), and (5) of the Act. November 19. 1976 Upper South Department. International Ladies' Garment Workers' Union. AFL CIO therein called Upper South), filed charges in Case 9-CA 10786 2 alleging Gibraltar violated Sec. 8a)(,) Iof the Act. November 19, 1976 Upper South filed charges in (Case 9 (CA 10829 alleging that Case. Inc., had violated Sec. 8(a}(Il of the Act November 22, 1976 Uipper South filed charges in Case 9 CA 10829 2 alleging Case. Inc., had violated Sec. 8 (a)( I) and (51 of the Act. December 22, 1976- Complaint and notice of hearing in ('ase 9 ('A 10829 I, 2. December 22. 1976 Order directing hearing. order consolidating cases. order transferring case to the Board, and notice of hearing in Cases 9 (CA 10829 1, -2. and 9-RC 11709 (which involves determinative challenges aind objections to a National Labor Relations Board-conducted election ia (iCase, Inc. January 10. 1977 Upper South filed charges against Case. Inc. ( Case 9 CA 10958 alleging violations of Sec. 8(a)(1 ) and (3) of the Act January 21. 1977 Upper South filed First Amended C(harge agaitnst Case, Inc., in Case 9- CA 10958 alleging violations of Sec 8(a)( i). (3). and (4) of the Act. February 4, 1977 ILGWU filed charge against Gibraltair in (Caise 9 ('* 11028 alleging violations of Sec. 8(a)(1) and (5) ofi the Act February 18, 1977 -Upper South filed second amended charges against Case. Inc., in Case 9-CA 10958 alleging violations of Sec. 8 (a)( 1) (3). and (4) of the Act February 28, 1977 -Complaint and notice of hearing in (ase 9 ( A 10958 1. Order Consolidating Cases and Notice of Hearing in Cases 9 (CA 10829 1. -2. and 9-CA 10958 I. March 28. 1977-First amended charge filed in (Case 9 (CA 10786 2 b) Upper South alleging Gibraltar violated Sec. 8(a)(1) and (3) of the Act. April 12. 1977 Order consolidating cases, consolidated complaint and notice of hearing in Cases 9-CA 10786 I and 9 ('A 10786 2. Order conso- lidating cases and notice of hearing in Cases 9 (A 10829 1. 2. 9 CA 10958 1, 9 RC- 1 1709. and 9 CA 10786 i. and -2. April 15, 1977-Order consolidating cases. amended consolidated cornm- The General Counsel alleges that Gibraltar violated Sec- tion 8(a)(1), (3), and (5) of the Act in several respects, in- cluding threats of loss of work and plant closure; the crea- tion of an impression of surveillance of union activities of its employees; the discriminatory layoff of its entire work force: the transfer of its operations from Olive Hill, Ken- tucky, to Brooklyn, New York, to avoid bargaining with the ILGWU: refusal to meet at appropriate places and bar- gain on the plant closure and its effects on employees; re- fusal to furnish information necessary to meaningful col- lective bargaining; and the utilization of the transfer of operations as a device to chill the union activities of Case, Inc., employees. It is further alleged that Case, Inc., violated Section 8(a)(l), (3), (4), and (5) of the Act by coercively interrogat- ing employees; threatening its employees with loss of jobs, plant closure, and other unspecified reprisals; discrimina- torily discharging Anita Wilburn: refusing to bargain with Upper South as the designated representative of its em- ployees: and, through its agents Gibraltar and Gibraltar's president Wallace Forman, closing the Gibraltar plant in order to chill employee union activity at Case, Inc. The objections to election in Case 9-RC- 11709 parallel the complaint allegations, in major part, and there are nine determinative challenges to be resolved. The allegation set forth above in rather general terms will be dealt with in specific detail hereinafter. The Re- spondents, Gibraltar and Case, Inc., deny the commission of unfair labor practices. Upon the entire record (certain errors in the transcript herein have been noted and corrected), including my ob- servation of the witnesses as they testified, and after due consideration of the able post-trial briefs filed by all par- ties. I make the following: FINDINGS AND CON(CI USIONS I. Bt SINESS Of GIBRALTAR AND CASE. INC Gibraltar manufactures sleeping bags and other quilted materials at its Brooklyn, New York, facility and formerly operated a facility at Olive Hill, Kentucky, where it manu- factured sleeping bags and other quilted materials. During the 12-month period preceding the closing of its Olive Hill facility, a representative period, Gibraltar purchased and received goods and materials valued in excess of $50,000, which were shipped directly to its Olive Hill facility from points located outside the State of Kentucky. During the 12 months preceding the issuance of the amended consoli- dated complaint in Cases 9-CA-10786-1, -2, and 9-CA- 11028, on April 15, 1977, Gibraltar purchased and received goods and materials valued in excess of $50,000, which were shipped directly to its Brooklyn, New York, facility from points outside the State of New York. Case, Inc., a Kentucky corporation, manufactures cloth- ing at its Olive Hill, Kentucky, facility, from which it annu- plaint. and notice of hearing in ( ases 9 ( A 10786 1: 9 ('A 10786 -2. and 9 ( A 11028. Order consolidating cases and notice of hearing in C ases 9 ('A 10)958 I: 9 R( 117(9. 9 (A 10786 I, 9 ( CA 11028, and 9 CA 10786 2. Ihere werc idditional aineldnlents to complaints permitted at hearing. 800 unit of production and maintenance and shipping and re- ceiving employees of Gibraltar at its Olive Hill plant. Gi- braltar operates a much larger plant at Brooklyn, New York. The Company and the Union held their first negotia- tions meeting after certification on October 19, at Olive Hill. Present for the Employer were the Company's presi- dent. Forman. and its attorney. Stanley Israel. The Union was represented by International Vice President Sam Janis. organizer Pat Rains. and employees Ray Cox and Mary Freize. The Union presented the Company with a written proposal in the form of a proposed contract of some 37 articles. The Employer presented no written proposal and did not present one during the course of negotiations. other than a management rights clause proposal which was handed to the Union at the following meeting. The Union's proposals were not discussed at this first meeting because the Company requested and received time to examine them before discussing them. There was no real discussion of the lUnion's proposals at this first meeting. Janis requested a list of employees, their job classifications, and their rates of paN. All of these were furnished to him prior to the second meeting. Janis was also furnished with the written policies of the Company relating to wages, holidays, and various other items that were in effect at the time. Gibraltar's presi- dent. Forman. told Janis that there was a major absentee problem and other production problems at the Olive Hill plant and that if this did not improve the plant would not survive. He also told Janis that there was no point in his maintaining his operations in Olive Hill, in view of the fact he already had a plant in Brooklyn, unless the work could be done more cheaply in Olive Hill. Forman further men- tioned that Ben Maggio, the Olive Hill plant manager, was leaving and it would be necessary to get a replacement for him. The next negotiation meeting was held October 27. Israel. speaking on behalf of the Company, stated the posi- tion that the Employer had examined the contract pro- posed by the Union, would not sign it as written, and was taking the position that it did not want to increase the existing monetary benefits then in effect, including wages, vacations, and holidays.' Janis protested because the Em- ployer would not offer any increases in economic benefits. After this preliminary discussion regarding the Employer's position on economics, the parties discussed the Union proposals item by item. The parties reached an agreement on about 30 of the articles in the Union's proposal, either in whole or in part, but the Employer steadfastly declined to offer anything more in the way of wages and other eco- nomic benefits than what was then in existence. Part of the Union's proposal was a request for a 3-year contract. The position taken by the Employer at the end of this meeting, after agreement had been reached on many items and some others had been reserved for Israel to discuss with Forman. was that although it would negotiate on and agree to many of the other items in the Union's proposal, it would not grant any additional monetary benefits than the employees were currently enjoying, and the Company Ihereaftei. thrtlughout the course of the events related herein, the (Coin- pain did not change its ptosltlin that it would make no changes in , hat the parlies referred Io cas conomic lenlms which enlcompassed wages. the selting of piece o irk. ratcs. Xsicatlons. hihlidas. a ind tarious other monetars itemi ally sells goods and materials valued in excess of $50,000, which are shipped from its Olive Hill. Kentucky, facility directly to points outside the State of Kentucky. At all times material herein, Respondents Gibraltar and Case, Inc., have each been and are now employers within the meaning of Section 2(2) of the Act, engaged in com- merce and operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 1I THE LABOR ORGANIZAI IONS The ILGWU and the Upper South Department2 are, and have been at all times material herein, labor organiza- tions within the meaning of Section 2(5) of the Act. 111 THE AI E(i:D l NIFAIR LABOR PRA( CIII S A. Introductort Remarks The allegations of unfair labor practices in the various complaints issued in this proceeding are based on events occurring at the Olive Hill. Kentucky, plants of the two Respondents. In addition to the actions of each Respon- dent alleged to have been directed at its own employees. and/or their respective unions, it is alleged the Gibraltar and its president, Wallace Forman. acted as agents of Case. Inc., in committing unfair labor practices designed to chill the union activities of Case, Inc.. employees and to dissuade them from selecting the Upper South Department as their exclusive collective-bargaining representative. A consideration of the allegations of the various complaints and amendments thereto, as well as the evidence adduced which is material to the allegations against both Respon- dents, persuades me that the presentation of the facts in this proceeding could be quite confusing if all the evidence were presented in one continuous chronological review. I shall, therefore, in the interests of clarity of exposition and ease of understanding, first separately set forth the facts found with respect to the happenings at each Respondent's facility, and then relate the facts found bearing on the al- leged interrelationship between the two Respondents. B. The Facts 3 1. Gibraltar Industries, Inc. On October 12, 1976, the ILGWU was certified, pur- suant to a Board-conducted election on October 1. 1976, 4 as the exclusive collective-bargaining representative of a 2 'The case caption is hereby corrected to reflect that the L pper Siouth Department filed the charges in Cases 9 ( A 10829 1 2. ;1a.i 9 ( A 10958 1 and the petition in Case 9-R( 11709 The facts set forth herein are based on a synthesis of the credited aspects of the testimony of all witnesses. the exhibits. stipulations of fact. and care- ful consideration of the logical consistency Iand inherent prohabhlits of the facts found. Although I may not. in the course of this decisiun. advert to all of the record testimons or documentar? evidence. it has been cairefull\ weighed and considered. and to the extent that tcstinlolns or other esidence not mentioned herein might appear to contradict the findings of fact. that evidence has not been disregarded hut has been rejected as incredibleh ;lck- inm in probatise worth, surplusage, or irrelevant All dates herein occurred in 1976 unless otherswise speifliedI CASE. INC 801 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted a 2-year contract. This was unacceptable to Janis. By letter of November 1, Israel advised Janis with regard to matters he had promised to take up with President For- man. The letter rejects the Union shop clause proposed by the Union, accepts certain other provisions, offers some suggestions with regard to a "leave of absence" clause, and advises of the Company's willingness to open up a payroll account in Olive Hill to insure a Friday pay date. On November 3, Gibraltar's president, Forman, was in- terviewed by a reporter, Dan Tracy, for the Olive Hill Times. During this interview, which was published in the Olive Hill Times dated November 8,6 Forman told Tracy that the Gibraltar plant in Olive Hill had no future unless the Union turned around and walked away. He also stated that he did not see how the Union could be of any benefit to this area and that he believed that the real reason that the Union was at his plant was not for increased worker benefits but for the foothold the Union could gain in orga- nizing the bigger plants in Olive Hill. Tracy quotes Forman as saying, with regard to negotiations, "Our offer cannot be increased if we are to stay in the sleeping bag business, . . . I produce sleeping bags elsewhere. If I am forced to, I'll shut down." Forman also told Tracy that he would prob- ably close the plant in the event of a strike, but he had wanted to turn it into a very substantial plant. Forman commented to Tracy that if the employees reconsidered and voted not to have the ILGWU the Union might decide to pull out.7 Forman told Tracy that the Union had re- quested a 30-percent pay increase over the Ist year and 50 percent over the next 3 years, that his attorney had exam- ined the proposal, and that the Company had accepted a portion of the demands but rejected the majority of them. Janet Baker credibly testified that 3 or 4 days before employees stopped working at Gibraltar she saw a Telex message received in the Gibraltar office from Sol Ludwig, whom she refers to as a production manager for Gibraltar in the New York office. The message was addressed to plant manager Maggio and stated, "please return all com- ponents in excess of current open cutting tickets as soon as possible for reassignment." 8 About the same time Gibral- tar stopped producing sleeping bags at Olive Hill for one of its customers, Eastern Mountain Sports. The bags on hand with the Eastern Mountain label in them were relabled "Trail-Tech," a Gibraltar trade name. On November 5, plant manager Maggio told employee Ollie Ray Cox that he had received a telegram from Sol Ludwig to close the plant down. Cox asked him if that meant that the plant was closing down permanently. Mag- gio replied that he did not know. The last two employees, other than Maggio and Janet Baker, who continued to work at the plant until the machinery was finally moved, 61 conclude that the interview with Forman occurred on Wednesdal. November 3. because the article in the Monday. November 8. newspaper states Ihat the interviews was held the previous Wednesdax 7Forman did not testify at the hearing. Tracy credibly testified that his article in the newspaper reflects what he was told by Forman and that there was never any demand for retraction of the article. 8 I conclude that the message from Ludwig was received either in Nol- vember 5 or a day or two earlier, in view of the fact that lost employees were laid off on November 5 and the document w.as seen in ihe (C ompan's office by another employee on November 5 working at Gibraltar were Cox and Cooper who loaded the materials from the plant onto a truck on November 8 for shipment to Brooklyn. The machinery owned by Gibraltar was not moved out of the plant until the first quarter of 1977, at which time it was transferred to the Brooklyn plant. No employees were recalled to work at Olive Hill after November 8. During the period including October 1976 through March 1977. the Brooklyn facility manufactured 450 sleep- ing bags in January 1977, and then followed with 909 in Februarv and 1,751 in March. They produced no sleeping bags from October through December 1976. Gibraltar shipped no sleeping bags from its Brooklyn facility from the first of October until February 1977, during which month it shipped 1.075 sleeping bags. In March 1977, it shipped 1,751 bags. The Company did not advise the Union prior to the lay- off of its employees on November 5 and 8. The first knowl- edge Janis received of the layoffs was through a call from his attorney on November 8 to the effect that the plant had been shut down. A meeting was thereafter arranged with the Company for December 9. At the December 9 meeting. Israel, Forman. and Maggio were present for the Employer and Janis. Rains, and another union representative were present for the Union. No employees were there. Israel assured Janis that the plant was not closed down and that no decision had been made as to whether or not to close it. All the equipment was still in place at the time of this meeting. Israel told Janis that the Company was prepared to sign a contract of 2 year's duration incorporating the items that had been agreed upon by the parties, but with continuation of the existing economic benefits for the em- ployees. Janis agrees with Israel that this was indeed the Employer's proposal on December 9. After some prelimi- nary conversation about the need for getting business to get production, the need for a new plant manager, and a plea by the Employer that the Union accept the contract proposal, Janis rejected the proposal and insisted on in- creases in monetary benefits. In response to that, Israel told the Union that the Company had three alternatives. The first alternative was to come back with a proposal in- volving increased monetary benefits. The second was to let the plant just sit the way it was and see what happens, and the third was to just close the plant down. After further discussion it was agreed that the Company only had two realistic alternatives. The first