Colonial Knitting Corp.

National Labor Relations Board - Board Decisions

Jan 20, 1971

187 N.L.R.B. 980 (N.L.R.B. 1971)

980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colonial Knitting Corp. and Local 222 , Knitgoods
Workers ' Union, International Ladies Garment
Workers' Union , AFL-CIO . Case 22-CA-4000
January 20, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 31, 1970, Trial Examiner Harry R. Hinkes
issued his Decision 1 in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision together with a supporting brief.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,3 conclusions,4 and recommendations5 of the
Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Colonial Knitting Corp., Linden,
N.J., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.6
I The Trial Examiner severed Case 22-RC-4546 and returned it to the
Regional Director for further processing On October 20, 1970, the
Regional Director issued an Order Dismissing Petition in that case
2 The Respondent's request for oral argument is hereby denied as, in
our opinion, the record, including the Respondent's exceptions and brief,
adequately presents the issues and positions of the parties
3 These findings and conclusions are based, in part, upon credibility
determinations of the Trial Examiner to which the Respondent has
excepted The Trial Examiner's credibility findings are not contrary to the
clear preponderance of all relevant evidence Accordingly, we find no basis
for disturbing those findings Standard Dry Wall Products, inc, 91 NLRB
544, enfd 188 F 2d 362 (C A 3)
4 While repudiation of a union authorization card does not necessarily
require formal action, we agree with the Trial Examiner's finding that
Santiago's union authorization has not been effectively repudiated In
making this finding we rely on the effect of Santiago's vacillating conduct
5 In agreement with the Trial Examiner, we find that the Respondent's
unfair labor practices are so pervasive that they have the tendency to
undermine majority strength and impede the election process The
possibility of erasing the effects of these past practices and insuring a fair
election by the use of traditional remedies is slight . We conclude that
employee sentiment , once expressed through cards, would , on balance, be
better protected by the issuance of a bargaining order Gissel Packing Co,
395 U S 575
In reaching this conclusion, we need not rely on the Trial Examiner's
finding of a violation of Section 8(a)(l) by the alleged threats made to
employee Froilan Berrios
We note a typographical error in the fourth paragraph of "The Remedy"
section of the Trial Examiner' s Decision , which should correctly read
unlawful interrogation of Santiago by Kaffko without "
6 In footnote 2 of the Trial Examiner's Decision , substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES, Trial Examiner: Pursuant to a charge
filed on January 7, 1970 by Local 222, Knitgoods Workers'
Union, International Ladies Garment Workers' Union,
AFL-CIO, hereinafter called the Union, and served on
Colonial Knitting Corp. (herein called the Employer or
Respondent) on or about the same date, a complaint was
issued on February 13, 1970, alleging the commission of
specified unfair labor practices by the Respondent.
Previously, however, the Union had petitioned for an
election on December 12, 1969. Pursuant to an agreement
for consent election executed by the parties and approved
by the Acting Regional Director of Region 22 on December
22, 1969, an election by secret ballot was conducted on
January 6, 1970, among the production and maintenance
employees employed by the Employer at its Linden, New
Jersey, location during the payroll period ending December
21, 1969, but excluding all clerical employees, professional
employees, guards, watchmen, and supervisors as defined
in the Act. There were five valid votes of which one was cast
for the Union and the other four were cast against the
Union. Thereafter the Union filed objections to conduct
affecting the results of the election. After an investigation
the Regional Director filed his report in which he referred
one objection for the purpose of hearing, ruling, and a
decision by a Trial Examiner, consolidating said case with
the complaint theretofore issued.
By answer duly filed Respondent denied the commission
of any unfair labor practice as alleged in the complaint and
by way of separate defense alleged that the Union was not
the representative of the employees for the purpose of
collective bargaining by reason of having lost the election
conducted on January 6, 1970, and has not been and is not
now the representative of the employees.
A hearing was held before me at Newark, New Jersey, on
April 14, 22, and 23, 1970, at which all parties were
represented and were afforded full opportunity to partici-
pate, examine witnesses, and adduce relevant evidence.
Briefs have been received from the parties and have been
given careful consideration.
Upon the entire record in this proceeding I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is and has been at all times material herein a
187 NLRB No. 134
COLONIAL KNITTING CORP.
New Jersey corporation with its principal office and plant
in Linden, New Jersey, where it has been at all times
material herein continuously engaged at said plant in the
knitting of yarn. In the course and conduct of Respondent's
business operations during the 7 months preceding the
issuance of the complaint, said operations being representa-
tive of its operations at all times material herein, the
Respondent caused to be manufactured products valued in
excess of $50,000 which were shipped from its plant in
interstate commerce directly to States of the United States
other than the State of New Jersey. The complaint alleges
and Respondent's answer admits that Respondent is and
has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and Respondent's answer admits
that Local 222, Knitgoods Workers' Union, International
Ladies Garment Workers' Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Employer commenced operations in June 1969 at its
location in Linden, New Jersey, where it is engaged in the
knitting of yarn. Robert McEvoy is corporate secretary and
Joseph Kaffko is president of the corporation. Neither man
is engaged in the day-to-day operations of the plant.
