Dan Howard Mfg. Co.

National Labor Relations Board - Board Decisions

May 11, 1966

158 N.L.R.B. 805 (N.L.R.B. 1966)

DAN HOWARD MFG. CO. 805
prejudice to their seniority or other rights and privileges and make them whole
for any loss of pay they may have suffered by reason of our discrimination
against them.
WEST SUBURBAN TRANSIT LINES, INC.,
Employer.
'Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 881 U.S.
'Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illi-
nois, Telephone No. 828-7597.
Dan Howard Mfg. Co. and Dan Howard Sportswear , Inc. and
International Ladies' Garment' Workers' Union , AFL-CIO
Dan Howard Mfg. Co . and Dan Howard Sportswear , Inc. and
International Ladies' Garment Workers' Union , AFL-CIO, Peti-
tioner. Cases Nos. 13-CA-6835 and 13-RC-10461. May 11, 1966
DECISION AND ORDER
On October 26, 1965, Trial Examiner Frederick U. Reel issued his
Decision 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 Deci-
sion. The Trial Examiner also recommended that the election objected
to by the Union be set aside. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a brief (as amended by
motion) in support thereof, the Charging Party filed cross-exceptions
to the Trial Examiner's Decision, and the General Counsel filed cross-
exceptions to the Trial Examiner's Decision, and a brief in support
thereof and in answer to the Respondent's exceptions to the Trial
Examiner's Decision.'
I The Respondent also filed with the Board a motion to strike and reject the General
Counsel's cross-exceptions and brief and the Charging Party's cross-exceptions. There-
after, the General Counsel filed an opposition to the Respondent's motion to strike and
reject, and the Charging Party filed a letter supporting the General Counsel's opposition
and urging that the Board deny the Respondent's motion relating to the Charging Party.
The Respondent then filed an answer to the General Counsel's opposition. The Re-
spondent's motion to strike and reject Is hereby denied as the General Counsel's cross-
exceptions and brief and the Charging Party's cross-exceptions were filed In accordance
with the Board's Rules and Regulations and Statements of Procedure, Series 8, as
amended.
The Respondent has requested oral argument. This request is hereby denied because
the record, including the exceptions, cross-exceptions, and briefs, adequately presents the
issues and the positions of the parties.
158 NLRB No. 54.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 these cases to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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, cross-exceptions, and briefs, and
the entire record in the cases, and hereby adopts the findings, conclu-
sions, and recommendations 2 of the Trial Examiner, with the follow-
ing exceptions, additions, and modifications.
1. The Trial Examiner found that the Respondent, by unlawful
interrogation, threats, creating the impression of surveillance, and
withholding wage increases, violated Section 8 (a) (1) of the Act. We
agree. The Trial Examiner also found that Foreman Moses' inter-
rogation of an employee as to what a union organizer wanted and
what he said, and Forelady Spalek's interrogation as to how an
employee felt about the Union, were not violative of the Act because
"these casual and isolated episodes were not a part of any course of
conduct engaged in by Spalek and Moses, and standing alone would
plainly not warrant the finding of an: unfair labor practice."
The General Counsel has excepted to these latter findings on the
basis that this conduct was closely related to the unlawful conduct
engaged in by other supervisors of the Respondent. We find merit
in these exceptions. Accordingly, we find that the interrogations by
Moses and Spalek, in the context of the unlawful interrogation and
other forms of interference engaged in by the Respondent, were not
casual or isolated, but closely related to and part of the Respondent's
antiunion campaign, and, therefore, that they constitute additional
violations of Section 8(a) (1) of the Act.3
2 The Respondent has excepted to many of the credibility findings made by the Trial
Examiner . It is the Board's established policy, however, not 'to overrule a Trial Examiner's
resolutions with respect to credibility unless, as is not the case here , the preponderance
of all the relevant evidence convinces us that the resolutions were incorrect . Standard
Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
The Respondent also contends that some of the findings and conclusions in the Trial
Examiner's Decision were based on the Trial Examiner 's bias and prejudice against the
Respondent . Based upon our review of the entire record, however , we find this conten-
tion without merit.
8 The General Counsel has also excepted to the failure to find certain other instances of
interrogation by the Respondent to be violative of Section 8(a) (1). We find it unnec-
essary to pass on this conduct as such additional violations , if found, would be cumula-
tive, and in any event will fall within the scope of the remedial order herein.
DAN HOWARD MFG. CO. 807
2. The Trial Examiner found that the granting of holiday pay by
the Respondent was, not violative of the Act because "the Company
intended to pay for the ... holidays in question, unless business con-
ditions deteriorated." We agree that the Respondent did not by this
conduct violate the Act in view of the fact that it had demonstrated
its intention by informing some of the employees thereof prior to the
advent of the Union.
3. The Trial Examiner found that the Respondent refused to bar-
gain with the Union at a time when the Union had valid cards from
24 employees in a unit of 45 4 We find no merit in the Respondent's
contention that some of these cards, on which the Union's majority is
based, did not constitute valid authorizations, nor in the General
Counsel's exceptions to the refusal of the Trial Examiner to count
the cards signed by Harkness, McGee, Thomas, and Terrell.5 We
find, therefore, as did the Trial Examiner, that in view of the Respond-
ent's other unfair labor practices as found herein, its refusal to bargain
with the Union was violative of Section 8(a) (5) and (1) of the Acts
[The Board adopted the Trial Examiner's Recommended Order.]
& The Trial Examiner excluded Toby Kirsch, the mother of the Respondent's president
Dan Kirsch, on the ground that she did not share a community of interest with the
other employees. Member Brown would also exclude her, but on the ground of her
family relationship. Giordano Lumber Co., Inc., 133 NLRB 205, footnote 7; P A.
Mueller and Sons, 105 NLRB 552.