was either to make a better offer to the Union with respect to economic benefits, and the second was to close the plant down. Israel agreed that he would let Janis know what the Company's decision was going to be. On December 17, Israel called Janis and told him that the Company would not change its economic of- fer, but would still sign the 2-year contract that it had pro- posed. Janis rejected this, whereupon Israel told him that Gibraltar was going to close the plant. By letter of Decem- ber 20, Israel confirmed this conversation with Janis and told him that if he desired to further discuss the termina- tion of operations or the effects of it, "please do not hesi- tate to call." By letter of December 21. the Union demanded that Gi- braltar meet and bargain over its stated intention to perma- nently close the plant, contended that there had been no 802 tors. which is engaged in the greeting card business and, insofar as the record shows, has no connection with Gi- braltar or Case, Inc.. the other Respondent in this case. There is no ev-idence that the Card Factory is anything other than a bona fide company which will be in business for the foreseeable future. In addition to the foregoing evidence relating to the ne- gotiations and the ensuing plant closure, the General Counsel offered testimony from various witnesses to sup- port the allegations of the complaint that Gibraltar vio- lated Section 8(a)( I) of the Act by various actions of Ben Maggio. Sol Ludwig, and Wallace Forman.9 On the morning of some unspecified date in July. Ben Maggio walked up to Ollie Ray (ox where he was working in the shipping department and asked him if he had heard anything about the Union coming in. Cox replied that he did not and asked Maggio how Maggio knew. Maggio re- plied that he had ways of finding out. Sometime during this conversation Maggio also told Cox it didn't matter to him one was or another what Cox' feelings about the Union were. Subsequently, Cox attended a meeting of the ILGWU on August 5 at the Carter Cave Lodge, where some employees signed union cards. The following morn- ing. August 6. Ben Maggio spoke to Cox privately in the morning and said that he had heard that the employees had had a meeting at the Carter Cave Lodge and some had signed cards. Maggio went on to ask Cox if he had signed a card, but ( ox did not answer this question. Instead. Cox asked Mlaggio how he knew about the meeting, whereupon Maggio replied that he had ways of finding out. On August 17. the Employer called a meeting of all em- plosees. Company representatives present were Ben Mag- gio and Sol Iludwig. ' AccordingI to Cox, whose version I credit over that of Freize, who seemed to be somewhat confused and whose testimons was contrary to her pretrial statement in some respects. Maggio told the employees that he had received a message from Forman that the fac- torN was losing customers and that if they continued to lose customers the factory could he forced to close. Maggio "Rcpindicnll cncede, and I find. that Gibraltar's presideni. Wallace Forman. and it O()ive Hill plant manager. Ben Maggio. were. at all times material to the .lleication, in vhich the are Inol ied, supervisors within the meaning of Sc.lin 2 1I of Ihe Act and agent, ilf Gilbraltar The Respon- dent dlene', that Sol I ludl Ig i eithcr a uper' isor or an agent while the ex denc , -inc, hat ur, le.ir a, toI his exact capacils with the (ompan5 . I conclude lhti udIlg val. ai. t the times he engaged in the conduct com- plained of and a. the time hle ent the Ielex to the Ohve Hill plant on or a.hout Nixcrbher 5. an agent of (lihralatr In reaching this conciusion I am persuaded that the Ielex me'.'lge sent b I udwig to Maggio as an Instruc- tion extahlixhes thaii I uidv a,x im n agent if the Fmiploser empowered, at the xer' leasl 1I, dire c Maggiia ta, Ike certain action I hake also noted that L dw, ig's tateltlenls c.mpl;ned if were made at a meeting called hs M3g- go [I aIit. cion,,der it igtificant that Janet Baker. the office secretar) for (hbrahlar at Ils (Olie Iill paint, refer', t. I udwig a; the production manager for Gihralt.r it the Ne,, 't oirk iffice, and that Ollie Ras Cox credibhl re'tiftedi thai he w.ha, told ' M1iaggilo that I udwig was a foreman for Gibral- tar from Briookli Neither I orman. Magglo. nor Ludwig testified before ne. Accordilngl. the ctinmol, of the General ( ounsel's witnesses relating t, the exent alleced In the o.itipl.iint iIlliing these three gentlemien i .rediled except to If - el t C tli ii thit Mlgtl t lie ilterntilll inconsistent ir con- triadlictor' of other mitre credible testrlins FI cirtclude that the ireeting occurred on August 17 as Cox testified. rather than ()tibher 17 as ltarm I retle testifies. hecause the content of Magl,'t renitl k refleit Ih.t Ihe rmeeing <,curred prior to the election opportunity to engage in meaningful negotiations regard- ing the decision to close, stated that if Gibraltar did close the plant for legitimate reasons the Union would demand bargaining with respect to the effects of that decision on the employees, and requested a negotiating session as soon as possible. Israel responded to this letter by his own letter of December 28, in which he advised the Union's attorney that there had been discussions of a meaningful nature prior to the closing of the plant and set forth the three alternatives that had been discussed and then reduced to two at the December 9 meeting. Israel emphasized that inability to pay the money was not the Company's basis for the refusal to better its economic offer. Israel further ad- vised that the Company had made a final decision but was prepared to meet further with the Union to discuss the effects of the termination and the termination itself if the Union desired, but requested that "in view of the fact that the Company no longer has an operation in Kentucky'. any future meeting be held in New York City where both the Union and the Company have their main offices." Janis then dispatched a letter dated January 6, 1977, in response to Israel's letter, in which he requested that a meeting be held in Kentucky or at a convenient location elsewhere to discuss the termination of operations and the effects on employees. Janis also requested the Employer to furnish information to assist it in bargaining, including, inter alia. the additional costs involved in obtaining additional sales and the Company's economic cost in Kentucky and its fi- nancial profit or loss for the past 2 nears. together with documentation of this information with accounting state- ments, tax returns, and other necessary documents. Janis also requested a description, accompanied with supporting company documents, of the production inefficiency at the Kentucky operation during 1976 and the comparision of efficiency between the Kentucky and Brooklyn operations. Janis further requested that the Employer furnish the names of customers who cancelled orders, the specific or- ders cancelled, and the reason for such cancellations, as well as lost reorders. Janis closed the letter with a request that Israel advise him when he expected to have the mate- rial prepared. so that they could arrange for a mutually convenient time and location for a meeting. This exchange of letters was terminated by Israel in his letter of January 17, 1977, in which he took issue with the statements of Janis as to what had transpired during negotiations. re- fused to meet in Kentucky, offered to meet in New York or to accept proposals by way of conference telephone calls or by mail, and refused to furnish the information requested by the Union on the grounds that it was irrelevant inas- much as the termination itself was a completed matter and that, although prepared to discuss it, the Company did not intend to reverse itself on the plant closure. Gibraltar started moving its equipment from the plant in Olive Hill to the Brooklyn plant in January 1977, at which time it moved the sewing machines and tables. In the early part of March 1977. the remainder of the machinery, pri- marily quilting machines as well as the office furniture and equipment, was removed and transported to the Brooklyn plant. After March there was no Gibraltar equipment re- maining in the plant. The premises formerly occupied by Gibraltar at Olive Hill are now occupied by the Card Fac- CASE. INC. 803 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then went on to say if the Union got in it would be used as a "strike against us." I am persuaded that Maggio's state- ment that the Union could be used as a strike against the employees was an ad-lib on his part, and was not in the document he received from Forman. Freize testifies that Maggio said that if the Union came in, employees might have work and they might not. Cox does not testify on this point, and I credit Freize to this extent. According to both Cox and Freize, Ludwig also spoke at the meeting and asked employees what the chip was that they had on their shoulders and why they had to go out and get strangers and bring them in when they could have come to the Com- pany and sat down and talked it over and worked some- thing out. On or about August 24, President Forman and Maggio held another meeting of the employees." Forman stated that the factory was losing customers and that they couldn't continue to lose customers. He went on to say that he could take the Gibraltar plant and move it into one corner of his plant in New York and forget about it. I credit Cox that Forman also stated that there was no one going to put a gun to his head and force him to do some- thing that he did not want to do. Cox further testifies to a meeting of employees conducted by Forman on September 29, but all Cox recalls is that Forman said that if the facto- ry closed down employees could feel responsible because he intended to keep the factory open. 2. Case, Inc. a. Upper South's campaign, the request for recognitiion, and the election Commencing about March 1976, Case's employees were solicited by mail to sign authorization cards. As will be related hereinafter in this decision, several did. Actual on- the-spot organizational efforts of Upper South commenced in July, when union representatives came to the area and began conducting an active campaign during which several meetings were held, commencing in July and running through the election. By mailgram of September 13, Upper South requested recognition as the collective-bargaining representative of Case's employees. The Company re- sponded by a letter of September 15 from its attorney, Is- rael, wherein he requested that if the Union was claiming representative status that it file a petition for an election. Upper South filed a petition for an election in Case No. 9-RC-11709 on September 21. Thereafter Upper South and Case entered into a Stipulation for Certification Upon Consent Election Agreement, which was approved by the Regional Director on October 19. An election was held on November 16 in a collective-bargaining unit consisting of "all production and maintenance employees including shipping and receiving employees employed by the Em- ployer at its Olive Hill, Kentucky location, but excluding all office clerical employees, professional employees and l I credit Israel's testimony that he was not present at this meeting and conclude that Cox and Freize confused his presence at this meeting with his presence at later negotiation meetings during which they were members of the union committee. guards and supervisors as defined in the Act." I find this stipulated unit to be an appropriate unit for bargaining as required by the National Labor Relations Act. The employees cast 94 votes for Upper South and 97 against. However, there were 9 challenged ballots, which are sufficient in number to affect the results of the election. Louise Walker, Betty Goodan, Woodrow Burchett, and Elva Duncan were challenged by the Union on the ground that they are statutory supervisors. Beverly Pidgeon, Fran- cis Webb, and Bernice Porter were challenged as office clerical employees, and Juliette Haslebeck and Walter Sherman Butler were challenged on the ground that they were not employed in the appropriate unit. Subsequently, at the hearing in the instant case, the parties stipulated that Louise Walker was at all times material a supervisor within the meaning of Section 2(11) of the Act and not an eligible voter. Accordingly, the challenge to her ballot should be sustained. The parties also agreed that Juliette Haslebeck was an employee in the collective-bargaining unit on both the eligibility date and the election date and, therefore, was an eligible voter. Accordingly, the challenge to her ballot should be overruled. On November 22, Upper South filed objections to con- duct affecting the results of the election which have been consolidated with the unfair labor practice cases before me for hearing and are discussed hereinafter. b. The remaining challenged ballots The General Counsel and the Charging Party contend that Walter Sherman Butler does not share a community of interest with other unit employees and is therefore not an eligible voter. Additionally, the General Counsel asserts that, at best, Butler is a casual employee who only worked in a sporadic fashion doing nightwork after he returned from sick leave. The Employer contends that he was an eligible voter, who worked regularly after returning from sick leave. The Employer's records and the composite testi- mony in the record relating to Butler establishes that he was employed in the cutting room, which is clearly within the unit, prior to taking sick leave in early 1976. He re- mained on sick leave until on or about October 9, when he returned to work and thereafter worked nights doing build- ing maintenance work after all the other employees had gone for the day. He reported directly to Gene Case, the Company's president. The General Counsel points to the fact that Butler received no pay for the workweeks ending July 31 through October 2. This is of no moment, because Butler was on sick leave throughout that time and it is well established that a unit employee on sick leave is entitled to vote in a National Labor Relations Board election. Gener- al Counsel also points to the amount of Butler's earnings during the October 9, 16, 23, and 30 pay periods, which were respectively $15.16, $38.09, $87.88, and $78.44. With respect to the first pay period questioned by the General Counsel, I am persuaded that Butler only worked I day and therefore the fact that he only drew a pay amounting to $15.16 is not at all surprising. I find no explanation in the record for the fact that he earned only $38.09 during the October 16 pay period, but note that his earnings dur- ing the October 23 pay period were identical to those of 804 ties that the only control that Burchett may exercise over other employees in the cutting room, if in fact he exercises any. is that derived from his superior experience and not from any supervisory status. 14 In my opinion he is not a statutory supervisor. He is therefore appropriately included in the unit, and the challenge to his ballot should not stand. Betty Goodan did not testify. She commenced working for Case during the payroll week ending September 25. According to Production Supervisor Betty Wilburn, she hired Goodan as floor help in training to learn how to match bundles and to "more or less get the feel of the floor" because Wilburn wanted to see how she would react if Wilburn decided to make a supervisor out of her. Wil- burn states that when Goodan was hired, she was told that the job was a trainee position for a supervisor, to the extent that if Wilburn thought that she was capable of being one she might be made one. Wilburn asserts that about the first of October she told Goodan that she was a trainee super- visor in the cold-weather coat unit and placed her in that position. Goodan was paid by the hour from the time that she was hired, as opposed to other employees in the cold- weather coat unit, who were paid on a piecework rate, ex- cept for the bundle boys. Acknowledged supervisors Sable Carroll. Edna Clark, and Velda Roe are paid by the hour. According to Wilburn, after the first of October, Goodan was in training to be a supervisor and performed duties that Wilburn would expect her to do as a supervisor, in- cluding checking to make sure that machines needed repair before she wrote them up for mechanics to check out, giv- ing instructions to the girls on how to perform the work, and checking the quality of the girls' work. In summary, Wilburn states that Goodan "did the jobs that any super- visor would do provided she was qualified." The Company concedes that Goodan became a supervisor in February of 1977, but contends that prior to that time she had none of the supervisory authorities enumerated in Section 2(11) of the Act. Throughout the time that Goodan was a "trainee supervisor," the only persons with any supervisory authori- ty having contact with the cold-weather coat department, other than Goodan, were Wilburn and Quality Control Supervisor Louise Walker. Walker is in charge of all the quality control in the plant and Wilburn is the overall su- pervisor of plant production. There are about 25 unit em- ployees in the department, and Betty Goodan was the only person with any indicia of supervisory authority who worked in that area on a regular and continuous basis. According to Anita Wilburn, whom I credit in this regard, when she returned to work from pregnancy leave on Octo- ber 5 she was assigned to work on a binder by Betty Goo- dan, and thereafter Goodan told her what to do and trans- ferred her from job to job. Furthermore, Anita Wilburn credibly testified that Goodan did no manual work and told Anita Wilburn that she was a supervisor. I further credit Anita Wilburn's assertion that when she went to work on the binder she was told by Betty Wilburn that if she needed