Lawrence Kaffko (herein referred to as Kaffko) is vice
president and Zolton Lacho (hereinafter referred to as
Lacho) is treasurer of the corporation. These two men are
responsible for the daily operations of the plant and direct
its activities and employees. When operations commenced
in June 1969 the sole employee was Lacho's brother Louis.
Thereafter the following employees were hired: Angel
Santiago on July 11, 1969, at $2.75 per hour; Luis Berrios
on August 23, 1969, at $2 per hour; Froilan Bernos on
October 10, 1969, at $2 per hour; Jorge Diaz on November
15, 1969, at $2.75 per hour; and, most recently, James
Schaefer on March 5, 1970. As of the date of the hearing the
above-named six employees constituted the work unit.
When Santiago was hired he was promised a 15-cent-per-
hour raise in 2 months and was also told there would be
future wage increases depending on his work improvement.
The Berrios brothers were also told at the time of hire that
they could earn future raises depending on their work
improvement. On September 20, 1969, Santiago and Luis
Berrios each received wage increases of 15 cents per hour.
On January 5, 1970, Santiago and Froilan Berrios each
received raises of 15 cents per hour and Luis Berrios
received a raise of 25 cents per hour. Since commencing
operations the plant has operated continuously on a daily
two-shift basis, each shift being 12 hours' long. The
foregoing facts were stipulated by the parties.
Following an organizational drive by organizers of the
Union, employees Santiago and the two Berrios brothers
signed union authorization cards on November 25, 1969.
The next day, November 26, Santiago telephoned Union
Organic er Lopez and told him that he no longer wanted to
be represented by the Union . In Santiago 's words he told
981
him to "forget about my signature." He did not ask for the
return of his card but told Lopez that he would vote against
the Union if there were an election.
Santiago's activities following his conversation of No-
vember 26 with Union Organizer Lopez are not altogether
clear. According to Santiago's testimony, Lopez visited the
plant to represent the workers, following which Santiago
complained to him that he should not have done so because
"We didn't permit you to do that." When asked "When was
this?" Santiago answered "He waited like I or 2 weeks and I
called him and told him to forget about it definitely and
that is when he came in and went to represent us."
Inasmuch as it is undisputed that union representatives
visited the plant on December 3 to demand recognition, it
would appear from Santiago's testimony that he told Lopez
to forget about his card signature "definitely" when the
union organizers visited the plant on December 3. Lopez in
his testimony stated that when Santiago called him on
November 26 and told him to forget about the Union he
asked to see Santiago. Lopez visited Santiago at his home
on November 28 at which time Santiago told him he had
changed his mind and wanted the Union because he had
had an argument with his boss. On December 3, the day
that the union representatives visited the plant to demand
recognition, Santiago called Lopez and told him that
Kaffko had told him that Santiago had doubled crossed
him by signing with the Union. Lopez returned Santiago's
call on the same day and asked that Santiago and the
Berrios brothers submit statements to the NLRB. The next
day Lopez went to Santiago's home but at this time
Santiago refused to go. Lopez went again to Santiago's
home on December 10 and this time, although Santiago did
not go to the Board, he did offer to send the Berrios
brothers and did so on December 11.
Of the two versions I am inclined to credit the testimony
of Lopez rather than that of Santiago with respect to the
events following Santiago's statement to Lopez to forget
about his signature to the union card. Although Santiago's
version was unclear and vague I found the testimony of
Lopez much clearer and consistent. I conclude, therefore,
that although Santiago told Lopez to forget about his union
card on November 26 he changed his mind again on
November 28 when he told Lopez that he wanted the
Union and maintained this attitude at least until December
11. This conclusion is fortified by the fact that Santiago
never demanded the return of his union card and never
made a written revocation or repudiation of his union
membership, but instead even arranged for the trip of the
Berrios brothers to the Board to submit statements
regarding their Employer's antiunion behavior. The Board
and courts have indicated their concern that repudiations
should be as formal as designations. Thus, in Reeder Motor
Co., 96 NLRB 831, 834, the Board held:
If a recently selected bargaining representative is to be
divested of its authority, we believe it reasonable to
require that the withdrawal of such authority be
evidenced by clear and unambiguous conduct and with
the degree of certainty required to establish the original
designation for surely the necessary standards of proof
in both these situations should be the same.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
See also Brooks v. N.L.R.B., 348 U.S. 96, 99, where the
Court held.
Since an election is a solemn and costly occasion,
conducted under safeguards to voluntary choice,
revocation of authority should occur by a procedure no
less solemn than that of the initial designation.
Santiago 's "repudiation" by his statement to Lopez to
"forget it" cannot be equated with the formality of his card
signing, the act of designation. Nor was his behavior after
November 25 such "clear and unambiguous conduct with
the degree of certainty required." Accordingly, I conclude
that Santiago's union authorization of November 25 was
never effectively repudiated, revoked, or withdrawn.