5 Member Brown would include as valid cards those signed by Harkness, McGee, Thomas,
and Terrell, because, in his opinion, the best evidence of employees' intent, I e., their
signatures to cards clearly designating the Union as their bargaining agent, establishes
the majority status of the Union at the time It requested recognition. Accordingly,
Member Brown would in this case find that the Union had valid cards from 28 of the 45
employees In the unit. Section 9(c)(1) of the Act requires that a petition for an elec-
tion be based upon evidence that a substantial number of employees wish to be represented
by a designated bargaining agent. A card which merely authorized a union to seep: an
election would be unacceptable under the Act to warrant the processing of a representa-
tion petition. Union authorization cards are thus used to support election requests, and
obviously a union organizer will be discussing this fact with prospective applicants
The present case is illustrative of virtually all cases where proof of majority in an
8(a) (5) proceeding is based on authorization cards rather than on a Board election
certification. The reason for such card proof Is that the employer has deprived his em-
ployees of an opportunity for a fair election by an illegal campaign of Interference,
restraint, and coercion expressly calculated to frustrate their free choice. To invalidate
signed designations written in clear and unambiguous language on the basis of employee
testimony adduced in such an atmosphere about whether the solicitor said the card
would be used only to obtain an election is, absent evidence of fraud, coercion, or other
serious infirmity , but to ignore the proven wisdom of the parol evidence rule and to
assist a tortfeasor to benefit from his own wrong doing . In addition to subjecting em-
ployees to undesirable pressures , such a practice unduly prolongs hearings and records
and makes a semantical game of the decisional process.
9 The Trial Examiner recommended , on the basis of preelection conduct which he found
to have occurred , that the consent election held on January 21, 1965, be set aside.
Thereafter , the Regional Director for Region 13 issued a Supplemental Report on Objec-
tions in which he sustained the objections to the election and set the election aside ; his
report further provided that in the event the Trial Examiner 's recommended bargaining
order be sustained , the petition in Case No. 13-RC-10461 will be dismissed and the elec-
tion proceedings vacated.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
This proceeding heard before Trial Examiner Frederick U. Reel at Chicago, Illinois,
on July 7 and 8 and 26 and 27, 1965, arises out of the efforts of the Charging Party,
herein called the Union, to become the statutory bargaining representative of the
employees of the Respondents, herein jointly called the Company. The representa-
tion proceeding was initiated with a petition filed December 28, 1964, which was
followed by a consent election on January 21, 1965, which the Union lost and to
which it filed timely objections. The unfair labor practice case was initiated by a
charge filed January 5, 1965, and a complaint issued March 18, 1965. The two
cases were consolidated by the Board's Regional Director on March 30, 1965. At
issue are whether the Company engaged in conduct which warrants setting aside the
election, whether it interfered with, restrained, and coerced employees in the exer-
cise of their Section 7 rights, and whether the Union commanded majority support
at the time it requested bargaining, so that the Company's refusal to bargain violated
Section 8(a) (5) of the Act.
Upon the entire record I including my observation of the witnesses, and after due
consideration of the exceptionally helpful briefs filed by the Company and by Gen-
eral Counsel on September 27, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The Company consists of two closely related Illinois corporations with common
officers and a common labor policy, engaged at Chicago in the manufacture of wom-
en's clothing, of which over $50,000 worth is annually shipped to points outside Illi-
nois. The Company is engaged in commerce and its operations affect commerce
within the meaning of Section 2(6) and (7) of the Act. The Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
Briefly stated, the Union waged an organizing campaign among the Company's
employees between November 1964 and January 1965, obtaining signed authoriza-
tion cards from a majority of the employees in the bargaining unit. The Union then
'lost the election conducted January 21, by a vote of 28 to 16. The issues in this
case are whether the Company engaged in various forms of interference, restraint,
and coercion of employees, whether its conduct warrants setting aside the election,
and, if so, whether the Union prior to the commission of such unlawful conduct was
in fact the designated representative of a majority of the employees, and should be
the beneficiary of a bargaining order, the Company contending that a number of the
cards should not be counted in determining this issue.
A. Interference, i estraint, and coercion
1. Threats, interrogation, and surveillance
The complaint alleges various acts of interference, restraint, and coercion by the
coowners of the Company, Howard Leibach and Dan Kirsch. The complaint also
attributes unlawful conduct to Foreman Moses, Foielady Spalek, and employee
Ethel White, who are alleged to be agents of the Company. The White matter is
discussed below. As to Moses and Spalek, however, General Counsel argues only
that each of them was guilty of a single transgression. Moses asked one employee
what a union organizer wanted and what the organizer had said to her, and then
stated that it did not "make any difference so long as you know how to vote."
Spalek in the course of ordinary conversation with an employee asked, "How do you
feel about the Union?" These casual and isolated episodes were not a part of any
course of conduct engaged in by Spalek and Moses, and standing alone would plainly
not warrant the finding of an unfair labor practice. In view of their casual and iso-
lated character, I do not consider them sufficiently related to the Company's anti-
union campaign to rest any finding of illegality on them. Of course, any future
unlawful statements or interrogation by Spalek or Moses will be encompassed by
the order recommended below.
1 The motion of General Counsel, appended to his brief, to correct certain typographical
errors in the transcript , was unopposed , and is herewith granted
DAN HOWARD MFG. CO. 809
Apart from the Spalek and Moses matters, General Counsel urges a number of
episodes of unlawful interrogation or threats attributed to Kirsch or to Leibach.
Most of these episodes raise issues of credibility in that the conversations were
denied in whole or in pertinent part by the company official involved.
Alberta Pascal, who served as an observer for the Company at the election, testi-
fied that on November 14 Leibach asked her "who was signing up for the Union
and who wasn't and who was in favor of it," and that later in the month Leibach
asked her if she "would talk to the girls and find out who was for the Union."
Leibach denied the second episode, and, as to the first, testified that after assuring
her she need not answer, asked if she knew whether a majority of the employees
wanted the Union. Pascal testified that she declined to give the information on both
occasions; Leibach's testimony is in accord as to the one occasion to which he
testified.
Buena Cannon testified that about 1 week after the organizing drive commenced
Leibach asked her to "try to find out who was for the Union, who was not . .
and also asked whether she was for the Union. A short time later, according to
Cannon, Leibach asked if she had "found out how the other girls ... was feeling
toward the Union ... who was for and who was not . .. " Cannon testified that
on this occasion, Leibach gave her a list of several employees and asked her to talk
to them to persuade them to oppose the Union. Leibach denied that these con-
versations occurred; he testified to only one conversation on the subject with Can-
non, stating that on November 16, after assuring her that she need not reply, he
asked whether she thought a majority of the girls wanted a union.
