Mr. Wicke, Ltd Co.

National Labor Relations Board - Board Decisions

Apr 20, 1970

182 N.L.R.B. 38 (N.L.R.B. 1970)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr Wicke , Ltd Co and Local 151 , International Ladies'
Garment Workers ' Union , AFL-CIO Cases
1-CA-6651 1-RC-10258 and 1-RM-716
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
April 20, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 27, 1969, Trial Examiner John M Dyer,
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision The Trial Examiner found,
in addition, that the Respondent's unlawful conduct
had interfered with a Board election held on January
9, 1969, and recommended that the election be vacated
and set aside Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a supporting
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 con-
nection with this case to a three-member panel
The Board has reviewed the rulings of the Trial Exam-
iner 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 brief, and the entire record in these
cases, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner , and hereby orders that the
Respondent, Mr Wicke , Ltd Co , New Haven , Connect-
icut , its officers , agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's Recom-
mended Order
IT IS FURTHER ORDERED that the petitions in Cases
1-RC-10258 and 1-RM-716 be, and they hereby are,
dismissed, and all proceedings held in connection there-
with be, and they hereby are, vacated
' Although we agree with the Trial Examiner that the Respondents
refusal to bargain with the Union violated Section 8(a)(5) and (I)
and that a bargaining order is appropriate under N L R B v Gissel
Packing Co 395 U S 575 in rendering our decision we do not find
it necessary to adopt or rule upon his finding of bad faith in Respondent s
refusal to bargain
JOHN M DYER , Trial Examiner On March 21, 1969,'
Local 151, International Ladies Garment Workers'
Union , AFL-CIO, herein called either the Union or
the ILG, filed its charge in this matter , alleging that
Mr Wicke , Ltd Co , herein variously called Respond
ent, the Employer , or the Company had violated Section
8(a)(1) and (5) of the Act
On October 7, 1968 , the Union filed its petition for
an election (Case 1-RC-10258) and on October 9, 1968,
the Company filed its petition (Case 1 -RM-716) The
Union and the Company executed a Stipulation for
Certification Upon Consent Election on November 22,
1968, setting the election for January 9, 1969 Of the
approximate 40 eligible voters, 12 voted for the Union
and 21 against , for a total of 33 ballots The Union
filed timely Objections to Conduct Affecting the Results
of the Election on January 16, and on March 7 the
Regional Director of Region 1 issued his report on
objections in which he found no merit to the Union's
Objections 1 and 3 and recommended that they be
overruled He did find merit to Objection 2 and recom-
mended that the objection be sustained , the election
set aside , and a new election conducted at an appropriate
time and place The Employer and the Union filed
exceptions to the Regional Director ' s report The Board
while considering the matter was informed that following
the filing of the charge herein the Regional Director
intended to issue the present complaint which would
treat with issues raised in Objections 1 and 2 The
Board on May 14 issued its order directing a hearing
be held for the purpose of receiving evidence to resolve
the issues raised by Union ' s Objections 1 and 2, stating
that the issues could thus best be resolved and that
such hearing be consolidated with any hearing to be
conducted in the present case 2
On May 22 the Regional Director issued his order
consolidating cases together with the instant complaint
and notice of hearing Respondent ' s answer as further
amended at the hearing narrowed the issues, in that
Respondent admitted the filing of the charge , the status
of the Union, the necessary commerce information,
and the conclusion that Respondent ' s operations come
under the Board's jurisdiction The supervisory status
of Respondent President Stanley Zwicker and his son,
Vice President Jeffrey Zwicker, were admitted In the
representation proceedings and the election agreement,
' Except for events referred to as background in this case the
events herein took place during the late fall of 1968 and the first
part of 1969
R At the hearing in this matter the Company for the first time
raised a question as to whether the Union s exceptions to the Regional
Director s report were timely filed and asked for dismissal of the
Union s exceptions on the basis of untimely filing I denied the Compa
ny s motion on the grounds that it had not raised this objection at
an appropriate time before the Board and the Board had in effect
found the Union s exceptions to be timely filed in issuing its May
14 order directing a hearing on the matters
182 NLRB No 10
MR. WICKE , LTD. CO.
the parties agreed that the appropriate unit of Respond-
ent's employees was the following:
All production and maintenance employees
employed by Respondent at its New Haven, Con-
n necticut, plant, including shipping and packing
employees, but excluding office clerical employees,
professional employees, guards and, supervisors as
defined in the Act.