anything she should ask Goodan who was in charge. Anita Wilburn was discharged on December 10, 1976; therefore her contact with Goodan ran from October unit employees Rose, Boggs, and Carroll, and that more than 50 other undisputed unit employees were paid less wages. Similarly, more than 50 undisputed unit employees received less wages during the payroll ending October 30 than Butler did. I am persuaded that Butler, after he re- turned from sick leave, worked nights throughout the eligi- bility period performing night maintenance work on the plant; that such nightwork was more expeditious in that the absence of employees made the various facilities which he renovated and repaired far more easily accessible: and that the postproduction hours constituted an appropriate period to do such work in such a manner that it would not interfere with production. The parties used the broad lan- guage of "all production and maintenance employees in- cluding shipping and receiving employees" when stipulat- ing the unit involved herein. Absent evidence of any intent. either testified to by the parties or shown by the specified exclusions in the unit itself, to exclude the night mainte- nance man, I must conclude that it was the intent of the parties to include "all" maintenance men."2 Butler's wages fall in the range of many of the employees in the bargain- ing unit, and there is no evidence that his other benefits, if any, are different from those of unit employees. The only real difference is that he works nights under the direct su- pervision of Gene Case. I do not believe that these circum- stances are sufficient to warrant excluding him from the collective-bargaining unit, nor do I believe that it is con- trary to either the Act or any' established Board policy to include him in the unit. For all the foregoing reasons. par- ticularly the bargaining unit description, which has not been contested by either party, I conclude that Walter Sherman Butler was employed as a night maintenance man throughout the period of eligibility for voting and was at the time a member of the stipulated appropriate bargaining unit and an eligible voter. I shall therefore recommend that the challenge to his ballot be overruled." Elva Duncan is a mechanic. The only difference between his wages, hours, and working conditions and those of the other mechanics is that he is salaried and does not punch a timeclock, whereas they are both hourly paid and do punch a timeclock. Neither of these circumstances is suffi- cient to constitute him a supervisor, nor does the record reflect any evidence whatsoever that establishes that he does have or exercise any of the supervisory authorities set forth in Section 2(11) of the Act. I therefore conclude and find that Elva Duncan is not a supervisor and that the challenge to his ballot should be overruled. Woodrow Burchett is the most senior employee in the cutting department. He performs the same duties as other employees in the cutting room, but by virtue of his superior experience he is capable of doing all the duties in the de- partment. Burchett receives the highest hourly rate in the cutting room, which is $3.25, as against the next lower rate. which is $3.10. I found Burchett to be a thoroughly credi- ble witness who was open and forthright throughout his testimony with no hint of evasion or equivocation, and I conclude from the composite testimony relating to his du- 12 Donald Carroll Metals, Inc., 185 Nl.RR 409 (1970): Pondc'rowl H,tel Co. 172 NLRB 1440 (1968), Sevens gan Lines O5,oda. Inc,. et al. 207 N.RB 383 (1973). 11 Bulgle (wt n. AIrlon & .irmn Se'rlle. In . et al. 132 NLRB 1098. I100 11961) CASE, INC. 805 DECISIONS OF NATIONAL LABOR RELATIONS BOAR[) 5 to December 10. Dewey Wilson testified that Goodan was Anita Wilburn's supervisor, who wrote up the defects on the machine for repair. Quality Control Supervisor Louise Walker testified that Anita Wilburn repaired re- turned bundles of goods with the help of "supervisor" Bet- ty Goodan. Similarly, employee Myrtle Sammons, an in- spector in the cold-weather coat unit in October, November, and December, refers to it as Betty Goodan's unit. Likewise, Kathy Dunaway. who was employed from August 1976 to January 1977 as a binder, testified that Goodan told her what to do when she was working as a binder and checked her work. Beverly Knipp states that Goodan told her what to do each morning. Knipp was employed from October to December. That Goodan was the only person with any indicia of supervisory status in the cold-weather coat unit on a regu- lar basis, except for sporadic visits by3 Walker and/or Betty Wilburn, and that she was paid on the same basis as the other supervisors, was clearly considered by employees in the unit to be their supervisor, and, as Betty Wilburn con- cedes, did the jobs that any supervisor would do, combined with the credible evidence that she directed employees in the performance of their work, convinces me that Betty Goodan has had and exercised the authority, in the interest of Case, Inc., to responsibly assign and direct employees in the cold-weather coat unit since about October 1, 1976, a supervisor within the meaning of Section 2(1 1) of the Act. Bernice Porter, Beverly Pidgeon, and Francis Webb worked in an enclosed office away from the production floor and adjacent to the office of Company President Gene Case. Porter bears the title of office manager and takes dictation and types correspondence for Gene Case. Included in this correspondence have been letters from Case to the Company's attorney concerning labor matters. Porter maintains the personnel records, completes the pa- pers related to workmen's compensation and files claims thereon, and maintains the Company's Blue Cross and Blue Shield records and the quarterly reports required by the Department of Health, Education, and Welfare show- ing the quarterly earnings of employees. Additionally, Por- ter reviews and retains custody of the timecards and pre- pares the payroll. She also prepares the various shipping documents related to customer orders and corresponds with customers of the Company with respect to their or- ders. She has custody and control of the various invoices that the Company prepares. Porter is the only one of the three women who uses the Telex and Quip machines in the office, whereby messages may be transmitted telephonical- ly after they have been typed in an appropriate manner. Bernice Porter is clearly an office clerical employee who also has some duties which may render her a confidential employee, inasmuch as she types letters concerning labor matters on behalf of Gene Case and maintains the person- nel records. Beverly Pidgeon has sole custody and control of employ- ees' production sheets, which reflect the amount and type of work each employee is performing, and spends about 95 percent of her workday transferring this information from production sheets to a ledger book which she keeps in her custody in the office. Her contact with the people in the bargaining unit consists of delivering messages to employ- ees and contacting them to correct production sheets which she finds to be erroneous. In addition, she takes inventory every 3 or 4 months, as does Francis Webb, to ascertain how much material the Company has on hand. This work takes from I to 3 days. The records of the current invento- ry are kept in the office where the three women work until such time as new inventory is taken. The old records are then filed by Bernice Porter in the shipping department. There is no evidence that Pidgeon performs production or production-related duties sufficiently extensive to qualify her as a plant clerical employee. I find that she is, and has been at all times material, an office clerical employee ex- cluded from the agreed-upon bargaining unit. Francis Webb clears any time that she wants to take off with Bernice Porter, after first requesting it from Gene Case. Similarly, she calls Bernice Porter and reports when she is not going to be in to work. Webb's primary job involves preparing job progress tickets to be distributed to employees. She does this on the basis of orders received from contractors specifying what the customer needs and what result is wanted. She keeps records of how much ma- terial the Company receives and how much is used in the plant. and how many garments are cut therefrom. Further- more, she records all the components that are produced for each contract and keeps those records in a record ledger in the office. Although Webb prepares the job tickets and duplicates a sufficient quantity so that she may distribute them to the girls in the cutting department for attachment to each garment, it appears that her contract with the pro- duction employees is otherwise limited to times when she goes to the timeclock to record the number of hours worked by each girl and the number of pieces each pro- duces. This data is recorded on a sheet which Webb keeps in her desk. Additionally, she goes into the plant frequently to deliver messages or pass out insurance papers or similar personnel-related documents. Webb asserts that Bernice Porter is her supervisor as well as the supervisor of Beverly Pidgeon. Inasmuch as Webb works under the supervision of either Porter or Gene Case directly and does not appear to report to any production or quality supervisors, and in view of the fact that her duties are almost totally related to office recordkeeping and scheduling, as opposed to plant production work, I conclude that she is an office clerical employee and an ineligible voter. c. Thel' discharge of A4 nila W ilburn and alleged independent violations of Section 8(a)(l) of the Act The complaint alleges various conduct of Gene Case. Betty Goodan. Louise Walker, and Wallace Forman to be violative of Section 8(a)( 1) of the Act. Inasmuch as neither Goodan nor Forman testified before me. I have credited the testimony of witnesses relating to the incidents alleged in which Forman or Goodan were involved, unless such testimony is internally inconsistent or controverted by other more credible evidence. Furthermore, I find Gene Case's testimony to be unreliable in view of his repeated failure to recall ans details of contested events which are of considerable significance and his penchant for general de- nials and conclusionary statements, as opposed to detailed testimony. His recollection is so faulty that I do not credit 806 (ASI. IN( it when controverted by credible testimonv from other wit- nesses. On or about October 14, Betty Goodan approached Ani- ta Wilburn where she was working at her machine and asked her if she had ever worked in a place with a union. When she received the answer from Wilburn that she had not. Goodan asked Wilburn if she knew that she was hurt- ing Gene Case a lot and said that Case was disappointed in Wilburn for wearing a union badge. The following day. supervisor Louise Walker spoke to Wilburn. who was wearing a union button. According to Wilburn, Walker asked her if she knew what it meant to work in a place where there was a union, and then said that she was hurt- ing Gene Case's feelings because he thought a lot of Wil- burn and had helped her a lot when she was pregnant, Walker continued, testified Wilburn, that Wilburn should be ashamed of herself for wearing the button. Walker de- nies talking to Anita Wilburn about union buttons or tell- ing her that she ought to be ashamed of herself for being for the Union, or telling Wilburn that she had hurt Gene Case's feelings because she was in favor of the Union. Walker concedes that she and Anita Wilburn had a run- ning conversation about the Union which carried over ses- eral different times, and that Anita Wilburn had asked her what a union would do for the employees and what it would not do. Walker. who characterizes these conversa- tions as similar to talks between a mother and a daughter, relates that she told Wilburn that she had worked with a union and, unless the union that thes were trying to get in did more for them than the union that Walker had worked for, then Walker saw no reason for it. In view of Walker's acknowledgment that she and Anita Wilburn had a run- ning colloquy about the Union, and inasmuch as her testi- mony does not purport to cover all of the matters dis- cussed, and because her statements reported by Wilburn are of the same import as those of Goodan and Case wAith respect to the personal feelings of Case. and for the further reason that I detected nothing in Wilburn's derneanor that would cause me to discredit her testimony, which is more detailed and complete than that of W'alker. I credit Wilburn's version of the October 15 conversation. On or about October 22. Gene Case came to where Ani- ta Wilburn was working and started talking to her. lie asked her if she knew what it meant to be for the L nmon and if she had ever worked anN place where there was a union. After some discussion bs him of the bhills that he had to pay and the contract that had to be signed. he said that if the Company and the Union could not reach agree- ment "they would have to pull the contract out." he fol- lowing day, October 23, Case again talked to Wilburn at her work station and told her that he had thought that she was a friend of his. She replied that she thought she was. Case went on to say that his wife thought a lot of Anita Wilburn and that the, had talked things over and his wife had said that Wilburn would make a good office girl. ( ase continued that his wife was apparently a better friend to Wilburn than Wilburn was to her, and that Anitl Wilburn could not be a friend to him and to the l nion too. At this juncture he pointed to the union badge xx hich she w as wearing during the consversation. On October 25, Case, in Anita Wilbur n's presence, asked 807 emplosee I helma Closer to tell W ilburn w hat it was like to work in a place ,where there was a union. Case's commnent was "You can tell her because she does not listen to me." (iloser then told Wilburn about places where she had workcd s heie there w.as a union, and said that there was a lot more freedom at ('ase than at those places. Later on the same da,. Gine ( ase called Anita Wilburn into his office and talked to her in the presence of supervisor Betty Wil- burn. (Case asked if Anita W'ilburn would gise her union badge to hin min exchange for a company badge. She re- sponded that she would rather not, and he asked if he could doclor it up b) putting a piece of paper over it. She said that he could not, and he then asked her to iele the button to him. She asked him if he w,ould then thrki, it in the trash can. and he rejoined. "Isn't that where it he- longs?" Prior to this last conversation with Aniia Wlilburn. Case talked to emplo ee Brenda Goats on or about ()ctober 22 lie first came to her shortly before lunch, when Beit> Wil- burn was present. Bett, Wilburn did not testify with regard to this incident. Case stated that Goats would look better without the union badge that she was wearing on her blouse. and that then would get along a lot better without a union. that the, didn't need a union, and that he would prefer that she took the badge off. Later the same data after the 2 o'clock break. (Case returned to her machine and asked John [fall, mechanic, to tell Goats that it Vould be better to vote against the Union. There is no esidence in the record as to what Hall said to Goats, if anything. On or about October 29."f Gene Case came to employee Bohbb Mlorean's table and asked her w;hat had been said at the union ncetiinL the day before. Morgan told hin. ''noth- ing." to which he incredulously replied. "they did not say anything." and. after she anssxered in the negatise. went on to sas, "'You wasted sour time." '' er onlk rcpl was "yes." Ah ut 3 or 4 weeks before the National laihNor Relations Board conducted the election of Nosember 16. Betis Goo- dan asked ermploee Kath' Dunawia, howe she was going to vote. and if she was going to sote for G(enL, and if she would wear one of Gene Case's badges. I)unawIa replied that she wkas undecided. Dunawa¥s was not wearing a union badge and had not signed a card for the t'nion at the time. About 2 or 3 xkeeks before the election. (icne ( ase went to the machine of emplloee Josephince hlolblook and said, "I thought that , *e wkcre friends." to wAhich she rteplied that she guessed that thee ecre. and thtat she w)as mnaking produc- tlon)l. Case thlle said tlhat ('or dens Mlanufacturing Cotipa- nit at Olise [ ill haid said that thtie,,s ou)l not haue hter. and walked off. iolbrook ,as \wkearing a union hutton at the tilme. I or about 2 \Reeks befori the electiorn onl Noenmiher 16. Anita 'lihurn ssorc a T-shirti that hald it unioln label on tilhe front oif it alid was lettered on the hack to read "DI)ea (Cinc: If ou hbu mei. ,le t Col eTimicnet will get thee ''" .bout thie tiist lf NoXcliherl. IBcttx (iodliall a.ske'd %Vl bulil if she tild put ] teC letteUinll on th(le back of fher 'I -shli t, and asked ' 41(. ,\ :lhtt I . ,. Hid I tm111\ ,',,q ! [ 1. ,'[/i Xrt [a.1 ' t tI 11 .I 11 '' LI' . 