Catherine Cole testified that in November, Kirsch, in urging her to return to work
after she had quit, asked her if she had heard anything about the Union, inquired
whether anyone talked to her about the Union, and told her not to sign anything
for the Union. Kirsch recalled a telephone conversation with Cole on the occasion
of her returning to work, but denied her version thereof and testified that the only
reference to a union was his inquiry as to whether she was afraid to come to work.
Kirsch further testified that Cole, who is still in the Company's employ, "seemed
like a timid girl" and he "thought maybe she got frightened off."
Mary Owens testified that on one occasion after she signed a union card on
November 24, and before the election on January 21, Kirsch summoned her to the
company office and asked whether she had received a card from the Union, whether
other girls had received cards, and whether she knew "how the girls felt about the
Union." During the ensuing conversation, according to Owens, she asked Kirsch,
"How do things like this start" and Kirsch replied that "he had a pretty good idea
how they got started . . . that the Spanish girls was . . . behind all of this. After it
was all over they would have to get rid of these girls that wanted to make trouble
for the girls that's here." According to Owens, Kirsch said that "if the girls wanted
a union, that was okay," but added that if the Union succeeded in its organizing
drive, "the Union might ask for things they couldn't pay, and they would have to
close up later if they couldn't pay for these things that they asked for." Kirsch
testified that he recalled the conversation and remembered Owens asking "how did
this all start," but denied making the remarks attributed to him during Owens'
testimony.
About January 1 Leibach asked employee Andora Smith how she and the other
girls felt about the Union. When Smith replied that she did not know, Leibach
told her to "ask them and find out," but she declined to do so. Leibach did not
deny the testimony of Smith in this regard.
According to employee Arthur Jackson, about 2 or 3 weeks before the election he
was summoned to the office where Leibach "wanted to know whether I care for a
union or not " Jackson also testified that the day before the election he asked
Leibach for and received time off to attend a union meeting . The next morning
Leibach ask Jackson, according to the latter's testimony, "Who was at the Union
meeting?" Leibach denied these matters, except that he recalled giving Jackson
time off to attend the meeting, and testified that the next morning he asked Jackson,
"How was the meeting last night?"
The testimony of Margaret Smith, denied by Kirsch, is that shortly before the
election in January, Kirsch summoned her to the office and in the course of a dis-
cussion about a raise asked her about the Union, and whether union representatives
had been at her home, adding that he "understood" she had signed a card.
Quinzola Williams testified that during the week preceding the election she was
summoned to the office where Leibach asked her how she felt about the Union.
Leibach denied the entire conversation.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Three employee witnesses , Catherine Cole, Matilda Pate, and Andora Smith, tes-
tified to separate conversations with Kirsch after the election, in which Kirsch indi-
,cated awareness of which employees had been attending union meetings . Smith in
her testimony attributed to Kirsch the comment at that time "we got some rats try-
mg to start trouble . . . I want to know who they are . . . I think I know some of
them." Kirsch denied the testimony of Cole and Smith, but not that of Pate in
.this regard.
2. Leibach's speeches and the no-solicitation rule
The Company made five speeches to the assembled employees during the union
-campaign, two at the outset of the campaign in November and three in January on
the 3 days preceding the election. The last of these speeches, the Company con-
cedes in its brief, was made partly on company time within 24 hours of the election,
and concededly violated the rule announced in Peerless Plywood Company, 107
NLRB 427, that a speech to assembled employees on company time within 24 hours
of a Board election is ground for setting the election aside. The Company argues
that that rule should not be invoked in this case; I see no reason why the rule should
be deemed inapplicable, but in any event the other unfair labor practices found
herein furnish ample basis for setting the election aside.
General Counsel contends that the January speeches violated the Act because
Leibach in the course of his remarks transgressed the line between permissible
expressions of views, argument, and opinion on the one hand and illegal threats
on the other. Certain employees testified that Leibach in one of his speeches pointed
out that if the Union prevailed and obtained a 35-hour week, the Company could
hire more employees to get production out, and thereafter have a layoff. The same
employees testified that Leibach observed that in his father's shop, which was orga-
nized, the employees worked only 16 weeks a year, rather than full time as at the
Company, and if the Union prevailed their workweeks might drop to 16. Leibach
testified that as to the first matter he merely observed that at the shops he knew of
in which the Union obtained a 35-hour week, the employer had hired more employ-
ees to prevent having to pay overtime. As to the second matter, Leibach testified
that he was answering the Union's argument based on its representing his father's
employees. According to him, he stated only that his father's employees worked
16 weeks a year at a higher rate of pay than the Company paid, that perhaps some
of the company employees would prefer this, and that the choice was up to them.
In the November speeches Leibach announced a rule against union solicitation
in the shop . According to employees Carpenter, Smith, and Banks the prohibition
was not limited to working hours. Leibach, on the other hand, testified that he
told the employees they were not to solicit during "working time."
3. Wage increases and holiday pay
General Counsel alleges that the Company (a) granted holiday pay before the
election to influence the result thereof, (b) improperly withheld normal wage
increases during the campaign, and (c) promised that wage increases would come
after the election and granted such increases. The facts as to these matters are as
follows:
The employees did receive holiday pay for the Christmas and New Year's Day
immediately preceding the election, the first paid holidays the Company had ever
granted. Apparently as far back as the previous July, the Company had decided
that in the absence of unforeseen business reversals it would start paying for holi-
days with Christmas 1964, and it had communicated this decision to three or four
employees. At the time the Christmas holiday payment was made, the employees
were not expecting it; indeed, paid holidays were among the benefits the Union in
its campaign literature claimed it would obtain if it became the bargaining agent.
As late as mid-November, when the union campaign was underway, either Kirsch
or Leibach replied to employee Cannon's question, before the assembled employees,
that the Company could not make any express promises on holiday pay at that time
because of the pendency of the union campaign, but that the employees knew the
Company would keep its word.2
9 Leibach testified that he expressly told the girls at that time -that they would be
paid for Christmas. I credit the contrary testimony of employees Cannon, Carpenter,
Banks, and Andora Smith , as reflected in the text above ; see also Catherine Cole's
testimony that she did not anticipate receiving holiday pay until it was in her hands
(accord: Carpenter , Banks , and A. Smith ), and Carpenter 's testimony , nndenied , that the
announcement of five paid holidays was made by Kirsch in March after the election.