Respondent admitted that the Union had requested it
to bargain collectively on or about October 1, 1968,
and that it refused and continues to refuse to bargain
collectively with the Union, butdenied that such action
violated the Act.
In, regard to specific allegations in the complaint,
Respondent admitted it posted a cartoon in the plant
next to the timeclock in December 1968 and that its
president, Stanley Zwicker, gave two speeches to
employees and distributed a letter or leaflet dated Decem-
ber 31, 1968. Copies of the cartoon, the letter, and
the two speeches were received in evidence by stipulation
of the parties. Respondent denied that by these. speeches,
the letter, and the cartoon it had threatened its employees
with loss of employment or shutdown of its plant if
the Union won the election. Respondent admitted grant-
ing a November 22, 1968, 5-cent wage increase to I
unit employee, a November 29, 5-cent wage increase
to 26 unit employees, and a November 29, 10-cent
wage increase to 2 unit employees. These wage increases
were given between the time the election agreement
was signed and the date of the election.
Respondent admitted granting wage increases of 5
cents to 22 unit employees, 10 cents to 8 unit employees,
and 25 cents to 1 unit employee on January 17, 1969,
the day after the Union filed its Objections to Conduct
Affecting the Results of the Election. Respondent admit-
ted placing in effect a Blue Cross-Blue Shield medical
and hospitalization plan for employees on or about April
1, 1969. Respondent denied that any of these actions
violated the Act.
At the hearing conducted on July 30, 1969, in New
Haven, Connecticut, all parties were afforded full oppor-
tunity to appear, to examine and cross-examine witness-
es, and to argue orally. General Counsel, Respondent,
and the Union have all filed briefs which have been
carefully considered.
On the entire record in this case, including my evalua-
tion of the reliability of the witnesses based on the
evidence received and my observation of their demeanor,
and on the fact that some substantial portions of the
evidence were not denied or explained, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND
THE LABOR ORGANIZATION INVOLVED
Respondent is a Connecticut corporation maintaining
its principal office and place of business in New Haven,
Connecticut, where it is engaged in the manufacture,
sale, and distribution of women's wearing apparel.
39
Respondent annually receives directly from points out-
side of Connecticut cloth, machinery, and other materials
valued in excess of $50,000 and annually ships women's
wearing apparel valued in excess of $50,000 directly
to points outside of the State.
Respondent admits and I find that it is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
Respondent admits and I find that the Union herein
is a labor organization within the meaning of Section
2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
In a previous case (172 NLRB No. 181) involving
'the Company, the Union, and Local 443, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Teamsters,
the Board determined that the Company violated Section
8(a)(1) and (2) of the Act in making various threats
to employees of loss of employment and other economic
reprisals if they did not sign checkoff cards for the
Teamsters, and by recognizing and entering into a con-
tract with the Teamsters at a time when the Teamsters
had not been validly authorized to represent Respond-
ent's employees. The Board ordered the Company to
withdraw and withhold recognition from the Teamsters
and not deal with it concerning grievances, labor dis-
putes, etc., "unless and until such labor organization
[Teamsters] has been certified by the Board, following
a Board-conducted election, as the exclusive bargaining
agent of [Respondent's] employees."
In that case the Board reversed the Trial Examiner's
finding that Respondent had violated Section 8(a)(5)
by not recognizing and bargaining with the ILG. The
Board stated that though the ILG had apparently secured
valid authorization cards from a majority of the employ-
ees, as the Trial Examiner found, Respondent apparently
intended to raise the question of majority status and
due to the fact that only one isolated violation of Section
8(a)(l) had taken ;place within the 10(b) time period
limitation established by the Act, the Board could not
find that "a real question concerning representation did
not exist and that the Respondent Company could not
have doubted in good faith the ILGWU's claim to majori-
ty status when it refused to honor the ILGWU's bargain-
ing request." The Board issued its decision on August
22, 1968, and denied a petition for review of its decision
on September 11, 1968.