'i. 1: 4- lI La Io i "I ' :k, )1't1 1 OIC CJ~[I )k lkJl :I ~ L ~i;!i ll~~ 11. ~;;; k ~ lC t tll() l,!C[d DECISIONS OF NATIONAL LABOR RELATIONS BOARD who had done it when Wilburn said that she had not. Wil- burn refused to tell her. Goodan then said that Gene Case had thought that Wilburn had done the lettering. Some time between November 3 and November 16, Gene Case asked employee Sina Yonts what she thought about Gibraltar. She asked him what he meant, and he replied that it looked like the organizers had egg on their face and had made a lot of promises that they were not fulfilling. Case further commented that he thought that it was all over at Gibraltar, that he knew it and that Yonts knew it. Yonts replied that she did not know it. Case re- joined, "Oh, come on, Sina," and walked off. During the preelection period, Gibraltar's president, Wallace Forman, talked to the employees of Case on sev- eral occasions and transmitted various letters to them and to Gene Case, which Case reproduced and distributed to the employees. In early September, all the employees were called together in the cutting department, where Wallace Forman and Gene Case conducted a meeting. It appears that Case said little and that Forman did most, if not all, of the talking. He introduced himself as the president and owner of Gibraltar Industries, and also told the employees that he owned the building that Case was located in and that Case received most of its work from Gibraltar. He emphasized that the Union was not really interested in the Gibraltar plant, but that its main objective was to organize Case. He then made some references to a union boycott against the Farah company and remarked that while Farah could survive a union boycott a company as small as Case would not. He continued that the plants doing civilian work could survive under a union because they could raise prices, but that plants doing Government work could not survive because there were set bids under Government contracts. In this connection, I note that Case has consid- erable Government work. I credit Sina Yonts' recitation of these events, inasmuch as Forman did not testify and Case stated that he recalled but little of what went on at the meetings where Forman spoke. On November 3. there was another meeting of all employees called. Forman again conducted this meeting. He again introduced himself as president and owner of Gibraltar Industries and stated that he and Gene Case had made a decision concerning the cold-weather jackets that Case would be doing and that he was going to let them go ahead and start working on them. Forman continued that if the Union came in and an agree- ment could not be reached between the Company and the Union, and a strike resulted, and if Forman saw that they could not complete the contract, then he could pull the work out of Case and give it to someone else. He also said that Gene Case had the same alternative if he saw that Case was unable to meet the deadline, and that Case in that event could ship the work back to Gibraltar for some- one else to do. Some employees asked Forman what was happening at the Gibraltar plant, and Forman told them that the Union had won the election nine to eight and "it seems there is one foolish person or the election could have gone the other way." He then went on to discuss the nego- tiations with the Union at Gibraltar and told the employ- ees that Gibraltar had been presented with a 26-page de- mand, including a 50-percent wage increase. He said that he could not possibly meet the Union's demands and that it looked like the Union had egg on their face because they had promised the employees at Gibraltar benefits that they could not fulfill. He elaborated that the only way that he could see that a union could come out this looking good would be either to pull the people out on strike, which in turn would cause the plant to close, or blow it up. He then said that either way it didn't matter because he was in- sured. Another meeting of all the employees was called on No- vember 15. the day before the election, where Forman again did the speaking with Gene Case present. The fol- lowing recitation of what transpired during this meeting is a composite of the testimony of the employees Yonts, Mor- gan, Teresa Binion, and Anita Wilburn, all of whom ap- peared to be testifying honestly to events as they recalled them. Forman explained National Labor Relations Board election procedures to the assembled employees and dis- played a sample ballot to them. He advised the Case em- ployees that the Gibraltar employees were not working, that Gibraltar and the Union had not reached any agree- ment in their negotiations at the time, and that, unless Gi- braltar and the Union came to an agreement, the plant would probably go out of existence. Some unnamed em- ployee asked Forman what was happening at Gibraltar and he stated that Gibraltar employees had changed their minds about the Union. According to Yonts, he said that these Gibraltar employees were trying to get rid of the Union, and according to Morgan, Forman stated that all the employees, except one, that had voted for the Union had changed their minds. Whichever version is accepted, Forman advised that employees at Gibraltar had changed their minds about the Union. At this point in the meeting, Yonts spoke up and said that she had a document from nine employees at Gibraltar (apparently the nine who had voted for the Union in the National Labor Relations Board election) which said that the employees were not trying to get rid of the Union. Forman countered that he had newer information than hers. Forman read the employees a letter, apparently addressed to a shop steward in one of his other plants, that stated the union dues had been raised. Some- one asked him what the shop stewards were earning in the plant he was talking about. He replied that he could assure the employees that the people in his union plant were prob- ably making a lot less than some of the Case people were. He also said that there had been a decision made by the AFL-CIO that the ILGWU had been found guilty of raid- ing and would have to cease organizing at Ralco Company. Louise Binion spoke up and said that no decision had been made on the matter yet, but Forman insisted that his infor- mation was correct and that sooner or later it would be found out by the employees. Anita Wilburn began her employment with Case in mid- March 1976, and continued working until she went on ma- ternity leave in August. She signed a card for the Union on September 20 and returned to work from maternity leave on October 5. Prior to taking maternity leave she had re- ceived no warnings about her work, and there is no evi- dence that her work was other than satisfactory prior to her taking leave. Quality Control Supervisor Louis Walker gave Anita Wilburn her first oral warning on November 5 for bad 808 ( CASE. IN( work and her second oral warning on No vember 9 for the same reason. On November 19, l.ouise Walker and Pro- duction Supervisor Betts Wilburn issued a written xarmine to Anita Wilburn which indicates "bundle going hack 2nd time-3rd warning-following procedure" Anita \' ilburn was then suspended for 3 day's of the following woirkAeek. She was ultimately discharged on December 10. 197h. and Respondent admits a failure to since offer her reinstate- ment. Each of the warnings, the suspension. and the ulti- mate discharge were for the same asserted cause. On each occasion. the discipline was imposed because a bundle of garments had been returned to Anita Wilburn the second time for repairs. The record is clear that Anita s\ ilburn did receive a bundle of garments. on which she had been work- ing, back from inspection twice on each occasion that she was warned, suspended. and subsequentl\ discharged. \ll of these defects were found by inspector MNrtle Sanimions. a union employee. Wilburn concedes that when she got the first oral warning L.ouise Walker told her to ',alch her work. Myrtle Sammons crediblI testified that after Wil- burn returned from her 3-day layoff she told her to look at her work good. because if it did not pass inspection the second time Sammons would have to return the bundle to Louise Walker. Anita Wilburn also acknow ledges that. if- ter she received her suspension. Louise Walker told her that if a bundle came back for the third time the\s would have to discharge her. I construe this comment of Walker to mean, in the context of the practice regarding returned bundles, that if the bundle did not pass inspection twice. and was brought back to Wilburn after she had worked on it twice, this last return would be the third time and this woultd occasion her dismissal. The employer presented uncontro- verted evidence that there had been a qualit) procedure. providing for discipline and certain circumstances, in effect since 1973. The written policy is set forth in its entirets below. INSTRUCTIONS FOR ACCEPTANCE OR REJECTION A sample of five end items is drawn from each bundle on a randombasis. If one defect is found the entire bundle is given to the floor supervisor who will return it to the responsible operator. The operator will screen the entire bundle and make the necessary repairs. The bundle is returned to the floor supervisor who hand carries the corrected bundle back to the quality auditor. The quality auditor draws another sample of five items from the bundle, if found acceptable, the bundle is moved to the packaging area. If one or more defects are found. the rejected bundle is given to the Production Manager, who will take the bundle back to the operator. The Production Manager and Plant Manager review the defects with the operator. If the cause of the defect is due to carelessness or poor workmanship, the following action will be taken: I. The supervisor of the component assembls is ad- vised of poor quality of the operator. (First) 2. Operator is given oral warning. (Second) 3. Operator is given a written warning. (Third) 4. Three day la) off. 5. Dismissed. Beserl K nipp ais dilsc haiitged for poor %ork on ahbout December I after receilns a Ir . rittl ar-nlll .ine ndI .a 3-da\ slspenslHion. aind Kaths l)unlaias \ was tlired on .lanuars 14. 1977. aitter she hadl gotten a .irltten sarrilnm and a . -da\ suspensionl. I hils. tihere ais at least one disclharge belore and onel alter \.lbih ln . uirLe u ller Lsltallil tahI e stilin pr Icc- dUres. loulse ino 11111 testiftled that shle has\ recCil IssO or.il warnnlllllgs iatlld onel s rltteln armni. and staite that she kno1ss tlhtr thler-e is i pitcedil \r hercbs an operatorl gets a certain;ll 1lntHIerl f \.r nll s, thenl a 3-da suspIension. aInd then is sullect to ttermnllaltion ftor the next w;arilli.g I111- plo cee Bohb\ .Jo Io{I-g.ilr acLknowledges that she has re- ceed c \ i r ailin ulider the silne s' stemn of orail and \rmitten arnirillg a.nld was told of thlis ss steml hen she first started to work. abotut 3 s ears ;ago. includling the pro isions for suspensoii n ald discharge. She understrands this sssteml to be tha.t oral varnings come first. and th;it an operatlor gelt one oral x.arlnllll before shre gets a w\ritten Shcarniln. C believes thlat operator*s ale suspended after the? get three rittllen arllnells. Alice J.ll S is ilot Wx aire of all tile LdetA;il of the ;rrningr anld isciplilre s'stenm. but stales tlihat her ullnderst;rllcir is Itlrlt there is Ia prcedtlurc llher eb l op- elrato) gets all or.il \;atlrnirl. a1 ritticn w.irnin it. ird after two or three \a llinrgs is disirlisscc. Anita V ilbIuril contends th;at her difficult\ in producinTg tgood \work akis a result of tihe fact that her nachinle needed repair. and asserts that she haIl adsvised Bett \ \:ilburn. (iene ( ase. Belltt (ioodaln. and l ouise Wailker thart she sas havting problems ,Ath her machine. Anita Wilburn furlthe testifies thait at one tine I ouise W alker told her tha;t If she was ha\ing trouble t ih tier machtine. W'alker woulcd Ver her anolther one. but thit she told Waliker that she pre- ferred to stli, with her orwn mniachine. Aiddlilonrlll. she cl;lilrs that tile da' before she s;as dischrIrged sIle coll- plained to V alker about her maichine and tha;t Waliker told her that tihe machine behilnd ilbhurln seemred to be in gtood order aind .asked her if she wa;nted to go hack and tr' It. Anita WVilburn wernt back and tried it out and. according to her. told Walker that she did witant the other machine. and contilued to work oni her o n machine the biggest part of the day. She avers that. during that day, Betts Wilburn and G(ene C(ase came to see her. and Case asked her if she wanted the other miachine. Betty Wilburn assertedls told her that the' s ould move it up there in the morninit for her use. According to Anita W ilburn. her machine .as not changed prior to her discharge. Bettv Wilburn testified that she had spoken to Anita W ilburn about a month and a. half before her discharg e because her work had been of po)or quality. She further sa's that she offered Anita Wilburn another machine at the time. but Anita stated that she would rather stas on her own because she liked it better. Betts Wilburin deenies that Anita had complainted to her prior to that time that she was having machine troubles. and says that she offered her the other machine because she was having quality problems and thought perhaps she would do better on another machine. She states that after that time Anita Wilburn did not complain to her about the machine. and that she did not thereafter offer the her aln- other machine. Bert' Wilburn impressed me as more cer- tain and sure of her testimons than Anita Wilburn. and I credit her where their teslimons conflicts. Similarly. I 8(9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credit Betty Wilburn's testimony that after the 3-day lay- off, on an occasion when Anita Wilburn got a bundle back the first time, she approached her and told her that if it took her a half day to go through the bundle not a word would be said to her, but that Anita Wilburn should look at every garment that she put out, and if it took her a half a day to get it right, it was all right with Betty Wilburn. In crediting this testimony of Betty Wilburn, I note that Anita Wilburn testified that she does not remember whether Louise Walker or Betty Wilburn talked to her when she got the November 19 warning, which was practically simulta- neous with her suspension, but concedes that they could have talked to her. Kathy Dunaway, who was fired for poor workmanship on January 19, 1977, worked on some five different ma- chines. including Wilburn's, according to her, and she states that she had some trouble with the machine. How- ever, although she first asserted on direct examination that she saw the mechanic repairing the machine that had for- merly been Anita Wilburn's more often than others, she testified on cross-examination that she does not know how many times any of the other operators' machines were re- paired. She also concedes that she got her written warning and her 3-day suspension after Wilburn was fired, and she was not working on Wilburn's machine at the time. Me- chanic Dewey Wilson testified that he made no more re- pairs to Anita Wilburn's than to any other single-needle binders that he worked on. He also recalls setting up a machine for Anita Wilburn at her request, and that after she used it for about an hour she went hack to her old machine because she said that she liked it better. He does not recall ever setting up another machine for her. Accord- ing to Wilson, Anita Wilburn's machine has undergone no major overhaul since she was discharged and was still in operation undergoing normal repairs about as much as any other machine. It is his belief that Janice ('lay has been on the machine every day since Anita Wilburn left. Janice Clay testifies that she worked on Wilburn's machine from February 1977 until the time of the trial and had only one bundle of clothing returned to her for the second time someday approximately in March 1977, with a notation attached which said, "Second time, Louise Walker." She had not had any bundles returned to her twice since that occasion in about March and continues to work on Anita Wilburn's machine. Clay also states that this was the only time a bundle was returned to her while she was working on that machine, that the mechanics had been working on it a couple of times a week, and that she did not have any bundles returned twice during the time that the mechanics were working on it during her Ist month on the machine. Clay received no warning for this returned bundle in March. One of the warnings received by Louise Binion was a written warning from Louise Walker dated June 11, 1976. No evidence was proffered as to the dates of other warn- ings issued to Binion or other employees. d. Authorization cards and the question of union majoritY status During the course of this campaign, the Union secured a total of 109 prima facie valid authorization cards, which were introduced into evidence. The first one was dated March 17, 1976. and the last November 1, 1 9 7 6 .i7 Two types of cards were used during the campaign. The first was a short form: 18 the second contains more language on its face and lists the benefits to be gained from supporting unions on the reverse."' Preliminarily, the Respondent con- tends that the cards are invalid since they bear the heading "International Ladies' Garment Workers' Union, AFL- ('10" and do not include the name of its division, Upper South, which is the Petitioner and Charging Party claiming the refusal to bargain. This contention is disposed of by the simple fact that the Board has long held that authorization cards are not invalid merely because the International Union, rather than its subsidiary which seeks recognition, is named as the bargaining representative on the card. 20 A hstI of Ihe enlplo yees sgiing cards. togelher with the dates thes ,itgrncd is ittached ilo this Detilsion as Appendix A. [Omittlled from publica- tli n I the card first used b tthe tnlon, primardi al mail solicilatian sot far as the record shu- s reads ,is follo- s II11 R I I NMl [ [ 11 AI ,I I'I , l k I (II , S I N- Is AlI ( Iit Phone: (301) 685-0884 I North Howard Street Baltimore. Md. 21201 Authorizatiotn for ('ollecttie Bargailing 1. ol min oin free .ill. hereby authoriue the liternatinlil I adies' (iarmllent Wrorkers ' I ilion, ilts tgentls or reprcsenlt;latie to act for me as :I cilectice hbargainling Igents in ;tll matters pertaining to ra;lts i(f pay. vgies, hours of emplotmetit or in other conditions of emplo-nment Signature I odas's D[)te Add ess ( itN State Zip Phone Job inmplosed bh Iow I ong iEmplot,ed'' Age: t'I he frolnt. or authorization portion, of this card reads as follows InlterCnafl nal l dies' (;arment