DAN HOWARD MFG. CO. 811
With respect to wage increases, the record establishes that although the Company
normally gave such increases near the end of the calendar year, and during the
summer had promised some employees that they would receive wage increases, then,
it gave no such increases during the period from November 7, 1964, to January 21,
1965, i.e., during the union campaigning up to the date of the election. Several
employees testified that in the course of conversations with Kirsch about raises, he
told them that the Company was not granting increases during the pendency of the
union campaign as to do so would subject the Company to the accusation that it
was committing an unfair labor practice.
Immediately after the election, and before the filing of the objections thereto, the
Company granted wage increases to a number of employees. General Counsel con-
tends that these increases were improper as they were keyed to the election, were
given at a time when objections to the election could have been filed, and constituted
a reward for rejecting the Union and an inducement to oppose the Union in the
future.
4. The conduct and "agency" status of Ethel White
Several weeks prior to the election, according to the testimony of several employ-
ees, Ethel White, one of the older employees in point of service, approached them
individually, indicated that she was acting at the request or under the direction of
Kirsch and Leibach, asked whether the employee was for the Union or for the
Company, and directed those who were opposed to the Union to write "No" and
those who supported it to write "Yes" after their names on a list of employees
White had prepared. White admitted making a list of employees in her department
and asking them their union views, but denied that Kirsch or Leibach instructed her
to do so, or that she so represented to the employees. According to White, it was
her "own idea" to ask each employee in her department "one by one what they
think of the Union." Leibach denied ever asking White to ascertain the union
sentiment of the employees. According to the testimony of Owens, shortly after
her interview with Kirsch, described above (in which Kirsch asked whether she and
other girls had received union cards, and in which he responded to her inquiry as
to the origin of union activity by blaming "the Spanish girls" and indicating that
the Company would get rid of those making trouble), Ethel White came to her and
told her that Kirsch wanted White "to talk to [Owens] about the Union because he
was going to leave and he didn't think [Owens] had understood, he had got anything
over to [her]."
5. Concluding findings with respect to Section 8(a) (1)
With respect to the episodes described above under the heading of "Threats, inter-
rogation, and surveillance," I am inclined, where the testimony is in conflict, to
credit the version of the employee witnesses. Their testimony as a whole reflects a
consistent pattern on the part of Kirsch and Leibach which is consistent with the
Company's strong hostility to the Union, and while it is possible that the Union was
able to produce a group of employees who would collaborate in a mass falsehood,
this strikes me as extremely unlikely. Also, I note that the employee witnesses were
comparatively disinterested, including Catherine Cole, who had quit, Owens and
Pate, who had been laid off, Pascal, who was not a union supporter and was the
company observer at the election, and several still employed by the Company.
Kirsch and Leibach sought to explain some of their interrogation of employees by
stating that Weiner, the union organizer, told them, when they expressed doubt of
the success of his campaign, to ask their employees. Weiner denied having issued
such an invitation, and on this issue I credit Weiner. Moreover, if, as Kirsch and
Leibach testified, they had quickly received so many unsolicited reports that the
employees did not want the Union, that they knew the Union did not have a major-
ity. their admitted requests of Pascal and Cannon to ascertain employee sentiment
and report to them lose even the faint color of permissive inquiry with which the
Company at the hearing sought to endow them. I find, in short, that the Company
engaged in a pervasive campaign of interrogation as to the union activity and sym-
pathies of the employees, including requests of employees to report on the union
sympathies of others, that it on occasion injected into these interviews threats of
reprisal against union leaders, and that it obtained reports as to who attended union
meetings, although it concealed this fact until after the election. That such con-
duct constitutes interference, restraint, and coercion of employees in the exercise
of Section 7 rights, and hence violates Section 8(a)(1), is too well settled to require
further discussion.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Leibach 's speeches , I see nothing improper , once the Union had
raised the somewhat irrelevant issue that Leibach 's father's shop was organized, in
Leibach 's pointing out that the employees there worked only 16 weeks a year.
Also, I see nothing improper in Leibach 's stating that if the Union obtained a
35-hour workweek , he would hire more employees rather than pay overtime after
35 hours. Two employees , however, testified that Leibach accompanied this last
observation with a threat that in that event a layoff would ensue after production
was achieved . A threat of that nature goes beyond a mere fair prediction of the
impact of the 35-hour week; indeed, the need for layoff would appear no greater
with 53 employees working a 35-hour week than with 46 working a 40-hour week.
I find that Leibach did make the observation in question , thereby unlawfully threat-
ening the employees that if they selected the Union to represent them they increased
the chances of their being laid off.
Although I am by no means free from doubt, I am inclined to credit the Com-
pany's version that the no-solicitation rule announced by Leibach was confined to
working time , and hence is presumptively valid. The record indicates that the
Union had little difficulty in conducting its organizing campaign outside the plant,
so that the rule as announced did not create a serious "imbalance ." Cf. N.L.R.B. v.
United Steelworkers of America, AFL-CIO ( Nutone, Inc .), 357 U.S. 357. The
fact that Leibach made antiunion speeches running into working time, or the fact
that during working time he urged the employees to vote "No" would not under the
Nutone case suffice to invalidate the rule, either as stated or as applied . As dis-
cussed more fully below, however, I find that White was an agent of the Company
when , during working time, she approached several employees to ascertain their
union views . Also, as found above, Leibach asked several employees to ascertain
whether other employees were for the Union, apparently without regard to whether
this inquiry would be conducted on company time. A no-solicitation rule announced
during a union campaign but not applied to antiunion solicitation by rank-and-file
employees would appear to be adopted solely for the discriminatory purpose of
impeding organization rather than for legitimate business considerations . I there-
fore find the rule invalid in its application.