Employee Diaz testified that Lacho spoke to him 4, 5, or
6 days following the Thanksgiving holiday of 1969 which
fell on November 27 Lacho told him that the Company
had "in mind" to give the raise promised but "being that the
Union was trying to come in he would have to hold back."
Lacho also told Diaz that there was a possibility the
Company would put three shifts on. An affidavit by Diaz to
the Board and bearing the date of December 11, 1969,
however, recited that Lacho told Diaz that if the Union
came in the Company would give "nothing" and would cut
down on overtime. Diaz did not remember using the word
"nothing." Similarly, in an affidavit authenticated by
Froilan Berrios and dated December 11, 1969, Lacho also
told this employee that the Company "couldn't give us the
15 cents wage increase because the Union was coming in
and if the Union came in we would only be allowed to work
8 hours a day." These statements were made, according to
Froilan Berrios' affidavit of December 11, 1969, "about 1 to
2 weeks ago." Lacho, called to testify on behalf of the
Respondent, could not recall any conversation about the
Union with Diaz except one in which Diaz simply asked
Lacho to call him if anyone from the Union visited the
plant to talk to Diaz. On cross-examination, however,
Lacho first testified that he could not recall conversations
with employees about a union and then that it was possible
that he did have some conversations with employees about
a union but could not remember all of them.
I have considered the demeanor of the witnesses as well
as the consistency of their statements. As between Diaz and
Lacho I am inclined to credit the testimony of Diaz and
find that Lacho threatened to withhold wage increases and
cut overtime if the Union came in . This was the clear
import of his statements to Diaz despite the language of
"holding back" the raise. When Diaz was asked "Did Mr.
Lacho tell you if the Union won that there would be no
raise?" Diaz testified, "When Lacho told me that, that they
were going to hold back, that's what I understood. That's
what anyone would understand." I conclude therefore that
Lacho on or about December 3, 1969, threatened Diaz with
the loss of the promised wage increase and overtime if the
Union came in.
The record with respect to the testimony of Froilan
Berrios, however, is much more difficult to establish. His
affidavit on December 11, 1969, stated that Lacho
threatened the Company would not give the promised wage
increase if the Union came in and that the employees would
only be allowed to work 8 hours a day. He executed a
second affidavit on January 29, 1970, in which he stated "I
have read my statement given December 11, 1969, and
recall it; that conversation was between Zolo Lacho and
myself." On March 6, 1970, still a third affidavit was
executed by Froilan Bernos. In this affidavit he denied
being told "We would not get our raise if the Union came in
or that our overtime would be cut. He added that his
December 11, 1969, affidavit was not true. At the hearing
he maintained that his December 11, 1969, affidavit was
not true. He explained that he wanted a union to come in
on December 11 when he executed his first affidavit. All
three affidavits were received in evidence upon the offer of
the counsel for the General Counsel as well as counsel for
the Charging Party. Counsel for the General Counsel urges
that the Trial Examiner accept the affidavit of December 11
and January 29 as impeaching evidence of Berrios'
testimony but, in addition, as affirmative evidence of the
facts contained therein. He cites Starlite Manufacturing
Company, 172 NLRB No. 2, where a witness was
confronted with an earlier affidavit contradicting his
testimonial evidence. In that case the Trial Examiner
received the affidavit as substantive evidence, basing his
ruling on the California statute. We turn theretofore, to the
provisions of the New Jersey law on this subject. Rule 63(1)
of the New Jersey Rules and Evidence, effective September
11, 1967, provides:
Rule 63(1) Previous Statements of Witness
A statement is admissible if previously made by a
person who is a witness at a hearing provided it would
have been admissible if made by him while testifying
and the statement:
(a) Is inconsistent with his testimony at the hearing and
is offered in compliance with the requirements of Rule
22(a) and (b), except that such a statement may be
admitted if offered by the party calling the witness only
as permitted by Rule 20.
Rule 20 provides as follows:
Rule 20 Evidence Generally Affecting Credibility
Except as otherwise provided by Rules 22 and 47, for
the purpose of impairing or supporting the credibility of
a witness, any party including the party calling him may
examine him and introduce extrinsic evidence relevant
upon the issue of credibility, except that the party
calling a witness may not neutralize his testimony by a
prior contradictory statement unless the judge finds he
was surprised. No evidence to support the credibility of
a witness shall be admitted except to meet a charge of
recent fabrication of testimony.
Rule 22(a) and (b) provides as follows:
Rule 22 Limitations on Admissibility of Evidence
Affecting Credibility
As affecting the credibility of a witness (a) in
examining the witness as to a statement made by him in
writing inconsistent with any part of his testimony it
shall not be necessary to show or read to him any part
of the writing provided that if the judge deems it
feasible the time and place of the writing and the name
of the person addressed, if any, shall be indicated to the
COLONIAL KNITTING CORP.
witness; (b) extrinsic evidence of prior contradictory
statements, whether oral or written made by the witness,
may in the discretion of the judge be excluded unless
the witness was so examined while testifying as to give
hint an opportunity to identify, explain or deny the
statement.