Workers' inion, AFL (CIO Authorizaiou,. Membership and (Check-Off Card 1, of nims trn free ill, hereb authorliz the International Ladies' (irniltient l5Workers' L nlan. ils agenls or representlaties to act for me as a coileitic bhargaining agcnt s in all matters pertaining to. rates of pat, vae Is hours of ernploument. itr n other conditilon of emphlo)menl I further herebs apply for membership in ihe i'ltlrc.lAt^i (AiDIr Gis. ulsl . ,irirs INi rt and agree toi be bound bs its (Constitution and BN- I ins I hereby designalte and authorize the isnR',,ATI0n. , It!oArO GAA.tt, *rarnRs iNnOs' its affiliates and iis representanises. lt act exclusivel) as my agent and representallie for the purpose of collectise bargaining I herebh authorize and direct ms) Lrplonert or its successor. or ant IEiltmploer for vwhich I work. Io deduct from my) ages membership duti e, hich include periodic fixed dues. initiatiin fees and assess- menrtsl which I am t obligated to pa;L to the tUnion or an,, of its affiliates ;nid Io par thCe sane 1o t he lnlon or its designee pursuant to the prosi- is l(I of in' CLurrent or future collective bargaining agreement. lthi, authorilzal, iil shall remain in effect until revoked by me and sha ll be irresocaible for a peritod if ine ( I ) tear frilro the date hereof or tIInlt the termninatlion date of an) applicable cullective bargaining agree- nllcit, mhlthever occurs sooner: and unless I revsoke this authorizalion bh senldiig sritten notices to tm) l ampl)ecr and the Ulnion not moire than Iv ten! 1(11 dass and nol less than ten (10) dats prior to the expiraitit of eaich periid of one (I) year. or of each applicable ciollec- tive bargaining agreement between ms Emplover and the Union. hlch- ever occurssooner. this authorization shall beautonmaticalls renewed frim year to year ii;NAL la 'l oda,,'s [)ate Address ( it! State - Zip - Phntie Job l- mplos ed hb [.n, I ong liplo)ied? Age: I g nm(tAerbo(tkr Pl'ttU ( o , /t rii 14 NLRB 514, fn 3 19t 810 manner that she was given the card one day. read it. and then turned it in the following day. She thus knew hwhat was on the face of the card. which clearly designates the lnion as her rcprescntati\ve, and her vague testimony that somel \ orker in the plant who handed her the card told her that there haid to he a certain number of cards signed in order to have a . ote for the Union is not sufficient to de- feat the clear designaition on the face of the card. I there- fore conclude that her card is clearl 5 valid. Although the testimon, of Diana Moreland is somewhat confused because of the lapse of time, her somew hat faulty recollection, and the nature of the leading questions pro- pounded to her on cross-examination, I am convinced from the whole of her testimony that she signed authoriza- tion cards for the Union on both April 14, 1976. and Sep- tember 3. 1976. ( onsequentlN, I will assign the earlier date, April 14, as the date that she originally designated the 1Union, and I conclude. as she testified, that the later sign- ing wvas mterel to corroborate that which she had earlier done. I hus. both of her signed authorization cards in evi- dence operate as aruthorizations to 1Upper South to repre- sent her. Rickie Barker testified that he signed an authorization card on September 20. after he had had it in his possession for a couple of days. and read it before he signed it. On cross-examination he gave an affirmative answer to the fol- lowing question: "D[idn't the union men tell you to sign the card and the card would be used only for an election." He then testified on redirect examination, that he was sure somehod`. used the word "onl,." In the circumstances, al- though Barker did read the card before signing it, and had it in his possession a couple of days before returning it to the I nion I cannot agree with the General Counsel that it is obvious that a union representative would not make such a statement to Barker. even though I do recognize from a review of all the testimony regarding all of the cards that it was not the practice of union organizers in this campaign to make such statements. I therefore credit Barker and conclude that his card is invalid because it was obtained on the representation that it would be used only for an elec- tlon. I have considerable difficulty with Respondent's sugges- tion that the card of Hazel Clark should be excluded on grounds that onls a cop) of one portion of it was available and Ms. ('lark was not available to explain it. because in fact the original card of Hazel (lark was entered into evi- dence after it was appropriately identified by union orga- nizer David Nack. I find that it is a valid authorization card. as it purports to be, because Nack credibly testified that Clark completed the card and signed it in his presence. With the appropriate inclusion and exclusion of various challenged emplosees in the unit, as set forth hereinabove, and with the exclusion of the authorization card of Rickie Barker. the record shows the following number of employ- ees in the bargaining unit during the appropriate workweek ending dates and the number of valid authorization cards extant at the close of the workweek. Respondent contests the validity of the following 18 au- thorization cards on the ground that the signers testified upon cross-examination that they were told the onl, pur- pose for them to sign the card was to get an election: Vicki Brown, Patricia Carter, Kathy Conn. Peggy Felty. Pamela Flanery, Mary Lou Fyfe, Delma Clover. Margaret Green. Helen Griffey, Sheldia Jordon. Mary Newman, Elsie Par- sons, Nora Porter, Glenna Sammons. Brenda Stevens. Vicki Williams, Kathy Adkins, and Pamela Grills. I have carefully examined the testimony of these 18 witnesses in its entirety and conclude that their answers to confusing leading questions, sometimes compounded by a question within a question, and their inability to recall each and every detail of the signing of the card, do not affect the binding nature of the clearly worded documents that they signed, because the evidence fails to show that the lan- guage of the authorization card was "deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature," N.L.R.B. v. (,iis.ec Placing ( o.. Inc.. et al., 395 U.S. 575, 606 (1969): A.4erican ( habh St'.r'cmn.. Inc., 161 NLRB 332, 333-334 (1966). The Respondent contends that the card of Arlene Most- er, which she signed on March 18. is no longer salid be- cause she was terminated from employment on June 7 and then returned to work as a new employee on June 14. I know of no requirement that one who designates the Union as her collective-bargaining representative. and has not revoked it, need renew that authorization after a hiatus in employment, particularly where the hiatus is onls 7 days in duration. Therefore, I conclude that the card of Arlene Mosier, like those of the 18 employees named abhove. is a valid designation of Upper South as her collective-bargain- ing representative. Josephine Back properly identified a photocopy of the authorization card she signed on August 25, 1976. and credibly testified that the reverse was like that of the card referred to above, which recites various union benefits. There is nothing in her testimony. or other evidence. that works to invalidate her designation of the Union as her representative on August 25. and I find that she executed a valid authorization card on that date. Respondent contends that the copy of the front of the authorization card signed by Penelope Keaton should be excluded because only a copy of that portion of the card was available and the signer was not called to testify. Or- ganizer Robert Farber credibly testified that Miss Keaton signed the original card in his presence and that the origi- nal had the same information on the back as other cards which had been received in evidence. I therefore conclude that the photocopy constitutes a valid designation of Up- per South as Miss Keaton's collective-bargaining represen- tative. I disagree with Respondent that I should draw some inference from the testimony of Mars Mabrs that she was told that her union authorization card would he used only to get an election. Mabry testified in a straightforward CASE, IN(' 811 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Week Frnding rlo. In rlnit Vralid Cards Sept. 1 1q2 n .qept. 19 lqOf9 Se)t. 25 105 1O1 'bct. o ln7 103 Oct. q lo 1n02 Oct. 1f onn 103 Oct. ?3 ?r)0 ln2 Oct. 3n onl 1n1 It is readily apparent that Upper South had valid author- ization cards from a majority of the employees in the ap- propriate unit from September 18 through October 30. The record does not contain any further payroll information after that latter date. Because there were no more than 190 employees in the unit during the payroll period ending Sep- tember 18, it is clear that Upper South obtained its majori- ty in the unit on September 15 when it secured its 96th authorization card from Ellen Hicks. The Union's majority status in the appropriate unit thus commenced September 15, 1976, and continued through at least October 30, 1976, in terms of actual numbers of valid authorization cards outstanding. I also conclude and find that Upper South was the duly designated majority representative of the em- ployees in the appropriate unit on September 15, the date that Case, Inc., by its attorney, refused to recognize Upper South. 3. Relationship between Gibraltar and Case The physical assets of Case, Inc., were first purchased from Gibraltar in 1972. Case still owes in excess of $40.000 to Gibraltar as a result of this transaction. Case's business is now carried on in a facility which it leases from Gibral- tar at a rental exceeding $50,000 annually. The Gibraltar home plant in Brooklyn handles the preparation of em- ployees' paychecks and vacation checks for Case in ex- change for a cash payment of $400 per week. This appears to be an arms-length transaction entered into because Gi- braltar has the better facilities for preparing checks and related documents. Case bids against Gibraltar for work, obtains work on its own account, and has in the past refused to do work for Gibraltar, even though it has for some period of time con- tinuing to the present done more than half of its business as a subcontractor for Gibraltar on Government contracts. Both Gibraltar and Case retain the right to terminate any contractual agreements they may have upon the failure of either of the two to comply, or other supervening business circumstance warranting such action. On the whole, I con- clude that Case and Gibraltar are totally different entities engaged in the same type of business, with Gibraltar being one of Case's largest customers. Although the president of Gibraltar was clearly acting as an agent of Case when he participated in making speeches against the Union to Case employees prior to the election, I do not believe that the evidence adduced in this case warrants any conclusion that Gibraltar is an agent of Case as the complaint alleges. C. Concluding Findings I. Unfair labor practices at Gibraltar The General Counsel has shown by uncontroverted credible evidence that Gibraltar's supervisor and agent Ben Maggio did unlawfully interrogate Ollie Ray Cox in July 1976, and again on August 6, 1976, by asking him whether he had heard anything about the Union coming in, by ask- ing him whether or not he had signed a union card and by the question implicit in his statement to Cox that he had heard that some of the employees had signed union cards. I construe the last comment by Maggio to be an inquiry of Cox as to who these employees were. I further find that Ben Maggio created an impression of surveillance when he told Cox in July and again on August 6 that he had ways of finding out what type of union activity the employees were engaging in. Furthermore, I am convinced that Maggio's statement at the August 17 meeting of the employees to the effect that if the Union came in it would be a strike against the employees, combined with his statement that if the Union came in employees might or might not have work, was an overt threat to retaliate against employees if they selected the Union as their representative. I find that the statement that employees might or might not have work, uttered in the context of a statement recited by Maggio that Forman had delivered a message to him that if they continued to lose customers the factory could be forced to close, was meant to emphasize to the employees that the reason for such closure might well be their engagement in protected union activities. I consider all of these statements of Maggio recited above independently and collectively to be violative of Section 8(a)(1) of the Act. Contrary to the General Counsel, I find nothing unlaw- ful in Ludwig's remarks to the employees at the August 17 meeting, and the General Counsel introduced no evidence in support of the allegation that Ludwig threatened Gibraltar's employees with loss of work or plant closure in the event that they selected the International as their col- lective-bargaining representative. An evaluation of Gibral- tar President Forman's remarks to his employees at the meeting called on August 24 persuades me that his com- ments that he could take the plant and move it into one corner of his New York plant was a threat to close the plant because of the employees' union activities. I particu- larly note that Forman told the employees that no one was going to put a gun to his head and force him to do some- thing that he did not want to do. I conclude that this state- ment was in reference to the Union. Reading this together with his other statements, including a statement made by him to another meeting of employees, on September 29, that if the factory closed down the employees could feel responsible because he intended to keep the factory open, I do not believe that in the context of all of Forman's efforts to campaign against the Union his various statements can be viewed in isolation from the entire course of conduct he engaged in, which was clearly designed to defeat the Union. Although it is, of course, not unlawful to be against unions, it is certainly unlawful to either expressly or im- pliedly threaten employees with plant closure or other ad- verse consequences should they select a union to be their 812 published statements of November 3. 1 am persuaded that the transfer of the materials on hand at the Olive Hill plant to the Brooklyn plant. where sleeping bags were not then being produced at the time of the layoff, gives rise to a reasonable conclusion that the Respondent had already de- termined at that time to shut down its Olive Hill facility unless the II.GWU accepted its economic proposals or. al- ternativels, the employees renounced the Union and caused it to abandon its efforts to represent Gibraltar's employees. neither of which appeared likely, and only thereafter maintained an appearance of bargaining with the Union on the matter. Production did not start at Brooklyn until the machinery was transferred from Olive Hill to BrooklNn. commencing in January and ending in March of 1977. Inasmuch as the machinery was still in place at Olive Hill and there appeared to be no urgency in transferring it to Brooklyn. I see no reason for transferring the materials to Brooklyn in November unless the Em- ployer was then contemplating commencing production of sleeping bags at its Brooklyn facility. It only took two men to load the materials on November 5 and 8, and had the Employer not alreadv decided to transfer its Olive Hill op- eration bs that time it would have imposed no hardship on the Employer, so far as the evidence shows, to leave the material with the machines at Olive Hill where production could be rapidly resumed if the Employer were honestly leaving open the possibility of resuming production there. I conclude that the Respondent. faced with a certified col- lective-barganing representative with whom it was re- quired to bargain. did lay off its employees as a tactic de- signed to wrest concessions on economic items from the Union. but also had determined conclusively that it was going to produce the goods at Brooklyn which it had been producing at Olive Hill because it was well aware that the Union could not be reasonably expected to acquiesce to its inflexible demands, nor to abandon its status as collective- bargaining representative. To all intents and purposes, the Olive Hill plant was closed on November 8, and the argu- ment that it was not finally closed because machinery still remained in the building is not at all convincing. Although I am persuaded that had the ILGWU caved in and agreed with all of the Company's demands Gibraltar would have been willing to transport its materials back to Olive Hill for production, I am also convinced that the Respondent real- ized that the Union would not agree in the manner the Respondent wished it to. The retention of the machinery in the plant enabled it to maintain a facade of still being in business in Olive Hill. and was a fact to which to point to support its contention that it was still bargaining over the closing of the plant. which had in fact already happened. In sum. I consider all the bargaining by the Respondent after November 8 to be nothing more than ritual in view of the inflexible position it had taken, and from which it showed no inclination at all to retreat. I am persuaded that the timing of the layoff of the em- ployees was determined by the impact on negotiations and Gibraltar employees that the Employer could obtain from it, occurring as it did immediately after the Employer had unmistakably stated his position and the only conditions upon which he would sign a contract, and solicited em- ployees to renounce the IL.GWU. representative. Accordingly, I find Forman's remarks of August 24 to be in violation of Section 8(a) I ) of the Act. I also view Forman's statement to reporter Dan Tracs on November 3, reported