Respondent objected to the General Counsel's citation
of this case to the Trial Examiner. General Counsel
alleged that the case would provide background informa-
tion concerning the instant case. In examining the
speeches made by Stanley Zwicker I find references
to the previous case. I consider that the previous case
does provide important background information for the
interpretation of facts and statements which might appear
otherwise to be ambiguous or innocuous. None of the
parties offered any testimony regarding the December
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
31, 1968, letter or leaflet from Stanley Zwicker to the
employees or concerning his two speeches to the employ-
ees on January 6 and 8,. 1969. The 'parties agreed that
the copies of the leaflet and the two speeches which
were attached as appendixes 2, 3, and 4 to the Regional
Director's report were what was given to the employees,
and, as part of the formal papers, were before me.
Therefore my consideration as to whether they could
have affected the conduct of the election and, further,
whether they violated Section 8(a)(1) of the Act and
would serve as an underlying basis for an 8(a)(5) finding,
must be made on consideration of those documents
in the circumstances and against the background of
the events.
None of the parties gave any, testimony concerning
the, November or the January wage increases 'granted
'by Respondent. Contrary to Respondent's position as
stated on pages 12 and 13 of its brief, Jeffrey Zwicker's
testimony related solely, to the change in the Blue Cross-
Blue Shield plan and had no bearing on the January
wage increases. In fact' his testimony concerned a"deci-
sion made in early February ' 1969 to make the change
in that plan and thus could have had no reference
to wage increases given some 3 weeks prior thereto
Respondent additionally argues in its 'brief that, in
investigating the objections to the election, the Regional
Director determined in his report that the'wage increases
given prior to the election in November 1968 may have
been part of a continuing pattern to give wage increases
at changeover times in the fall. After citing the Regional
Director's statement in this regard, Respondent's brief
states: "We submit-that General Counsel (did not) put
on any evidence in the above matter pertaining to the
increases given before the election took place, therefore
the findings of the Regional Director as to this issue
must be upheld and the Charge pertaining thereto dis-
missed."
Respondent overlooks the, Board's Order which in
effect overturned the Regional Director's decision regard-
ing Union's Objection I and specifically ordered that
evidence be taken regarding the matters alleged in both
Objections 1 and 2 in the instant proceeding. The General
Counsel alleged in the complaint that the granting of
the wage increases in November 1968 unlawfully inter-
fered with the` conduct of the election held on January
9, 1969, by coercing Respondent's employees in their
selection of bargaining representatives, and that such
conduct prohibited the, employees from making a free
and untrammeled choice in the election. Further the
General Counsel alleged'that those 'increases together
with other Respondent actions violated Section 8(a)(5)
and (1) of the Act in that they were part of a course
embarked on by Respondent to undermine the Union
and dissipate the Union's majority status. The General
Counsel in not putting on any evidence in regard to
the wage increases relied on the fact of them and their
timing to the election (facts which Respondent's answer
admitted) to establish a prima facie case of Respondent
interference with the election process and as violations
of Section 8(a)(1).
Considering only the preelection increases the record
before me shows that reasonably substantial increases
were granted by Respondent to most of the unit employ-
ees in the period between the execution of the election
agreement and the election . Respondent , mistakenly or
'otherwise , offered no explanation in this proceeding
to demonstrate that there were any other factors which
led to these wage increases other than the pendency
of the election . The Board has held that the burden
of going forward and demonstrating that there were
other factors which led to the granting of such increases
is upon the employer . In N.L. R.B. v. Exchange Parts
Co., 375 U.S. 405, the Supreme Court stated in finding
such increases to be violative of Section 8(a)(1) of
the Act, that , " the danger inherent in well-timed increas-
es in benefits is the suggestion of a fist inside the
velvet glove . Employees are not likely to miss the infer-
ence 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 " The Board
has in many cases held that such action , sufficiently
inhibits employees' expressing their free choice in an
election to warrant setting aside that election.