It does not appear that counsel for the General Counsel
was surprised by the testimony of witness Froilan Bernos.
Having called him as his witness, counsel for the General
Counsel would not be permitted to neutralize his testimony
by his prior contradictory statement under Rule 20 of the
New Jersey Rules of Evidence. This limitation however,
appears inapplicable to other counsel and specifically to
counsel for the Charging Party who also offered Froilan's
affidavit in evidence. Since the witness was "examined
while testifying as to give him an opportunity to identify,
explain or deny the statements," the offer of counsel for the
Charging Party was properly received.
Such evidence is usually admitted for credibility purposes
only. There are exceptions, however; see, for example, U.S.
v. Graham, 102 F.2d 436 (C.A. 2). Moreover, 3 Wigmore,
Evidence § 1018 (3d ed. 1940), urges that such prior
contradictory statement evidence be accepted both as
impeaching evidence and also as affirmative evidence of
the facts contained therein, inasmuch as all parties have full
opportunity to cross-examine the witness and to develop
the conditions under which the statement was made. It
would appear that both under New Jersey law and
reasoned analysis all three affidavits of Froilan Berrios are
properly receivable in evidence, particularly here where an
issue ai ises concerning alleged behavior by the Employer of
Froilan Berrios tending to cause him to abandon his union
allegiance-behavior which allegedly occurred between the
execution of the first affidavit and the execution of the third
affidavit.
Accordingly, I reaffirm my ruling receiving the three
affidavits of Froilan Berrios in evidence. I have observed
the demeanor of this witness on the stand and, despite his
assertions that his first affidavit was untrue, conclude that
the facts contained therein are true. I note that he explained
his first affidavit as the result of his wanting the Union to
come in. His second affidavit, however, was given January
29, 1970, after the Union had lost the election and after he
had, apparently, changed his mind about the Union.
Nevertheless, his second affidavit fails to repudiate the first
affidavit; indeed, it affirms it. It was not until after the
complaint in this case issued (February 13, 1970), served on
Respondent (February 16, 1970), and hearing scheduled for
March 16, 1970, that Froilan executed his third affidavit,
dated March 6, 1970.
I find, therefore, that both Diaz and Froilan Berrios were
told by Lacho that the promised wage increase would be
withheld and overtime cut if the Union came in, and that
these threats were made on or about December 3, 1969, in
violation of Section 8(a)(1) of the Act.
As noted earlier union organizers visited the plant of the
Respondent on December 3, 1969, and spoke to Kaffko
demanding recognition of the Union. They showed several
cards purportedly signed by a majority of the employees in
the unit but refused to allow Kaffko to examine them unless
a neutral third person was present. Kaffko refused to grant
983
recognition at that time stating that there were three other
partners in the business who were not at the plant He asked
for a delay until December 12, 1969, for a reply to the
Union's demands. The union organizers then left the plant.
Kaffko immediately approached employee Santiago and
asked him if he had signed a union card. Santiago admitted
that he had done so. Kaffko also asked him if any other
employees had signed cards and Santiago told him that
Luis Berrios had also signed a card. Kaffko, in his
testimony, admitted talking to Santiago and asking him if
he had signed a union card. I credit Santiago's version of
the conversation with Kaffko on December 3, 1969. His
outspoken opposition to the Union at the time of the
hearing makes it unlikely that he would falsely attribute
antiunion activity on the part of Kaffko. In neither
Kaffko's testimony nor Santiago's testimony is there even a
suggestion that Kaffko explained the purpose of his
questioning or gave any assurances against reprisal for the
answer given. The only legitimate basis for Kaffko's
question would be his interest in ascertaining whether the
Union actually represented a majority of the unit
employees. The polling of an employee for such a purpose,
however, requires certain safeguards which the Board has
enumerated in Struksnes Construction Co, 165 NLRB 1062,
cited by the United States Supreme Court in N.L.R.B v.
Gissel Packing Company, et al., 395 U.S. 575:
Absent unusual circumstances, the polling of employees
by an employer will be violative of Section 8(a)(1) of the
Act unless the following safeguards are observed: (1)
the purpose of the poll is to determine the truth of the
union's claim of majority, (2) this purpose is communi-
cated to the employees, (3) assurances against reprisals
are given, (4) the employees are polled by secret ballot,
and (5) the employer has not engaged in unfair labor
practices or otherwise created a coercive atmosphere
There can be no doubt that the questioning of Santiago
by Kaffko failed to meet most, if not all, of the conditions
prescribed by the Board and was therefore a violation of
Section 8(a)(1) of the Act.
On December 10 employee Diaz signed a union
authorization card. Over objection from counsel for the
Respondent this card was received in evidence. On
December 12 the Union filed its petition for certification of
representative and on December 22 the Union and the
Employer entered into an agreement for consent election to
be conducted on January 6, 1970.
On January 5, 1970, Santiago and Froilan Berrios were
given 15-cent-per-hour wage increases and Luis Berrios was
given a 25-cent-per-hour wage increase. The election which
was held on the following day resulted in four votes against
the Union and one vote for the Union.