As just noted , I find that White was acting as an agent of the Company when she
conducted her poll, and that such systematic interrogation of employees as to their
union views, particularly in the context of the other unfair labor practices here
found , violated the Act. The issue as to White's authority is manifestly a close one;
"direct evidence of a purpose to violate the statute is rarely obtainable ," as the
courts have frequently observed , and it is lacking here. Manifestly , White can-
not bind the Company by her mere representation that she was its agent , although I
am satisfied that the employees credibly testified in attributing such statements to
her. And , while I would think it highly unlikely that White would engage in this
activity on her own , particularly as it was in the teeth of the no-solicitation nile,3
this suspicious circumstance would not furnish sufficient basis for a finding of
authorization . Such basis exists, however , in White's conversation with Owens which
occurred on the same day that Owens had her interview with Kirsch . After that
interview White approached Owens and stated that Kirsch wanted White to talk to
Owens because Kirsch did not think Owens had understood him. This episode
established White's knowledge of an interview between Kirsch and Owens, knowl-
edge she must have acquired from Kirsch . Added to the other circumstances sur-
rounding White's conduct , it converts mere suspicion to an actual finding that
White's actions in this area were undertaken at the behest of the Company, as she
in fact represented.4
With respect to the granting of holiday pay and the withholding of wage increases
in December 1964, I find both General Counsel and the Company taking self-
contradictory positions . According to the Company, although both holiday pay and
the wage increases were due under policies decided on prior to the advent of the
Union , the Company granted the holiday pay because of its promise but withheld the
wage increases because of a fear that the granting of increases would subject it to the
charge that it was interfering with the employees ' freedom of choice in the election.
8 See the testimony of Owens, which I credit, that when White approached her, Owens
said , "I thought we weren't supposed to talk about it. She said it's all right because
11she was instructed to do this . . . .
4 White also urged employees to mark the "No" box in the election demonstrating the
procedure by use of the sample ballots This conduct, otherwise lawful, shows further
disregard of the "no solicitation" rule.
DAN HOWARD MFG. CO. 813
The apparent inconsistency in the Company's position is matched by that of General
Counsel, who alleges that both the granting of benefits and the withholding thereof
violated the Act.
During an organization campaign, and on the eve of an election, the law as to the
granting or withholding of benefits is basically no different from what it is at any other
time. In N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, the Supreme Court
held unlawful "the conferral of employee benefits while a representation election is
pending, for the purpose of inducing employees to vote against the union," stating that
Section 8(a) (1) prohibits "conduct immediately favorable to employees which is
undertaken with the express purpose of impinging upon their freedom of choice and
is reasonably calculated to have that effect." [Emphasis supplied.] 375 U.S. at 409.
The pendency of the election, although a circumstance present in both Exchange Parts
and the instant case, does not alter the basic rule of law which is that an employer may
neither grant nor withhold benefits for the purpose of, and with the result of, encourag-
ing or discouraging union membership. The employer's legal duty is to proceed in
these matters as he would have done had the union not been on the scene. To be
sure, when an employer in these circumstances confers benefits or withholds them he
runs the risk that his action may be misconstrued and may be attacked in a lawsuit
or by administrative action. Such risks are inherent in any business action in our
society. Cf. Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 51-52.
And the Company here can scarcely complain of the harshness of this view, for it
followed one policy with respect to holiday pay and a contrary policy on wage
increases.
I find, contrary to General Counsel, that as far back as the preceding June or
July, the Company intended to pay for the Christmas and New Year's holidays in
question, unless business conditions deteriorated. I therefore conclude that in paying
for those holidays the Company did neither more nor less than it would have done
had the Union never appeared at its door. It follows in my view that the holiday pay-
ments did not violate the Act, even though the employees did not expect to receive
them, even though the Union had been urging paid holidays among the benefits it
would achieve, and even though the probable and foreseeable result (but not the
cause) of the holiday payments was to detract from union support.
By the same reasoning, however, withholding normal wage increases which would
have been granted but for the presence of the Union, and advising employees that
their wage increases, although theretofore promised, are being withheld for this reason,
violates Section 8(a)(1). See International Ladies Garment Workers' Union, AFL-
CIO, 142 NLRB 82, 105, 113. Such action necessarily tends to create employee
disaffection with the union, and misrepresents to the employee the employer's duty
under the law and the union's role in causing the loss or deferment of the wage
increase.
I see no merit in General Counsel's contention that the post- election increases
violated the Act. These were increases which the employees would have received had
the Union never approached the plant. The violation which I have found in with-
holding them until after the election would only have been compounded had the
Company continued to withhold them because objections to the election might be
filed Under this reasoning, the filing of a petition would freeze wages in a plant
until the ultimate disposition of the case, no matter how long the proceeding lasted and
no matter what increase were common in the area or in the industry during that period.
The test, I repeat, is not whether the employer changes the status quo, but whether
the purpose and effect of such changes as are made are to discourage union activity.
Where the employer can demonstrate that the change would have been instituted
regardless of the union movement, he does not violate the Act (except insofar as he
may violate his bargaining obligation) in instituting the change.
B. The refusal to bargain
1. The Union's claim of majority
The Union claimed majority status and requested recognition in a letter to the
Company dated November 24, 1964. The Company declined in a letter dated Decem-
ber 3 and urged that the matter be resolved at a consent election. The Union filed a
petition for certification on December 28, 1964. On January 5, 1965, the parties
agreed to a consent election which was set for January 21, but on January 6 the Union
again wrote the Company claiming majority status requesting recognition, and urging
that a card check be substituted for the election machinery. The Company did not
agree, and the election was held as scheduled January 21, the Union losing, 28 to 16.
General Counsel contends that the Union represented a majority as of January 6,
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company 's unlawful conduct prevented the holding of a fair election, and
that a bargaining order should issue. The Company challenges the Union 's majority
and its good faith , and contends that a bargaining order is not warranted even if the
election be set aside.
The bargaining unit , at all times relevant included 45 employees . I find that Toby
Kirsch, the mother of Dan Kirsch , should not be included in the unit although her
duties are similar to those of some other employees . Toby Kirsch worked only 5
hours a day instead of the 8 worked by most other employees , but she received a
weekly salary approximately twice as much as was earned by other employees on an
hourly basis who worked regular hours . Plainly she does not share a community of
interest with, the other employees in matters of hours, wages , and other conditions
of employment , and hence should be excluded from the unit . Cf. Cherrin Corp v.