in the November 8 issue of the Olive Hill Times, to the effect that if the employees of Gibraltar would reconsider and vote not to have the ILGWU represent them the Union might decide to pull out, to be a solicitation of Gibraltar employees to abandon the Union which had been duly certified. This I consider to be a violation of Section 8(a)(1) of the Act. inasmuch as it is not only an attempt to undermine the Union. but also carries with it an implied promise, when read in the context of all of his remarks to Tracy, that the plant would not shut down if employees abandoned the Union and caused it to "pull out." The subject of wages and other economic benefits is clearly a mandatory subject of bargaining, and therefore a matter upon which the Respondent was obligated to enter into negotiations with an open mind. It is clear from the assorted statements of Gibraltar's president and the consis- tent position taken in negotiations by the Respondent that it would not discuss these matters, other than to state that it would not change existing benefits: that it entered nego- tiations with a fixed, inflexible position whcih it main- tained throughout the negotiations: and that it was rigidly unwilling to even consider any possible alternatives to its insistence on maintaining the status quo insofar as eco- nomic matters were concerned. Such an attitude is con- trary to the duty to bargain in good faith and, in and of itself, constitutes a refusal to bargain within the meaning of Section 8(a)(5) of the Act.2 ' I agree with the General Coun- sel that the position of Gibraltar that it would be willing to continue operations if the ILGWU would give in to this demand defeats any contention by Gibraltar that its layoff. commencing on November 5 and reaching completion on November 8, was made for valid business considerations. Apart from the fact that the Respondent proffered no pro- bative evidence in support of any conclusion that the No- vember 5 and 8 layoffs were caused by business considera- tions, at a time when it was operating under the very conditions which it sought to extract from the Union as a matter of contract, an analysis of the negotiations, as well as consideration of President Forman's various remarks re- garding the Union and his intentions to cease operating in the event no agreement acceptable to him was reached, convinces me that the layoff was designed, as the General Counsel urges, to wrest concessions from the Union and force it to acquiesce to the Respondent's rigid demands. Inability to pay the wages and other benefits that the Union was seeking to secure in negotiations was not a fac- tor in the layoff, as clearly evidenced by the letter of De- cember 28 from the Respondent's attorney, wherein he ad- vised that inability to pay the money was not the Company's basis for the refusal to better its economic of- fer. In the light of the progress of negotiations and Forman's i' local Union .o. 103, International A.4 ..iilation o,! B[rtdl. S Irm, nill , aoll Ornamental Iron Workers. A FL CIO, and irt agent ('harhle 7'rnpe; (4 4,,, ated General Contractors o(f .4nmrlla Eilaniille ('hlaplr. /m in. 190 NI.RB 741, 742 (1971) 813CASE, INC DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that there is a total lack of evidence of any legiti- mate employer consideration which would require the lay- off of Respondent's employees on November 5 and 8. I further find that the layoff was motivated by antiunion considerations, as exemplified by Forman's various state- ments, and was a device to coerce the Union into accepting the Respondent's adamant contract demands. Accord- ingly, as more fully explicated below, I find the layoffs to be in violation of Section 8(a)(l) and (3) of the Act. I fur- ther find that the Respondent violated Section 8(a)(1) and (5) of the Act by failing to notify and bargain with the ILGWU concerning its decision to lay off and to transfer work, which it implemented on November 5 and 8,22 and by thereafter engaging in sham bargaining with the Union over reopening the plant, having already reached a deci- sion to keep the plant shut down unless the Union would accept a contract agreement agreeable to the Respondent, which necessarily means in this case an adoption of their position predetermined prior to the start of negotiations. I do not agree with the Respondent that the parties had reached an impasse in bargaining at their October 27 meet- ing. At the close of this meeting, there were items that had been reserved for discussion by the Company's attorney with its president, Wallace Forman, and the attorney ad- vised Janis of the results of his discussion with Forman on these matters by letter of November 1. Thus, the parties were still discussing terms of the contract, and impasse had certainly not been reached. Furthermore, assuming arguen- do that impasse had been reached on October 27, it was not occasioned by lawful insistence on a mandatory subject of bargaining but rather was occasioned by the Respondent's inflexible position and unwillingness to seriously consider any alternatives to its economic proposals. Consequently, the Employer cannot rely on impasse as a lawful reason for laying off its employees or shutting down its plant. I regard Respondent's advice to the Union of December 17 that it was going to close the plant as nothing more than a confir- mation of afait accompli. The period between November 8, when the work at Olive Hill ceased, and December 17, when the Company formally advised that the plant was to be closed, was utilized by the Respondent solely to induce the Union to surrender to the Respondent's unlawful bar- gaining tactics in exchange for a reopening of the plant. That failing, Respondent merely confirmed what had al- ready happened when it announced a plant closure. The Respondent's announcement on December 28 that it was prepared to meet with the Union to discuss the ef- fects of the termination and the termination itself cannot be accepted as an expression of intent to bargain in good faith in view of the fact that the Respondent, on January 17, 1977, announced that the termination was a completed matter and that, although the Company would discuss it, Gibraltar did not intend to reverse itself on the plant clo- sure. Furthermore, the Respondent's insistence on bargain- ing in New York City, as opposed to Kentucky., where the plant is located, is not indicative of good-faith bargain- 22 Eagle Material Handling, In.., et al., 227 Nl.RB 174 (19761: P t,,,- trie Motor Transporrarion, Inc., 226 NLRB 1325 ( 1976): Bruce . Kronenbehr- ger and Herbert Schoenbrod d, b a American Needle ' :Noiel/ ( n/lpan,. e at, 206 NLRB 534 (1973) ing. 23 Similarly, the offer to bargain by conference call or mail is not a reasonable substitute for face-to-face negotia- tions. I regard this offer to bargain with the Union only in New York City, or by way of the telephone or mail, to be but another impediment placed in the path of good-faith bargaining by the Respondent, and I believe that this is indicative of the entire course of conduct Respondent has engaged in in this case. All parties argued ably and extensively regarding the ap- plicability of Darlington.2 After a careful sifting of the evi- dence in this case and consideration of the Darlington deci- sion, I conclude that Darlinglon is not controlling because the evidence does not warrant a conclusion that Gibraltar acted to close its Olive Hill plant with the purpose of dis- couraging union activity at Case, Inc. I have no doubt that the transfer of the work at Olive Hill to Brooklyn could not reasonably be expected to have escaped the notice of Case, Inc., employees and had a probable inhibitory effect on their union activities, but I am unable to conclude that the purpose of the closure was to produce this effect. Further- more, I am not at all convinced that the interest of Gibral- tar in Case is of "sufficient substantiality to give promise of their reaping of benefit" from a discouragment of union activity at Case. The tests enumerated in Darlington are in the conjunctive and require a finding that an employer's act meet all the tests before a finding of closure to chill union activity at another location is warranted. Those tests have not herein been met. This case involves not a perma- nent going out of business by an employer, but a transfer of operations to another location to avoid bargaining with the Union on terms other than those that the employer himself set. Forman clearly invited the employees of Gi- braltar to renounce the ILGWU as its collective-bargain- ing agent as a condition of maintaining or resuming pro- duction at Olive Hill in his newspaper interview with reporter Tracy. This interview occurred 2 days before the layoff commenced, and was published on the very day that the layoff was completed. I do not believe that in a com- munity of some 2,100 people this could have escaped the notice of Gibraltar employees. This transfer of work to another plant to defeat unionization and the conditioning of continuation of production on employee renunciation of the Union are both clearly in violation of Section 8(a)(3) and (I) of the Act. I further conclude that Gibraltar, by conditioning bargaining on the work transfer or its effects on employees on meeting in New York or negotiating by, mail or telephone. failed and refused to meet its obligation to bargain at reasonable times and places on these matters and thereby violated Section 8(a)(5) of the Act. 2. Unfair labor practices at Case, Inc. The acts of Betty Goodan and Louise Walker on Octo- ber 14 and 15, respectively, in inquiring into Anita Wilburn's previous experience in unionized plants amounts to interrogation in an attempt to ascertain her sympathies with regard to the Union. Similarly, the additional com- ,(icner l ,lor', ,4 eplancc C'( orporatlotn 196 NLRB 137. 138. , ( (;'astial 1ror Incs. In, . 219 NLRB 1009. 1013 ( 1975). 24 T ,xle uror er, I neon o-f Am'eria i. Darlingtn Manuilatfuring ( o, el at. 380 l S 263 191) 814 CASE. INC. ments by both to the effect that Company President Case was being hurt by Wilburn's union activities and was dis- appointed in her because she wore a union badge are, in my opinion, implied threats of unspecified retaliation if she did not cease her union activities. In so concluding, I have kept in mind that remarks attributed to the chief officer and principal owner have considerably more impact than statements made solely on the authority of a minor or in- termediate supervisor. I therefore find these statements of Goodan and Walker to be violative of Section 8(a)(1) of the Act, because they interfered with, restrained, and coerced Wilburn in the exercise of her Section 7 rights. Gene Case's comments to Anita Wilburn on October 22 were of the same type, with the additional comment that if the Company and Union could not reach agreement they would have to pull the contract out. I conclude this latter remark to mean that some work would be lost. Case's com- ments are a mere extension of those of Goodan and Walk- er, and lead me to believe that he in fact encouraged Goo- dan and Walker to make those statements to Wilburn. I find that Gene Case violated Section 8(a)( 1) of the Act on October 22 by coercively interrogating Anita Wilburn. Case's continued pressure on Wilburn on October 23 also is violative of Section 8(a)(1) of the Act. His comment that Wilburn could not be a friend to him and to the Union too, accompanied by his pointing to the union badge she was wearing, is plainly' coercive and a threat that Wilburn would not be looked upon favorably by Case when it came to granting benefits. I am compelled to this conclusion by Case's comment that he had considered making Wilburn an office girl. His message was clear. It was the carrot-and- stick routine. If Wilburn restrained herself from engaging in union activity, the promise of an office girl job was held out to her. If, on the other hand, she persisted in her union activities, she would fall from Case's good graces and be subject to implied reprisals. Case continued to put pressure on Anita Wilburn by asking employee Glover, on October 25, to tell Wilburn what it was like to work in a place where there was a union because Wilburn would not listen to Case. This was not only unlawful interference with Wilburn's activities, but it was also an involvement of Thelma Glover in the Employer's effort to defeat the Union. Glover really had no alternative than to comply with Case's wishes, and I conclude that his instruction to her coerced her, as well as Wilburn, in the exercise of their Section 7 rights and violated Section 8(a)(1). When, later the same day, Case asked Anita Wilburn to give her union badge to him in exchange for a company badge. or permit him to change it. he was plainly testing her degree of union support and coercing her into abandoning her protected activities, including wearing a union button. Once again. Case violated Section 8(a)(l) by his conduct. Case did not confine his conversation about the Union to Wilburn but talked to other employees. On October 22. he violated Section 8(a)( I) by telling employee Goats that she would look better without the union badge that she was wearing, that he would perfer that she took it off and that they, presumably Case and Goats, would get along a lot better without a union and didn't need a union. Iater the same day, Case once again involved an employee. John Hall. in his antiunion activities b) directing him to tell Goats that it would be better to vote against the Union. Case, by his acts in this instance, clearly' interfered with Hall's right to refrain from antiunion activity and coerced him into interfering with the rights of another employee. The instruction by Case in the presence of Goats and Hall that it would be better to vote against the Union carries with it an implied threat of retaliation if they do not do so, and violates Section 8(a)(1) of the Act. On October 29. Gene Case violated Section 8(a)(1) of the Act by asking employee Bobby Jo Morgan what had been said at a union meeting the day previously. I do not find. however, that this unlawful interrogation by Case carries with it anY impression of surveillance, inasmuch as it was common knowledge that the Union was having meetings. Sometime in late October, Betty Goodan violated Sec- tion 8(a)( ) by asking employee Kathy Dunaway how she was going to vote and if she would wear one of the Company's badges. This is unlawful interrogation by any test. Gene Case's statement to employee Josephine Hol- brook, about 2 or 3 weeks before the election, at a time when she was wearing a union button, to the effect that another company in Olive Hill had reported that they would not employ her violated Section 8(a)(1) because it was clearly calculated, in my opinion, to impress upon Holbrook that her possibilities of continued employment rested solely with Case, since she could not obtain a job elsewhere and. delivered in the midst of an antiunion cam- paign, was also calculated to restrain her from supporting the Union. Betty Goodan's interrogation of Anita Wilburn in early November, regarding the lettering on the back of her T-shirt, was unlawful interrogation regarding the activ- ities of others, as well as Anita Wilburn, in view of the fact that Goodan persisted in asking who had done the lettering when Wilburn said that she had not. I consider it obvious that Goodan was acting as an emissary of Gene Case when she asked the questions, because she commented that Case thought that Wilburn had done the lettering. Although Sina Yonts was widely known to be a leading union adherent at the plant, Gene Case's questions of her regarding her impression of matters at Gibraltar, which could only mean union matters, considering the context of the entire conversation, were an unlawful solicitation of her views regarding the Union and are violative of Section 8(a)( I). I further find that Case's remarks to Yonts that the Union had got nothing at Gibraltar were designed to im- press upon her the futility of selecting the Union as collec- tive-bargaining representative and therefore violated Sec- tion 8(a)( ). Gibraltar's president. Wallace Forman, spoke to Case's employees in September and November at the request of Gene Case. Case claims that he asked Forman to talk to his employees because Forman was a better speaker and could explain the election procedures to them. Although I have no way of comparing the relative speech- making abilities of Forman and Case, I cannot believe that Case, who had gone through a National Labor Relations Board election the vear before, was not perfectly compe- tent to explain the procedures to his employees without outside aid. I am persuaded that the real reason Case invit- ed Forman to speak to his employees was that Forman was both reads and willing to do so. and Forman. as president of Case's chief customer, would impress the employees as 815 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one from whom their employer derived the work that sus- tained their employment and as one speaking authorita- tively of negotiations with the Union in view of the cam- paign, certification, and negotiations with the II.GWU at its Olive Hill facility, which was located but I mile from Case. Forman's statements at the September meeting with Case's employees were clearly calculated to impress upon them not only that he owned the building that Case was operating in, but that Case received most of its work from Gibraltar. It is further found that Forman's claims that Case could not survive a union boycott, and that em- ployers doing Government work as Case does could not survive with a union, were designed to impress upon the employees the dangers to their continued employment if they selected a union as their representative. The thrust of Forman's remarks at his November 3 meeting with Case employees was