Respondent's Contentions
A. The Alleged Failure of General Counsel to
Supply Affidavits of Witnesses
Counsel for the Respondent demands that the testimony
of all witnesses called by the counsel for the General
Counsel and particularly that of Luis Berrios be stricken.
He bases this demand on his reading of Section 102.118 of
the Board's Rules and Regulations. During the course of
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing , after Luis Berrios had testified for the General C. The Diaz Authorization Card
Counsel, counsel for the Respondent demanded the
statements taken from this witness. Counsel for the General
Counsel objected, arguing that portions of the statements
given by the witness were not pertinent to the inquiry. I
then examined the documents in camera and ruled that
counsel for the Respondent could see only certain portions
of the statements which are pertinent to the proceeding.
Section 102.118 of the Board's Rules and Regulations as
amended July 8, 1968, provides:
If the general counsel claims that any statement ordered
to be produced under this section contains matter which
does not relate to the subject matter of the testimony of
the witness , the trial examiner shall order the general
counsel to deliver such statement for the inspection of
the trial examiner in camera. Upon such delivery the
trial examiner shall excise the portions of such
statements which do not relate to the subject matter of
the testimony of the witness With such material excised
the trial examiner shall then direct delivery of such
statement to the respondent for his use on cross-
examination.
I find no reason to depart from my ruling in this matter.
Counsel for the Respondent also contends that:
In view of the fact that Luis apparently had made two
affidavits and Froilan three, it is not too far fetched to
conclude that Diaz had made at least two, although
only one was produced and received in evidence.
He cites the record of counsel's request for such statements*
Apparently there are numerous statements and affidav-
its made by witnesses here which I am not permitted to
see and I think I have a right to see these statements and
these affidavits at least before I cross-examine the
witness.
TRIAL EXAMINER: You do as a matter of fact if the
statement has any relevance to the examination that's
been conducted. You will be given an opportunity.
I consider this contention frivolous. Counsel for the
Respondent was given all pertinent statements by witnesses
who had testified and which were in the possession of
counsel for the General Counsel.
B. The Affidavits of Diaz and Froilan Berrios
During the course of hearing Diaz, testifying on behalf of
counsel for the General Counsel , related his conversation
with Lacho which has been recounted earlier. In cross-
examination by counsel for the Charging Party he was then
shown an earlier affidavit executed by him in which his
account of that conversation differed from that given
during his testimony. The affidavit was offered in evidence
by counsel for the Charging Party and received . Counsel
argues that this was error.
In proceedings before the Board the Charging Party is
treated as an independent party and as such has full rights
of cross-examination and introduction of evidence. Ac-
cordingly , he was within his rights in cross-examining Diaz
concerning his earlier affidavit and in offering the Diaz
affidavit in evidence.
The disposition of the three affidavits of employee
Froilan Berrios has been discussed earlier and requires no
further elaboration at this point.
Counsel for the Respondent objects to the reception in
evidence of the union authorization card of employee Diaz
who signed it on December 10. He points to the fact that
the card was executed 7 days after the Union had
demanded recognition based on a majority of three
employees of the five-employee unit and was offered to
prove a union majority existing even if Santiago had
effectively withdrawn his support on November 26. Of
course, if Santiago had withdrawn his union card signature
on November 26 the Union would not have had more than
two members of the five-employee unit which would be less
than a majority when it demanded recognition on
December 3, 1969. Counsel for the General Counsel,
however, argues that the demand for recognition was a
continuing demand. He points to the fact that Kaffko,
when he refused recognition on December 3, asked for an
extension of time to December 12 citing the absence of the
other three partners. When the Union filed its petition for
certification of representative on December 12, 1969, it had
already secured the signature of employee Diaz to a union
authorization card 2 days earlier, so that on December 12
the Union had three of the five-man unit signed up even if
Santiago had effectively withdrawn his support.
Paragraph 14 of the complaint in this case, admitted in
the answer of the Respondent, asserts that "on or about
December 3, 1969, and at other times thereafter to date the
Union has requested and is now requesting Respondent to
bargain collectively." In Schwarzenbach-Huber, 170 NLRB
No. 176, the Board affirmed the Trial Examiner who found
that "the filing of a petition is viewed by the Board as a
request for recognition." The Trial Examiner there cited
Scobell Chemical Company v. N L.R.B., 267 F.2d 922, 925
(C.A. 2):
.. where the court, assuming that the Union lacked
a majority at the time of its bargaining request, found
that it had such a majority the next day, and held that in
the light of the strike and picketing which there ensued,
the Union's request for bargaining must be deemed a
continuing request. The instant case is somewhat like
Scobell except that here, instead of striking and
picketing, the Union pursued its bargaining request
through a representation petition.