N.L.R.B ., 349 F. 2d 1001 (C.A. 6). The Union accordingly needs the authorization
of 23 employees to establish its majority status.
Of 28 -authorization cards which were introduced in evidence , the Company
challenges 10 as not establishing that the signer should be included in determining
the majority . Before turning to the disputed cards themselves , it should be noted that
the Union obtained 12 of its 28 cards after its demand of November 24, but had all
28 at the time of its demand of January 6.
2. The disputed cards
Each of the cards in question contains a simple declaration that the signer thereof
authorized the Union to represent him in collective bargaining . The cards contain no
ambiguous language, no reference to an election , and nothing else which on its face
could cast any doubt on the plain meaning of the authorization . Cf. N.L.R B v.
Peterson Bros ., 342 F. 2d 221 , 223, 224 ( C.A. 5); International Union of Electrical,
Radio and Machine Workers, AFL-CIO v. N.L.R.B., 352 F. 2d 361 (C.A.D.C.).
Under settled law the cards must be taken as valid authorizations unless the circum-
stances under which they were procured affirmatively establish that the employee
signed them only for some other purpose.
a. Georgia Brown
Nothing in Brown's testimony suggests that at the time she signed the card on
November 25 Union Representative Weiner, who solicited her signature , misrepre-
sented the scope or meaning of the card . According to Brown, Weiner said he had the
whole shop signed up, and when she said she wished to talk to the older girls about it,
he replied that "he had all the old girls signed up." This was not an accurate state-
ment as some of the "old girls" like Pascal and White never signed cards. The truth
was that Weiner at that time had signed up some of the "old girls ," such as Cannon
and Andora Smith; it may be that others who had signed by November 25 were also
"old" employees , as the record is silent as to the length of service of most of the
card signers . Brown apparently made no effort to ascertain the truth of Weiner's
statement , or to talk to the "old girls" about the matter , or to get her card back upon
discovering ( if she ever did) that not all the "old" employees had signed. Under
settled Board law, Brown's card should be counted . See Harry Epstein et al., d/b/a
Top Mode Manufacturing Co., 97 NLRB 1273, 1296 , enfd. 203 F . 2d 482 (C.A. 3),
cert. denied 347 U.S. 912. As there stated , "this sort of claim of success on the part
of union organizers , though untrue or exaggerated , is certainly not fraud affecting
the employees ' grant of bargaining authority . On the contrary , it is clearly quite
common and harmless `sales talk' which ... is subject to ready check by the employees
as to its truth . Thus, even if a particular employee should choose to make the
accuracy of such a claim the determinant of his action , he would obviously be unrea-
sonable in making his decision without attempting to ascertain the actual fact, inde-
pendent of the claim." But see N.L.R .B. v. H. Rohtstein & Co., 266 F. 2d 407
(C.A. 1).
b. Dema Burdette
Although Burdette testified that she signed the card without reading it under the
mistaken impression that its sole purpose was to admit her to a union meeting, her
testimony as to this misunderstanding would not vitiate the card . See Joy Silk Mills,
Inc. v. N.L.R.B, 185 F . 2d 732, 743 (C.A.D.C.), cert. denied 341 U .S. 914. More-
over , the record is clear that Burdette and Weiner discussed the names of other pos-
sible union adherents , and that Weiner explained to Burdette how he believed the
Union would benefit the employees . As I find no misrepresentation on Weiner's
part, and as the authorization card is clear and unambiguous , I find that Burdette's
card should be counted in determining the Union 's status.
DAN HOWARD MFG. CO. 815
c. Beatrice Cole
Cole testified that she signed the card without reading it, after Weiner told her that
the card "didn't mean anything," and "that it was for the voting for when they get
ready to vote." Asked by company counsel to "try to remember what it was that
[Weiner] said to [her] about when they get ready to vote," Cole replied: "He said,
'Sign that card and when election day come that card will represent voting date.' "
Cole admitted that she and Weiner had an extended discussion, that she could not
remember all of it, and that Weiner had listed some of the advantages he thought
the Union would bring to the employees. Kirsch testified that Cole told him that
"the agents from the Union were [at her house] to have her sign a card to join the
Union." This testimony comports with Weiner's that he and Cole read the card
together, and that she indicated she understood its import. I credit Weiner in this
regard; the garbled version Cole attributed to Weiner at the time she testified indicates
that her memory of the conversation is not strong, and her recollection was pre-
sumably better when she spoke to Kirsch the next day. I find that Cole's card should
be included among the valid authorizations.
d. Theoda Harkness and Mable Roseman McGee
These two employees may be discussed' together. Both of them impressed me by
their demeanor and manner of testifying as highly credible witnesses; indeed, of the
employee witnesses called by the Company in this case, I have least doubt as to the
veracity of Harkness and McGee. I note also that the latter was not employed at
the time of the hearing and appears to be a disinterested witness. According to
Harkness, she told Weiner that she was against the Union, and she signed the card
only after he told her that by doing so she would be giving the other employees who
did want a Union a chance to vote. McGee testified that she told Weiner she was
working only half days and did not need a Union as her wages were good. Weiner
then explained, according to McGee, that other girls in the shop might want the
Union, and urged her to sign to give them a chance to vote on whether they wanted
a union or not. Inasmuch as Harkness and McGee affirmatively stated to the union
representative at the signing that they were not in favor of union representation and
signed cards only to permit the Union to go to an election, I would not count their
cards as valid in determining the Union's majority status.
e. Matilda Pate
The Company urges that Pate's card should not be counted because of her testi-
mony that Weiner told her the purpose of the card was to have an election. Pate
also testified, however, that Weiner explained the advantages the employee would
derive from union representation, and that he did not say that he needed the card
to get an election. According to Pate, "He said the biggest 'majority wins and so I
guess that's why he needed the card." Pate could not remember whether the refer-
ence to an election occurred before or after she signed the card; obviously, therefore,
she did not consider that her signing had been dependent on any representations
about an election. On this record, I find that Pate's card is a valid authorization.
f. Andora Smith
Smith signed a card which she had received in the mail. She testified that prior
to her signing no union representative ever told her the card was for an election, but
that she derived such an impression from employee Burdette and from another
friend. The latter, to whom Smith spoke after she talked to Burdette, told her the
card "was for the Union and he supposed they would have an election." Under the
circumstances Smith 's card , an unambiguous designation not procured by misrepre-
sentation, should be counted. Joy Silk Mills, supra; Dan River Mills, Incorporated,
Alabama Division, 121 NLRB 645.
g. Willie Terrell and Joe Thomas
Both Terrell and Thomas signed cards on the morning of November 13 just before
entering the building housing the Company. A number of other employees, several
of whom were witnesses at the hearing, also signed cards that morning. Terrell and
Thomas, however, are the only ones in •that group who testified that they were told
the cards were only for an election. Terrell also testified that Weiner told him that
the Union would help him make more money. According toTerrell, after being told
these two matters (that the card was only for an election and that he would earn
S16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more with union representation), and without asking what Weiner meant by an elec-
tion, he signed the card "because he asked me did I want to make more money."