that he was going to permit Case to do work for Gibraltar, but that he could pull the work out of Case and give it to someone else if a union came in, a strike resulted, and he concluded that Case could not complete the contract. This, as well as his statement that Case had the same alternative to ship work back to Gibraltar if he was unable to complete it on time, was based on unwar- ranted hypothetical assumptions conveyed to employees in such a manner as to suggest a loss of work if the Union were successful. I conclude that Forman's hypothetical syl- logistic construction was an effort to convey to the employ- ees that dire consequences were attendant on union organi- zational success. I am of the opinion that Forman's unwarranted construct conveyed a threat of economic loss to Case's employees sufficient to constitute a violation of Section 8(a)() of the Act. Forman was acting as an express agent of Gene Case and Case, Inc., at the time that he made these various speeches to employees at Case. At the time that Forman made his speech to Case em- ployees on November 15, it is fair to assume that his state- ment to reporter Dan Tracy on November 3 was widely known by Case's employees, because it appeared in the Olive Hill Times, a newspaper of general circulation, on November 8. The newspaper article made it abundantly clear that Forman was opposed to unionization in Olive Hill, whatever garment factory located there it might occur in. His advice to Case's employees that Gibraltar's employ- ees were not working, and that the Gibraltar plant would probably go out of existence unless the Union and Gibral- tar reached an agreement, was introduced into the speech as an ominous portent of possible consequences at Case if it selected a division of the same union to represent them. This statement by Forman, taken in the context of the other statements made by him during the campaign and the events occurring at the Gibraltar plant, was reasonably calculated to arouse fear in the minds of the Case elector- ate that the fate of Gibraltar employees might be repeated at Case. Although it is undoubtedly true that it is almost impossible to accurately ascertain, absent some overt state- ment of the hearer, the impact of statements of this type on the audience to which they are delivered, I find that the statements of Forman slipped over the narrow line of per- missibility and had an inherent tendency to restrain and coerce employees in the exercise of their franchise in the upcoming election. I am somewhat doubtful that, standing alone, his statements would be violative of Section 8(a)( I), or even objectionable conduct, but viewed in the frame- work of the continuous antiunion campaign by Forman at both Gibraltar and Case, his statements take on additional weight sufficient to warrant a finding that they are in viola- tion of Section 8(a)(1) of the Act. In reaching this conclu- sion, I have also considered that Gene Case's designation of Wallace Forman as his spokesman in the preelection campaign conveyed to Case's employees that he shared the views of Forman and agreed with Forman's approach to labor relations. Forman was known to Case's employees as the executor, if not the architect, of Gibraltar labor rela- tions policies, which were clearly antiunion and utilized tactics of layoff and plant closure to stave off unionism. It would be an unwary employee indeed who would not con- strue Forman's predictions as promises of intent and evalu- ate his statements in the light of his conduct at Gibraltar and his publicly stated vehement opposition to the Union, an approach which Case was implicitly adopting when he selected Forman as his representative. The various violations of Section 8(a)(1) of the Act di- rected at Anita Wilburn commenced within 10 days of her return to work from maternity leave and continued until about the Ist of November. I am persuaded that Anita Wilburn was singled out by the Respondent as an active union adherent and made the focal point of an orchestrat- ed series of unlawful statements. There appear to have been no warnings of bad work made to Wilburn until after she commenced wearing a T-shirt with a union label on the front and the statement "Dear Gene: If you bug me, the government will get thee" on the back. The questions di- rected to Wilburn by Goodan with regard to this lettering on the back of her T-shirt was at Gene Case's direction and clearly evidenced his continuing hostility to her protected union activities. Although I have found that the Respon- dent does have a standing policy with regard to procedure to be followed in discipline for poor work, and it appears that the actual warnings, suspension, and discharge of Wil- burn are not inconsistent with that policy, and two other employees had also been discharged for poor work, I note that the discharge of Kathy Dunaway followed that of Wil- burn and therefore is unreliable as establishing a precedent for the action against Wilburn. I further note that Beverly Knipp's discharge for poor work about December 1, which is not herein alleged nor found to be a violation of the Act, was contemporaneous with the series of warnings being given Wilburn and preceded Wilburn's discharge by only about 9 days. There was no other evidence proffered or adduced of any specifically named employee having been discharged under the policy in the past. I find the question of Wilburn's warnings, suspension, and discharge to be ex- tremely difficult to resolve, inasmuch as it appears that her work was indeed not up to standard, although it appears to me that the Respondent's insistent illegal harassment could reasonably be expected to disturb her concentration and affect her work performance. The rapid succession of warnings, suspension, and discharge, following as they did the various expressions of disapproval of her union activi- ties that were directed to her, leads me to conclude that the warnings, suspension, and discharge were retaliatory mea- sures taken by the Respondent because she did not bend to 816 leading and defamatory letter concerning the Peti- tioner which was circulated inside the plant on the day before the election. Objections 2 and 3 are without merit, because I have found that the evidence does not even support an allega- tion of impression of surveillance. No evidence was prof- fered or adduced in support of Objection 4. and it is like- wise without merit. Objection 6 is without merit. because neither Case. Inc., nor its agents closed the Gibraltar plant. nor was it closed for the purpose of affecting the outcome of the Case election, although that may have been one of the resulting effects of the closure. The sole evidence devel- oped regarding Objections 7 and 8 relate to a letter from the United Brick and Clav Workers of America, which was apparently written to Ralco employees. Ralco is another Olive Hill firm. There were some copies of this letter in the break room on the day before the election. There is no evidence as to how the! got there or who put them there. On its face. it appears to be a communication by the I nited Brick and Clay Workers of America informing Ral- co employees that the I1.GWU was misleading them. In substance. the letter is of a propaganda nature, denouncing the ILGWU and proclaiming the virtues of the United Brick and Clay Workers in comparison with the ILGWU. I have examined the document carefully and conclude that it is a type of literature that employees would easily recognize and evaluate. There is no showing that it was distributed by Respondent. There is no obligation on the Employer to disavow the letter of which it is not shown to have had any knowledge. Furthermore. there is no showing that the letter actually misrepresents the facts, because no evidence was adduced to dispute the matters set forth in the letter. Therefore. I cannot conclude that it is a misrepresentation of fact. In any event, the Board has ruled that propaganda of this nature is not objectionable conduct.26 Accordingly, I will recommend that Objections 7 and 8 be overruled. The conduct of Gene Case. Betty Goodan, and Louise Walker which I have found to be violative of Section 8(a)(I ) of the Act, as well as Forman's unlawful statements at the two meetings with employees of Case in November. and the warnings issued to Anita Wilburn on November 5 and 9, which violate Section 8(a)(3) of the Act. are all suffi- ciently related to Objections I and 5 to be considered as objectionable conduct. Inasmuch as all of this conduct oc- curred within the period between the filing of the petition and the date of the election and is of sufficient gravity to warrant setting the election aside, I shall recommend that Objections I and 5 be sustained. Having found that the election should be set aside, it is now appropriate to consider the refusal-to-bargain allega- tions. 2 I have previously found hereinabove that Upper South represented a majority of the employees in the ap- propriate unit on September 15. 1976. the date that Case refused to recognize it as the collective-bargaining repre- sentative of its employees. I further find that by the acts herein found to be violative of Section 8(a)(1) and (3) of the Act. including the suspension and discharge of Anita -Shl,/ppl lln . krt ,,,d 'lei-afet . Ir,. 22 N.RB 111 (1t 977) Iran -Ar (Chute ( ,,ipan,. In, Mfarathon l)liion. 149 NLRB 627 (1964) the will of Gene Case and abandon her union activities. I must assume from the evidence before me that \Vilburn's work, which was satisfactory until she went on maternity leave, continued to be satisfactory from the time she re- turned to work on October 5 until she received her first warning on November 5. During the time that the Respon- dent was directing its various unlawful questions and com- ments at Anita Wilburn, she received no warnings for poor work, nor does the record indicate that her work was not satisfactory at that time. It was only after it became appar- ent to the Respondent, as particularly shown by the letter- ing on the back of her T-shirt, that she could not be solic- ited or coerced to abandon the Union that the Respondent moved quickly through the warning, suspension. and dis- charge procedure. Accordingly. I am persuaded, for the various reasons set forth hereinabove, that the discharge of Anita Wilburn, as well as the warnings and suspensions leading up to it, were executed by the Respondent to rid itself of an employee whom it knew to be an unconvertible union adherent. I find the warnings of November 5. 9. and 19 and the 3-day suspension subsequent to November 19. as well as the discharge of Anita Wilburn on December 10. to be violative of Section 8(a)(3) and (1) of the Act. Al- though the warnings of November 5. 9. and 19 are not alleged in the complaint as violations, the warnings are clearly related to the suspension and discharge alleged in the complaint and have been fully litigated by the parties without objections by the Respondent. Accordingly. I am not precluded from deciding the issue of whether or not the warnings were discriminatorily issued, even though not specifically pleaded in the complaint.2 There is no evi- dence to support the allegation that Section 8(a)(4) of the Act has been violated. I therefore find that it has not. The objections to conduct affecting the results of the election in Case 9-RC- 11709 which are before me for hearing read as follows: 1. The Employer interrogated employees concern- ing their membership in and activities on behalf of the Petitioner. 2. The Employer engaged in surveillance of em- ployees' union activities. 3. The Employer created the impression of surveil- lance of employees' union activities. 4. The Employer discriminatorily enforced a no-so- litation [sic] rule against supporters of the Petitioner. 5. The Employer threatened employees with loss of jobs to discourage their membership in and activities on behalf of the Petitioner. 6. The Employer, through its agents, closed a neigh- boring union plant in an effort to affect the outcome of the election. 7. A false, misleading and defamatory letter con- cerning the Petitioner was circulated inside the Employer's plant on the day preceding the election which interfered with the laboratory conditions neces- sary for a valid election. 8. The Employer failed to disavow the false. mis- 2 Ku.r ManufacturingC (orporation and ( ontinental tlarlnr, (C'-rnrallt"n a joint employer. 233 NI.RB 317 (1977) CASE. INC. 817 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wilburn, Case, Inc., interfered with the election process and prevented the holding of a fair election on November 16, and aimed at discouraging employees who supported the Union and at undermining and destroying the majority status that the Union had obtained. In addition to finding that the Respondent. Case, Inc., violated Section 8(a)(5) and (I) of the Act by refusing to bargain with Upper South upon request at a time when Upper South represented a majority of the union employees but instead embarked on a campaign to destroy the union majority, I am further persuaded that the Employer's unfair labor practices were sufficiently severe as to render the possibility of holding a fair election highly improbable, if not impossible. and therefore I conclude that a bargaining order, effective Sep- tember 15, 1976, is warranted to remedy the violations of Section 8(a)(5) and protect the employees' statutory rights to select their own collective-bargaining representative and to be free from restraint or coercion in the exercise of that right. 2s Upon the foregoing findings of fact and conclusions based thereon, and upon the entire record in this case, I make the following: CONC(I LSIONS O(F ILAW A. Gibraltar Industries, Inc., Cases 9 -CA-1 0786- 1, 9 C,4 1102R, and 9--CA 10786--2 I. Gibraltar Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The International Ladies' Garment Workers' Union. AFL-CIO, and the Upper South Department, Interna- tional Ladies' Garment Workers' Union, AFL-CIO, are. and have been at all tinmes material herein, labor organiza- tions within the meaning of Section 2(5) of the Act. 3. The following employees of Gibraltar constitute a unit appropriate for collective bargaining: All production and maintenance employees and ship- ping and receiving employees of Gibraltar Industries, Inc., at its Olive Hill, Kentucky, location, but exclud- ing all truckdrivers, all office clerical employees, and all guards, professional employees, and supervisors as defined in the Act. 4. At all times since October 12, 1976. and continuing to date, the International Ladies' Garment Workers' Union, AFL-CIO, has been the certified exclusive representative of all the employees within said appropriate unit for pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 5. By interrogating Ollie Ray Cox in July 1976 and on August 6, 1976, about his union activities and those of others, Gibraltar Industries, Inc., has violated Section 8(a)(l) of the Act. 6. By informing employee Ollie Ray Cox in July and again on August 6, 1976, that the Respondent had ways of finding out what type of union activity employees were 8 N. L.R B. v. Gissel Packing ('o.. Inc., 395 L;.S 575 (1969': Iradztng P'r/i. Inc.. 219 NLRB 298 11975). engaging in, Gibraltar Industries. Inc.. created an impres- sion of surveillance of the union activities of employees and thereby violated Section 8(a)(1) of the Act. 7. By threatening its employees with loss of work or other unspecified retaliation. on August 17, 1976, in repri- sal for their union activities, Gibraltar Industries, Inc., vio- lated Section 8(a)(1) of the Act. 8. Bv threatening employees, on August 24, 1976, with plant closure should they select union representation, Gi- braltar Industries, Inc., violated Section 8(a)(1) of the Act. 9. By soliciting its employees, on November 8, 1976, to abandon the Union as a condition of keeping the plant open, Gibraltar Industries. Inc., by its President Wallace Forman, violated Section 8(a)(1) of the Act. 10. By laying off the entire employee unit and transfer- ring their work to another location, as found herein, Gi- braltar engaged in unfair labor practices in violation of Section 8(a)(3) and (I) of the Act. I11. By refusing to bargain with International Ladies' Garment Workers' Union, AFL-CIO, on wages and other economic benefits. Gibraltar Industries, Inc., has, since October 27, 1976, engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. 12. By its unilateral actions in laying off its entire work force at its Olive Hill plant, transferring unit work to its Brooklyn, New York. facility, all without notification to the Union or adequate opportunity to bargain with respect to those actions before thev were effected; by refusing to meet and bargain with the Union on the work transfer, layoffs, and the effects of such actions on employees, at any place other than New York: and by otherwise refusing and failing to bargain with the Union in good faith with respect to the terms and conditions of employment of unit employees, as set forth herein, Gibraltar engaged in unfair labor practices in violation of Section 8(a)(5) and (I) of the Act. B. Case, Inc.. Cases 9-CA-10829-2, 9 CA-10958, and 9-- RC 11709 1. Case, Inc., is an employer engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act. 2. The Union, Upper South Department, International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit constitutes a unit appropriate for collective bargaining: All production and maintenance employees, including shipping and receiving employees, employed by Case, Inc., at its Olive Hill, Kentucky, location, but exclud- ing all office clerical employees, professional employ- ees, and guards and supervisors as defined in the Act. 4. At all times since September 15, 1976, and continuing to date, Upper South Department, International Ladies' Garment Workers' U;nion. AFL CIO, herein referred to as Upper South, has been the exclusive representative of all the employees within said appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 818 judge's recommended Order, stated "[r]estoration of the status quo ante following an unfair labor practice is prima facie appropriate." 