Counsel for the Respondent points out, however, that on
appeal Schwarzenbach-Huber was reversed, 408 F.2d 236
(C A. 2) I am, of course, nevertheless bound by the
decision of the Board. I do not read the court's opinion in
that case, however, as rejecting the doctrine of a continuing
demand. As the court explained
We hold that under the circumstances of this particular
case, the cutoff date is February 9, 1967 when the letter
claiming a majority was sent by the Union. Since we
find , as is disclosed in the ensuing discussion , that the
Union had no majority on February 9, 1967, a
compelling reason for this ruling is afforded by the fact
that Fraizer [the union representative] directed a
wholesale distribution of copies of this letter at the plant
gates on February 10. The intended effect of this
widespread diffusion of the Union' s false claims that it
had a majority was undoubtedly to bring the reluctant
sheep into the fold by telling them the fight was over,
COLONIAL KNITTING CORP 985
that the Union had won and that they might as well get
on the bandwagon. No cards handed to the Union after
the making of such a misrepresentation could possibly
be deemed valid. [Emphasis supplied.]
No such misrepresentations by the Union following its
demand for recognition on December 3 are present in this
case . Accordingly, I conclude that the Union's demand for
recognition continued from December 3, 1969, without
interruption and encompassed the three card signatories on
November 25, 1969, as well as that of employee Diaz on
December 10, constituting a majority of the five-man unit
involved here. Respondent's refusal to recognize the Union
and honor its demand to bargain for the unit employees,
was, under the circumstances, a violation of Section 8(a)(5)
of the Act.
IV. OBJECTIONS TO THE ELECTION
Among the objections to the election of January 6, 1970,
filed by the Union, it was alleged that the Respondent gave
at least three of its bargaining unit employees pay raises of
15 cents or more per hour within a 2-week period prior to
the balloting and in its dealings with the bargaining unit
employees gave them to understand that their continued
employment and the wage increases would be dependent
on the defeat or rejection of the Union I have concluded
that both Diaz and Froilan Berrios were told that their
raises would be withheld because of the Union and the
Regional Director has concluded that these statements
served to cancel the Employer's permissible promise of
wage increases made prior to the advent of the Union The
question that remains, therefore, is whether the increases
granted to the three employees I day before the election
constituted such interference with the employees' freedom
of choice in the election as to invalidate the results thereof.
Although the granting of benefits during the relevant
period preceding an election is not necessarily cause for
setting aside an election, the Board has set aside
elections where it appears that the granting of the
benefits at that particular time was calculated to
influence the employees in their choice of a bargaining
representative. In the absence of evidence demonstrat-
ing that the timing of the announcement of changes in
benefits was governed by factors other than the
pendency of the election, the Board will regard
interference with employee freedom of choice as the
motivating factor. The burden of establishing ajustifiable
motive remains with the employer The Baltimore Catering
Company, 148 NLRB 970, 973. [Emphasis supplied.]
N.L R. B. v. Exchange Parts Co., 375 U S. 405.
Counsel for the Respondent, in an apparent effort to
meet the burden cast upon the Respondent, argues that
Kaffko's uncontradicted testimony establishes that the
wage increase was to be given at the first of the year "when
this new enterprise had a chance to see how it was doing
financially-and when increases are usually given in the
business world." Employee Santiago, however, testified
that Lacho had told him before Thanksgiving that they
were going to give him and the Berrios brothers a raise But
according to Santiago, Lacho did not say when. Santiago
went on to relate that sometime before December 23 he
approached Secretary McEvoy and reminded him that
Lacho had told him he was to get a raise. Then, for the first
time apparently, Santiago was told by McEvoy when he
and the Berrios brothers would get the promised raise. If,
indeed, Kaffko had told the employees sometime before
December 3 that they were to get a raise the first of the
following year, there would be no reason for Santiago to
have pursued that subject with McEvoy around December
23. 1 credit Santiago's testimony in this respect not only
because I think his antiunion attitude exhibited during the
hearing would make him reluctant to attribute improper
motives to the employer, but also because of doubts
concerning the credibility of Kaffko's testimony. I note, for
example, that, although Kaffko told the union representa-
tives on December 3 that he could not grant them
recognition without consulting with his three partners, he
admitted , nevertheless , that , following the visit of the union
organizers on December 3, he spoke to Santiago asking him
if he had signed a union card, but thereafter spoke to no
one concerning the Union. It is therefore clear from the
testimony of Kaffko himself that his request for a
postponement of union recognition was not for the purpose
of discussing the matter with his partners but for other
purposes among which was his questioning of Santiago.
As to Respondent's counsel's argument that the increase
was to be given "when this new enterprise had a chance to
see how it was doing financially-and when increases are
usually given in the business world," the record fails to
support the argument. The argument may be sound but the
evidence is lacking to show that the first of the year was
selected by the Respondent as the time when it had the
chance to see how it was doing financially and equally
silent with respect to practices regarding wage increases in
the "business world." In short, Respondent has failed to
establish a justifiable motive for granting the wage increase
on January 5, 1970, just I day before the election, rather
than waiting until after the election . It does not satisfy its
burden of proof by contending as it does in its brief merely
"the timing and the content of the increase were just as
consistent with a legitimate business purpose as with some
invidious one " It must be remembered that the date of the
promised wage increases (which Lacho threatened to
withhold on or about December 3) was not definitely fixed
by the Respondent and made known to the employees until
about December 23 when Santiago asked Secretary
McEvoy about it. This took place after the Respondent had
been served with the Union's petition and had agreed to an
election to be held on January 6. In Bata Shoe Company,
Inc, 116 NLRB 1239, the Board assumed that the employer
had formulated its new vacation plan a year before the
election, but held that its announcement to the employees,
made I week before the election, interfered with the
election and, therefore, set it aside.