Thomas testified that when he told Weiner he wanted to think about it before signing,
Weiner told him the card was "temporary, for election" and he therefore signed it.
Weiner denied having told Thomas, Terrell, or anyone else that the card was solely
for an election, and Norward Batiste, who assisted Weiner in the organizing cam-
paign , corroborated Weiner. Although in general I regard Weiner as an honest
witness, I doubt that his memory as to the details of his conversations with these
employees would be as accurate as theirs, for Weiner must have interviewed close to
30 employees, some of them more than once, and it stands to reason that his recol-
lection would be somewhat blurred, whereas each individual would have only his
own conversations to recall. This is not to say that I uniformly prefer to credit the
employees over Weiner, for as noted earlier only Harkness and McGee among the
group called by the Company impressed me as thoroughly reliable witnesses. The
testimony of Batiste also raises problems of credibility. The amount of corrobora-
tive detail which he supplied tends to establish his veracity, but it is all but incredible
that his memory should have been so accurate as to events occurring 7 to 9 months
before the hearing, and so hopelessly barren of what was testified to in his hearing
only the day before. I rather suspect that Batiste was either wary or honestly con-
fused by the inquiry on cross-examination into what he had heard the previous day.
Nevertheless, under all the circumstances, I think it preferable not to rely on his
testimony.
Finally, it should be noted that Terrell, who had left the Company's employ,
should be considered a disinterested witness. Although I am by no means free of
doubt, I shall credit Terrell and Thomas that they signed their cards after being told
the purpose of the card was to get an election, and hence I shall not count their cards
in determining the Union's status.
h. Candy Wilson
Wilson signed her card after arrangements had been made for the holding of a
consent election . Under these circumstances I have little doubt that Weiner said to
her, and also to other employees after that date, that it was the election which would
"count." This, but for the Company's unfair labor practices, would have been a
true statement and one which the organizer could well make to employees who had
signed or were about to sign cards; the election, and not the card, would be what
"counted" in determining whether the Union won bargaining rights. But Wilson had
ample opportunity to read the card before signing it, had discussed union benefits
with Weiner during the meal which immediately preceded her signing the card, and
(although she denied reading the card) filled out the card in full. The testimony is
in sharp conflict as to whether the card was read aloud to her; I credit Weiner's
testimony that a Mr. Todd, who was associated with another union, but who was
present on the occasion, read the card to Wilson. Wilson testified that she was told
on that occasion that the petition for an election had already been filed. Under all
the circumstances, I find that no misrepresentations were made to Wilson, and that
her card should be counted as a valid authorization.
In sum , I find that the cards of Harkness, McGee, Thomas, and Terrell should not
be counted as valid authorizations, the first two because at the time of signing the
employees told the union representative that they were opposed to the Union and
signed only because of the representation that their signatures would help their
fellow employees have a chance to vote, and the latter two because they were told
the cards were solely for an election. This leaves the Union with 24 valid cards in
a unit of 45.5
3. Concluding findings as to the bargaining obligation
The foregoing discussion establishes that a majority of the employees had signed
authorization cards at the time of the Union's January 6 bargaining request, and that
the Company refused to recognize the Union and insisted on going to the election
which had just been arranged and was scheduled for January 21. General Counsel
urges that a bargaining order should issue, relying on the line of cases, typified by
N.L.R.B. v. Mid-West Towel and Linen Service, 339 F. 2d 958 (C.A. 7), holding
that an employer violates his bargaining obligation if he refuses the bargaining request
5 Of course, if the First Circuit's decision in the Rohtstein case, rather than the Board's
decision in Rohtstein and Top Mode, is followed , Brown's card would also fall, leaving
the Union with 23 out of 45.
DAN HOWARD MFG. CO. 817
of a union which commands a majority, and engages in unfair labor practices designed
to destroy that majority and prevent the holding of a fair election.
It would be improper to apply any "per se" doctrine that proof of majority coupled
with proof of unfair labor practices automatically leads to bargaining order. The
unfair labor practices must be substantial in nature, so as really to taint the election,
and not minor or technical infringements of the letter of Section 7. In the instant
case, however, the violations can scarcely be termed minor or inconsequential. The
Company's hostility to the Union led it to numerous coercive interviews in the
company office, accompanied by requests that the employee being interviewed report
to the employer on the "union sentiments of other employees. A threat to discharge
union leaders highlighted one of these interviews. In a speech on the eve of the
election the Company warned that a union victory could lead to layoffs. The with-
holding of regular wage increases was attributed to the pending campaign, although
the Company did not hesitate to institute other new benefits at that time, and while I
find the latter action to be lawful, it highlights the motivation attending the with-
holding of raises. Also, after instituting an ostensibly valid no-solicitation rule, the
Company directed one of its employees to violate the rule while polling employees as
to their union views. These unfair labor practices, considered as a whole, cannot
be deemed technical or inconsequential.
The Company also points out that the Union first requested bargaining in November
when it lacked majority status, and that its request of January 6 followed by I day
the execution of a consent-election agreement. Under these circumstances the Com-
pany challenges the Union's good faith, and asserts that the Company in good faith
doubted the majority claim.