29 1 have noted the ease with which Re- spondent removed its materials and machinery from Olive Hill and transported them to its Brooklyn facility. where I have concluded that it then commenced production on the same type of product formerly produced at Olive Hill. and I further note that the Respondent presented no real eco- nomic justification for moving the machinery and transfer- ring operations. Indeed. I have found this action to be dis- criinatorily motivated. There is no showing in the record regarding the terms under which The Card Factory cur- rently occupies the facility which was occupied by Gibral- tar prior to its transfer of operations to its Brooklyn plant. However, as the Charging Party points out, the evidence before me indicates that Gibraltar is still primary lessee of the building where The Card Factory is now located, and the limited evidence on the matter indicates that The Card Factor) operates a rather simplified process requiring only work tables as operating equipment. Gibraltar made no showing at the hearing that it had abandoned the lease on the Olive Hill premises, and while I am reluctant to con- clude that it is subleasing to The Card Factory'. inasmuch as I have no evidence on that point, it would seem that Gibraltar Industries. Inc., still has the primary claim on that facility at Olive Ilill by virtue of its outstanding lease. Upon consideration of all the foregoing factors relating to the problems of retransfer and reoccupancy, including a possible financial liability of Gibraltar Industries, Inc.. to The Card Factory if it were to reoccupy the premises, I have concluded that these problems were the result of se- vere unfair labor practices of Gibraltar resulting in the ter- mination of some 17 employees and the breach of an abso- lute obligation to bargain in good faith after certification by the Board of II.GWU as the employees' collective-bar- gaining agent. The statements of Forman to the effect that it would be a simple matter to move the Olive Hill opera- tion into a small portion of the Brooklyn plant leads me to conclude it would be relatively simple to move it back. I am persuaded that a restoration of the status quo ante is required to remedy the effects of the employer's unfair la- bor practices. Accordingly, I shall order Gibraltar Indus- tries. Inc.. to retransfer the machinery that it previously moved to Brooklvn back to Olive Hill and resume opera- tions at that location, taking whatever steps are necessary to secure the premises now' occupied by The Card Factory. I shall further order it to offer the employees it laid off on November 5 and 8. 1976. reinstatement to the positions they held prior to their unlawful severance and to make them whole for wages lost as a result of the layoff. with backpa? and interest thereon to be computed in the man- ner prescribed in F W Woolworth Company, 90 NLRB 289 (1950) and Florida Steel Corporation, 231 NLRB 651 (1977).30 In the alternative, if it be determined by the Board in subsequent compliance proceedings that Gibraltar no longer holds the Olive Hill lease and no other suitable facil- ities are available in or around Olive Hill, Kentucky, for resumption of Gibraltar's former operations, I shall order 5. By coercively interrogating its employees about their union activities and those of others. C'ase. Inc.. has violated Section 8(a)(1) of the Act. 6. By threatening its employees with reprisals if they did not abandon their union activities, Case, Inc.. has violated Section 8(a)(1) of the Act. 7. By making implied promises of benefit, conditioned on abandoning her union activity, to Anita Wilburn on October 23, 1976, Case, Inc., violated Section 8(a)(l) of the Act. 8. By directing its employees to tell other of its employ- ees to vote against the Union, the Respondent violated Section 8(a)(1) of the Act. 9. By warning, suspending, and discharging Anita Wil- burn for engaging in union activities and thereafter failing or refusing to reinstate her, the Respondent has violated Section 8(a)(3) and (l) of the Act. 10. The Respondent engaged in objectionable conduct requiring that the election conducted on November 16, 1976, in Case 9 RC-11709, be set aside. II. By engaging in the above-described violations of Section 8(a)(3) and (I) of the Act for the purpose of under- mining and destroying Upper South's majority status, the Respondent violated Section 8(a)(5) and ( 1) of the Act. 12. The violations of the Act found herein interfered with the election process, had a tendency to undermine Upper South's strength, prevented the holding of a fair election, and warrant the issuance of a collective bargain- ing order. 13. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 14. The challenges to the ballots of Louise Walker, Betty Goodan, Beverly Pidgeon, Francis Webb. and Bernice Por- ter should be sustained; the challenges to the ballots of Woodrow Burchett, Elva Duncan, Juliette Haslebeck. and Walter Sherman Butler should be overruled. Tn}E RIMEDE A. Gibraltar Industries, Inc. Having found that Gibraltar Industries. Inc.. has en- gaged in and is engaging in certain unfair labor practices. I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. As a remedy for the transfer of work to Brooklyn and the accompanying total layoff at Gibraltar's Olive Hill facility, the General Counsel and the Charging Party seek an order requiring Gibraltar Industries, Inc., to transfer its machinery back to Olive Hill from Brooklyn and resume the operations that it discontinued in Novem- ber 1976. The Respondent contends that the Board has never ordered retransfer of a plant without affording some alternative remedy and that the reinstitution of the Gibral- tar operation at Olive Hill is not possible in view of the fact that the facility it formerly utilized is now occupied by another employer. The problem of ordering the resumption of discontinued operations was carefully discussed in N. C. Coastal Motor Lines, Inc., 219 NLRB 1009, 1014 (1975). The Board, in adopting the administrative law ', 219 \I RB ., l011 ' Scc. encrall,. 1, t.'.... , A i11 ,,,,c, ( , 138 NLRB 716 (1962) CASE, INC. 819 DECISIONS OF NATION'AL LABOR RELATIONS BOARD Gibraltar to make its former Olive Hill employees whole for wages lost, computed in the manner set forth above, from the date of their layoff until such time as they secure substantially equivalent employment or permanently leave the labor market. I shall further order that Gibraltar Industries, Inc.. upon request, meet and bargain with the Union, and that it cease and desist from unilaterally transferring unit work to other locations without consulting with the certified bargaining representative, cease and desist from insisting on conduct- ing any personal negotiations in New York, and meet and bargain with the Union at reasonable times and places. In order to insure that the employees will be accorded the services of their selected bargaining agent for the pe- riod provided by law, I shall order that the initial period of certification will begin on the date that Gibraltar Indus- tries, Inc., commences to bargain in good faith with the International Ladies' Garment Workers' Union, AFL CIO. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 329 F.2d 600 (C.A. 5, 1964), cert denied 379 U.S. 817; Burnett Construction Compan,. 149 NLRB 1419 1421 (1964), enfd. 350 F.2d 57 (C'.A. 10, 1965). B. Case, Inc. In order to remedy the unfair labor practices found herein, my recommended order will require Case. Inc., to cease and desist from further violations, to expunge the November 5, 9, and 19 warnings to Anita Wilburn from its records, and to offer unconditional reinstatement to Anita Wilburn and make her whole for all wages lost by her as a result of her unlawful suspension and discharge, such back- pay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, supra, and Flor- ida Steel Corporation, supra.31 I shall further recommend that the challenges to the ballots of Louise Walker, Betty Goodan, Bernice Porter, Beverly Pidgeon, and Francis Webb be sustained and the challenges to the ballots of Juliette Haslebeck, Walter Sherman Butler, Woodrow Bur- chett, and Elva Duncan overruled. The ballots of Hasle- beck, Butler, Duncan, and Burchett are determinative of the results of the election. Accordingly, I shall recommend that their ballots be opened and counted and that the Up- per South Department, International Ladies' Garment Workers' Ujnion, AFL-CIO, be certified by the Board as the collective-bargaining representative of all the employ- ees in the unit found appropriate herein at Case, Inc., if the Upper South Department then obtains a majority of the valid votes cast. If the Upper South Department does not secure a majority of the valid votes cast after the count, I shall recommend that the election be set aside and that Case, Inc., be ordered to recognize and bargain with the Upper South Department as the exclusive collective-bar- gaining agent of the employees in the unit found appropri- ate herein. Pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 31 See In. 30.. sipr ORDER 32 A. Respondent Gibraltar Industries, Inc., Olive Hill. Kentucky, its officers, agents, successors, and assigns, shall: 1. (Cease and desist from: (a) Discouraging membership in the International La- dies' Garment Workers' Union, herein called the ILGWU, or any other labor organization. by laying off or discharg- ing employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Coercively interrogating employees concerning their and other employees' union activities and desires. (c) Threatening employees with loss of work or plant closure because they engage in protected union activities. id) Refusing to bargain collectively with the ILGWU as the exclusive collective-bargaining representative of the Gi- braltar Industries. Inc., employees in the unit found appro- priate herein, with respect to wages, hours, and other terms and conditions of employment; and unilaterally transfer- ring unit work or otherwise unilaterally changing wages, hours, or other terms and conditions of employment of unit employees without notice to and bargaining with the ILGWU. (e) Insisting on bargaining in New York. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Upon request, bargain with the ILGWU as the ex- clusive representative of all employees in the aforesaid ap- propriate unit and, if an understanding is reached, embody such understanding in a written, signed agreement. (b) Reestablish its facility at Olive Hill, Kentucky, and retransfer thereto the machinery privously transferred from Olive Hill. Kentucky, to Brooklyn, New York, if Gibraltar is still the lessee of the Olive Hill facility or if other suitable facilities are available in or around Olive Hill, Kentucky. (c) Offer those unit employees laid off on November 5 and 8, 1976, immediate and full reinstatement to their for- mer jobs without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earn- ings they may have suffered by reason of the discrimina- tion against them in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records and reports and all other records required to ascertain the amount, if any, of any backpay due under the terms of the recommended Order. (e) Post at its reinstituted Olive Hill, Kentucky, facility and mail to each of its employees employed at its Olive Hill facility on November 5 and 8, 1976, copies of the at- : In Ihe event no exceptions are filed as provided by Sec 102.46 of the RuleIs and Regulalt ins of the National L.abor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec. 1(12.48 of the Rules and Regulations. be adopted by the Board and become its tillditigs, conlclusiosns. and Order, and all objections thereto shall be deemed waliscNl for a.i1 purposes 820 CASE, INC. tached notice marked "Appendix B." '3 Copies of said no- tice on forms provided by the Regional Director for Re- gion 9, after being signed by Respondent's authorized agent, 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 notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered b\ other material. (f) Notify the Regional Director for Region 9. in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply with this Order. B. Respondent Case, Inc., Olive Hill, KentuckN. its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Upper South De- partment, International Ladies' Garment Workers' Union, AFL-CIO, herein called Upper South. or any other labor organization. by discharging employees or otherwise dis- criminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Refusing to recognize and bargain with the Ulpper South Department as the exclusive bargaining representa- tive of all the employees in the above-described appropri- ate unit. (c) Coercively interrogating employees concerning their and other employees' union activities and desires. (d) Promising benefits to employees to induce them to refrain from union activity. (e) Expressly or impliedly threatening employees with loss of work should they engage in union activity. (f) Directing employees to assist it in discouraging union activities among its other employees. (g) In any other manner interfering with. restraining. or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Upon request, recognize and bargain with the Upper South Department as the exclusive bargaining representa- tive of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such under- standing in a written, signed agreement. (b) Offer to Anita Wilburn immediate and full reinstate- ment to her former job or. if that job no longer exists. to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make Anita Wilburn whole for any loss of earnings she may have suf- fered by reason of the discrimination against her, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Expunge from its personnel records all references to the warnings of November 5. 9, and 16 issued to Anita Wilburn. (d) Post at its Olive Hill, Kentucky. facility copies of the attached notice marked "Appendix C." 34 Copies of the Notice, on forms provided by the Regional Director for Region 9. after being duly signed by Respondent's author- ized representative, shall be posted by the Respondent im- mediately upon receipt thereof and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director, in writing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. In Ihc ccilt thait thi, Order is enfoiced b, a .ludgmenl of a t nltcd State, (t urt of Appea... the wsords im the nlotice reading "Posted hs (Irder of tite \t.ltii.l .I Itbo RelitlonI I hlrd" s all read Por.led Iur'ullnin to). tldliieril of te I I mcd S ette- ( oilt of -\ppcals t:nfrcrl .irln ()rdel of the Nntll, 11l I abl.) Rclti)n, BoaI.rid ; See fn. 33. rinra APPENDIX B Noi I To Espt.os rEis POSlI ) RY (O)RI)R ()IOf tl N ,llo)Nt 1 LABOR REI AFIONS BOARD An Agency of the United States Government Wti , lll NO lay off employees or transfer work that belongs in the appropriate unit set out below, or other- wise discriminate against employees in order to dis- courage membership in or support of International L adies' Garment Workers' Union, AFL-CIO, or any other union. We wiii Nor warn or threaten employees that we will close any part or all of our operations, or termi- nate or deprive any employee of work for joining or supporting the Union named above or any other union. Wfi ,il ,Nor interrogate our employees about their union activities or those of other employees. Wit i I Noli refuse to bargain in good faith with the above-named union about the terms and conditions of employment in the appropriate unit. Wt w il Nol change any existing term or condition or employment of employees in the appropriate unit set forth below without first notifying the union named above and giving it an adequate opportunity to bargain about it. WF a II N)T in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the National Labor Relations Act. Wt slll resume our operations at Olive Hill. Ken- tuckN. unless it is determined by the National Labor Relations Board that we are unable to secure suitable facilities for such resumption in or about Olive Hill, Kentuck, . Wi will. upon reinstitution and restoration of the operations previously performed at Olive Hill, Ken- tucks. offer to the employees laid off by us on Novem- ber 5 and 8. 1976, immediate and full reinstatement to their former jobs. or, if those jobs no longer exists, to substantially equivalent jobs, and wE WIL make each of them whole for any loss of earnings or benefits suf- fered by them by reason of the discrimination against them. 821 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, if it be determined by the National Labor Relations Board that there is no suitable facility for our resumption of operations in or near Olive Hill. Kentucky, make each of the employees referred to above whole for any loss of earnings suffered by them by reason of the discrimination against them, until such time as they secure substantially equivalent em- ployment elsewhere or permanently leave the labor market. WE WILL bargain in good faith with the above- named Union about the terms and conditions of em- ployment of employees in the appropriate unit, and if an agreement is reached which is put in writing, we will sign that agreement. The appropriate bargaining unit is: All production and maintenance employees and shipping and receiving employees at Gibraltar In- dustries. Inc., at its Olive Hill, Kentucky, location. but excluding all truckdrivers, all office clerical em- ployees. and all guards, professional employees, and supervisors as defined in the Act. (GIBRAI iAR INI)I SIRIIS. IN( 822 Copy with citationCopy as parenthetical citation