I recommend that Objection 5 of the Union to the
election of January 6, 1970, be sustained and the election
set aside. I also find the Respondent to have violated
Section 8(a)(1) of the Act by its December 23 announce-
ment of the date for the wage increase and by its granting of
said wage increase on January 5, such actions being for the
purpose of inducing its employees to vote against the
Union, in interference with the rights of employees under
the Act.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW Packing Co, 395 U.S. 575. There the Supreme Court
considered whether a bargaining order is an appropriate
and authorized remedy where an employer rejects a card
majority , while at the same time committing unfair labor
practices that tend to undermine the Union 's majority and
make a fair election an unlikely possibility. While
recognizing that secret elections are generally the most
satisfactory and the preferred method of ascertaining
whether a Union has a majority , the Court went on to say
that "where an employer engages in conduct disruptive of
the election process, cards may be the most effective-
perhaps the only-way of assuring employee choice." The
Court noted with approval the Board's "policy of issuing a
bargaining order in the absence of 8(a)(5) violation or even
a bargaining demand , when that was the only available,
effective remedy for substantial unfair labor practices." In
Gissel, however , the Court extends the use of the bargaining
order
... in less extraordinary cases marked by less
pervasive practices which nonetheless still have the
tendency to undermine majority strength and impede
the election processes . The Board's authority to issue
such an order on a lesser showing of employer
misconduct is appropriate , we should re-emphasize,
where there is also a showing that at one point the
Union had a majority ; in such case , of course,
effectuating ascertainable employee free choice be-
comes as important a goal as deterring employer
misbehaviour . In fashioning a remedy in the exercise of
its discretion , then , the Board can properly take into
consideration the extensiveness of an employer 's unfair
labor practices in terms of their past effect on election
conditions and the likelihood of their recurrence in the
future . If the Board finds that the possibility of erasing
the effects of past practices and of ensuring a fair
election (or a fair rerun) by the use of traditional
remedies, though present , is slight and that employee
sentiment once expressed through cards, would on
balance , be better protected by a bargaining order, then
such an order should issue.
The Supreme Court further recognized that there was a
category of less extensive unfair labor practices which
would not sustain a bargaining order.
The issuance of a bargaining order in this case turns on
the question of whether the unfair labor practices of the
Respondent had the tendency to undermine majority
strength and impede the election process or whether they
were merely of minimal impact on the election machinery
which should be used again to determine employee
sentiment I find that its unfair labor practices were of such
magnitude as to make a rerun election a probable exercise
in futility . It is clear that the Union enjoyed the support of a
majority of the employees in the unit when it filed its
petition for certification of representative as well as when it
demanded recognition The unfair labor practices of the
Respondent began when the Union demanded recognition
with the unlawful interrogation of Santiago by Lacho
without the necessary safeguards prescribed in Struksnes
Construction Co, supra. Standing along, such 8(a)(1)
violation might not have been of such gravity as to
invalidate the results of the election held on January 6. It
1. The Union represented employees Santiago , Froilan
Berrios, and Luis Bernos in the appropriate unit consisting
of five employees on December 3, 1969, when it demanded
recognition from the Respondent.
2. The actions of employee Santiago following the
signing of his union card on November 25, 1969, were
insufficient to constitute an effective repudiation or
revocation of his union membership.
3. The Union represented Santiago , Froilan Berrios,
Luis Berrios , and Diaz in the appropriate unit consisting of
five employees on December 12 when it filed its petition for
certification of representative.
4. At all times since December 3, 1969, the Union has
represented a majority of employees in the appropriate
unit.
5. Respondent violated Section 8(a)(l) of the Act by
telling employee Diaz on or about December 3, 1969, that
the Company would hold back promised wage increases
because the Union was trying to come in.
6. Respondent violated Section 8(a)(1) of the Act by
telling employee Froilan Berrios on or about December 3,
1969, that the Company could not give them the wage
increase because the Union was coming in, and, if the
Union did, the employees would have less overtime.
7. Respondent violated Section 8(a)(1) of the Act when
on December 3, 1969, it asked employee Santiago whether
he or other employees had signed union cards without the
necessary safeguards required for such questioning.
8. The Respondent violated Section 8(a)(1) of the Act
when , approximately 2 weeks before the election scheduled
for the certification of representative , it promised a wage
increase to be given 1 day before said election and when it
granted said wage increase 1 day before said election.
9. The Respondent violated Section 8(a)(5) of the Act
when on December 3, 1969, and continuing thereafter, it
refused to bargain with the Union as the collective-
bargaining representative of its employees in the appropri-
ate unit.