It is true that the Union's November claim was unfounded, and that had the
Company acceded to that demand, it would have violated the law. But the critical
matter here is not the "right" of the Union but the "rights" of the employees. The
latter are not to be set at naught, nor even diminished in any way, because of any
wrongdoing by the Union. If a majority of the employees designated the Union to
represent them, their right to have it recognized as their representative is not to be
impaired because of its premature claims. The Company's campaign of unfair labor
practices precludes the Company from asserting that it in good faith wanted the
question resolved by a fair election; it wanted the question resolved by an unfair
election tainted by illegal conduct. The Company, in short, cannot be heard to say
that it was in good faith when it rejected the Union's January 6 request for recognition
and offer of a card check. Its rejection of that request therefore violated Section
8(a) (5). And even if it be deemed that the rejection did not violate Section 8(a) (5),
the fact remains that the Union did have a majority as of that date, and the Company
did prevent a fair election, so that effectuation of the statutory purposes and restora-
tion of the status quo ante the unfair labor practices would dictate the issuance of a
bargaining order as part of the remedy for the violations of Section 8(a) (1). See,
e.g., Summit Mining Corporation v. N.L.R.B., 260 F. 2d 894, 900 (C.A. 3), and
cases there cited; American Compressed Steel, 146 NLRB 1463, enfd. in pertinent
part 343 F. 2d 307 (C.A.D.C.) and see the cases cited by the Board, 146 NLRB
at 1471, and by the court, 343 F. 2d at 309. A bargaining order should therefore
issue here, as any lesser result, such as putting the parties to a new election, would
enable the Company to profit by its own wrong. Irving Air Chute Co., Inc. v.
N.L.R.B., 350 F. 2d 176 (C.A. 2).
M. THE REMEDY
I shall recommend the issuance of an order directing the Company to cease and
desist from violating Section 8(a)(1) and (5) of the Act,6 and, affirmatively, to
bargain with the Union upon request (a provision which I would recommend under
all the circumstances to remedy the violation of Section 8 (a)( 1) even if there had
been no violation of Section 8(a) (5) ), and to post appropiiate notices.
CONCLUSIONS OF LAW
1. The Company by interrogating and threatening employees as to their union
activities, by c nveying the impression that it kept union meetings under surveillance,
by withholding normal wage increases because of the pendency of a Board election,
' In view of the bargaining order, which will necessarily require bargaining over future
wage increases, I make no special recommendation concerning the violation heretofore
found in. the withholding of such increases.
221-731-67-vol . 168-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and by encouraging the violation by an antiunion employee of its no-solicitation rule,
has engaged in unfair labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act.
2. All production and maintenance employees employed by the Company at its.
Chicago location, including truckdrivers, shipping employees, and regular part-time-
employees (except for Toby Kirsch), but excluding office clerical employees, design-
ers, sales personnel, professional employees, guards, and supervisors as defined in
the Act, constitute an appropriate bargaining unit.
3. The Company by refusing to recognize and bargain with the Union which repre-
sented a majority of its employees has engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
Recommendations Respecting the Election
From the foregoing findings it necessarily follows that the election should be set
aside because of the Company's unfair labor practices committed after the filing of
the petition, and because of the failure to observe the 24-hour rule prescribed in,
Peerless Plywood Company, 107 NLRB 427.
ORDER
Accordingly, upon the foregoing findings of fact and conclusions of law, and on
the record as a whole, I recommend, pursuant to Section 10(c) of the Act, that
Respondents Dan Howard Manufacturing Company and Dan Howard Sportswear,
Inc., their officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with International Ladies' Garment Workers' Union AFL-
CIO, as the exclusive representative of the employees in the following appropriate-
unit- All production and maintenance employees employed by Respondents at their
Chicago, Illinois location, including truckdrivers, shipping employees, and regular
part-time employees (except for Toby Kirsch), but excluding office clerical employ-
ees, designers, sales personnel, professional employees, guards, and supervisors as
defined in the Act.
(b) Interrogating or threatening employees with respect to their union activities
or those of fellow employees.
(c) Threatening that union representation may lead to layoffs of employees.
(d) Conveying the impression that they are keeping union meetings -under
surveillance.
(e) Maintaining a no-solicitation rule while permitting or directing employees to,
engage in antiunion solicitation during working hours.
(f) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Upon request, bargain collectively with the above- named Union as the exclu-
sive representative of all employees in the above-described appropriate unit, and
embody in a signed agreement any understanding reached.
(b) Post at their plant at Chicago, Illinois, copies of the attached notice marked
"Appendix." 7 Copies of such notice to be furnished by the Regional Director for
Region 13, shall, after being signed by an authorized representative of the Respond-
ents, be posted immediately upon the receipt thereof, and be maintained 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
Respondents to insure that such notices are not altered, defaced, or covered by any
other material.
(c) Notify the said Regional Director, in writing , within 20 days'from receipt of
this Decision, what steps the Respondents have taken to comply herewith.s
7 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
. 5In the event that this Recommended Order be 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 Order , what steps the Respondent has taken to comply herewith."
SOUTHBRIDGE SHEET METAL WORKS, INC. 819
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain upon request with International Ladies' Garment Workers'
Union, AFL-CIO, as the exclusive representative of our production and mainte-
nance employees.
WE WILL NOT question our employees as to their union activity or that of
fellow employees.
WE WILL NOT threaten to discharge employees for union activity.
WE WILL NOT Spy on union meetings or give our employees the impression
that we are doing so.
WE WILL NOT enforce our no-solicitation rule in such a manner as to permit
employees to engage in antiunion solicitation during working time.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to join or assist a union, to bargain
collectively through representatives of their own choosing , and to engage in
other concerted activities for mutual aid or protection.
DAN HOWARD MFG. CO. AND DAN HOWARD SPORTSWEAR, INC.,
Employer.
Dated------------------- By-------------------------------------------
(representative) (Title)
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 881
U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois, Telephone No. 828-7597.
Southbridge Sheet Metal Works, Inc. and Sheet Metal Workers'
International Association, Local 127, AFL-CIO. Case No.
1-CA-4803. May 11, 1966
DECISION AND ORDER
On February 15, 1966, Trial Examiner A. Bruce Hunt issued his
Decision 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 Deci-
sion . Thereafter, the Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering brief.
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 [Members Fanning, Brown, and Zagoria].
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
158 NLRB No. 78.