10 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
11. The appropriate unit is all production and mainte-
nance employees employed by Colonial Knitting Corp. at
its Linden, New Jersey, location , but excluding all clerical
employees, professional employees, guards, watchmen, and
supervisors as defined in the Act
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action which I find necessary to effectuate the policies of
the Act.
Having found that the election of January 6, 1970, should
be set aside , I am urged by counsel for the General Counsel
to recommend the issuance of a bargaining order rather
than a second election. Counsel for the Respondent, on the
other hand, sees no basis for the issuance of a bargaining
order on the facts in this case. Both cite N L R B v. Gissel
COLONIAL KNITTING CORP. 987
does not, however, stand alone. Respondent continued its
unfair labor practices on or about December 3 when it told
both Diaz and Froilan Berrios that the promised wage
increases would be withheld and overtime cut if the Union
came in. This 8(a)(1) behavior was intensified when on or
about December 23 Secretary McEvoy told Santiago that
the raise would be given on January 5. This promise of
benefits made while the election was pending could not
help but have the tendency to discourage union member-
ship. As the Supreme Court held in Exchange Parts
The danger inherent in well-timed increases in benefits
is the suggestion of a fist inside the velvet glove.
Employees are not likely to miss the inference that the
source of benefits now conferred is also the source from
which future benefits must flow and which may dry up
if it is not obliged.
Finally, the actual grant of wage increases on the eve of
the election, a scant 24 hours away, sealed the results of that
election by demonstrating most dramatically that the
Employer was, indeed, the "source of benefits now
conferred " There is no reason to believe that the lesson
thus given the employees by the Employer has faded and
will be ignored when a second election is held. The
purposes of the Act can better be effectuated by reliance on
the employees' desires as expressed by signed authorization
cards than on the results of a rerun election. I shall
therefore recommend the issuance of a bargaining order.
Consistent with the terms of the order consolidating
Cases 22-CA-4000 and 22-RC-4546, I shall order that
Case 22-RC-4546 be severed and returned to the Regional
Director for Region 22 for further processing.
RECOMMENDED ORDER
organization as a condition of employment as authorized in
Section 8(a)(3) of the Act.
2 Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request bargain with the Union as the exclusive
representative of the employees in the appropriate unit and
if an understanding is reached reduce it to writing and sign
it.
(b) Post at its place of business in Linden, New Jersey,
copies of the attached notice marked "Appendix." i Copies
of said notice on forms to be furnished by the Regional
Director for Region 22, shall after being duly signed by a
representative of the Respondent be posted and maintained
by it for 60 consecutive days thereafter in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Recommended
Order, what steps the Respondent has taken to comply
herewith.2
3. The bargaining unit is all production and mainte-
nance employees of the Respondent at its Linden, New
Jersey, location, excluding all clerical employees, profes-
sional employees, guards, watchmen, and supervisors as
defined in the Act.
Order Severing and Remanding Case 22-RC-4546
Pursuant to the terms of the Order Consolidating Cases
issued by the Regional Director for Region 22 in Case
22-RC-4546, it is ordered that Case 22-RC-4546 be and it
hereby is remanded to the Regional Director for Region 22
for further processing.
Upon the basis of the foregoing findings of fact and
conclusions of law, I recommend that Respondent Colonial
Knitting Corp , its officers, agents, successors, and assigns,
shall:
1. Cease and desist from.
(a) Unlawfully interrogating employees concerning their
union membership.
(b) Threatening the loss of benefits and overtime if the
Union were selected by the employees.
(c) Promising wage increases to induce employees to
abandon the Union
(d) Granting wage increases to induce employees to
abandon the Union.
(e) Refusing to bargain collectively with the Union as the
exclusive collective-bargaining representative of all the
employees in the unit described below.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
Local 222, Knitgoods Workers' Union, International
Ladies Garment Workers' Union, AFL-CIO, or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any and all such
activities except to the extent that such rights may be
affected by an agreement requiring membership in a labor
I In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
2 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Decision, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate you concerning
your union membership.
WE WILL NOT threaten to withhold promised wage
increases or cut overtime to discourage union activities.
WE WILL NOT promise wage increases or grant them
to induce you to abandon union activities or member-
ship.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of your right to
self-organization , to form , join , or assist Local 222,
Knitgoods Workers' Union, International Ladies
Garment Workers ' Union, AFL-CIO, or any other
labor organization , to bargain collectively through
representatives of your own choosing , or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any such activity.
WE WILL upon request bargain collectively with the
above-named union for the unit described below in
respect to rates of pay , wages, hours of work , and other
terms and conditions of employment and if an
understanding is reached reduce it to writing and sign it.
The bargaining unit is:
All production and maintenance employees
employed at our Linden , New Jersey, location,
excluding all clerical employees , professional
employees , guards, watchmen , and supervisors as
defined in the Act.
Dated By
COLONIAL KNITTING CORP.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office,
Federal Building, 16th Floor, 970 Broad Street, Newark,
New Jersey 07102, Telephone 201-645-2100.