Considering the postelection wage increases, we are
faced with a similar issue in that these unexplained
January wage increases were given by Respondent the
day after the Union filed , what I find to be valid objec-
tions affecting the conduct of the election , while the
status of the question concerning representation was
still unresolved . These postelection wage increases were
larger than the November increases and the timing of
them is such,as to demonstrate that Respondent sought
to assure that the employees would continue to reject
the Union . The Board ' s recent decision in Garland
Knitting Mills of Beaufort , South Carolina , Inc., 178
NLRB No. 62,, appears to reaffirm that such acts by
Respondent constitute 8(a)(1) violations as stated by
the Board in Ralph Printing & Lithographing Co., 158
NLRB 1353, and taken together with the preelection
conduct and other Respondent conduct demonstrates
that a bargaining order is necessary to redress the viola-
tions.
Vice President Jeffrey Zwicker testified that the Com-
pany had a Blue cross -Blue Shield plan, whose cost
was borne by the employees , which was in effect prior
to the advent of the 1968 union campaign and that
the plan when put in effect was the best plan available.
Zwicker testified there were conversations with the Blue
Cross-Blue Shield representative over a period of years
`and that in January or February 1969 he heard of a
low-cost rider which would pay for a semiprivate room.
Respondent thought that the minimal cost of the rider
made it so attractive they decided to add it to their
plan. Zwicker later testified that it was prior to the
'election when Respondent determined to put this rider
into effect as soon as they could do so.
On April 1, 1969, Respondent made its Blue Cross-
Blue, Shield plan noncontributory for employees and
paid for the employees ' policies although employees
continued to pay for coverage of a spouse or dependents
if they desired . Jeffrey Zwicker testified Respondent
MR WICKE, LTD CO
had wanted to make the policy noncontributory for
over a year and a half, but did not do so for economic
considerations According to him, Respondent in early
February 1969, some 3 or 4 weeks after the election,
made the decision that it was economically feasible
to change the plan to a noncontributory status and
the change was thereafter made The underlying econom-
ic considerations according to Jeffrey Zwicker were
that Respondent had lost four skilled operators on the
day of the election (January 9) to another garment
manufacturer in the same building and it felt it must
offer the employees something to prevent a high rate
of employee turnover, particularly among skilled employ-
ees He stated Respondent thought the four might possi-
bly have left for higher wages and because they were
lured away by the other manufacturer Zwicker stated
that the Union's losing the election on that day might
have been a cause in the four employees' departure
According to Jeffrey Zwicker the other manufacturer
had started sewing operations the previous fall although
it had been in the same building for over 2 years
Zwicker acknowledged that another ILG manufacturer
had been in the same building for over 5 years Respond
ent's annual turnover rate of employees was approxi-
mately 40 percent but Zwicker said this was mostly
in the unskilled group Since there are no elevators
in the building and everyone must use a common stair-
case there must have been some contact between the
employees of the various companies
It would seem that if there were a labor crisis, as
Jeffrey Zwicker testified, it occurred immediately when
the four employees left If Respondent was worried
about others leaving it would have decided to offer
better working conditions (the Blue Cross plan) when
the crisis occurred rather than some 3 or 4 weeks
later There was no testimony that any other employees
left in the interim or were contemplating doing so,
even up until April 1
There is no other testimony regarding the decision
to change the Blue Cross plan or the implementation
of the change Therefore the question as to the purpose
in making the change and putting it into effect must
be resolved on the testimony of Jeffrey Zwicker and
the surrounding circumstances Respondent's brief
claims that the change in the plan was contemplated
for over a year but that Respondent was held up by
economic conditions and the fact the t a decision was
pending in the prior case As noted above the Board
issued its decision in August 1968 and denied a petition
to review its decision in September 1968 which would
appear to remove the pendency of that case from the
issues if indeed it were ever one The essence of Jeffrey
Zwicker's testimony is that the possibility of losing
other skilled help made the change in the plan economi-
cally feasible
However, as noted above, the timing of the decision
appears wrong if it was prompted solely by a "labor
crisis " Other things must have entered into the decision
which was not made until February Zxyicker intimated
that a sign posted by one of the building's occupants
41
that he was paying ILG benefits may have influenced
the decision as a partial answer to that announcement
I conclude that one of the reasons influencing the
change was a continuation of Respondent's policy of
granting postelection benefits to its employees in keeping
with its statement that they would fare better without
a union Respondent, knowing of the Union's objections
and with experienced counsel, recognized the possibility
that there might be another election and Respondent
was in the position of wishing to reward its employees
for voting against the Union and wishing to assure
itself of continued employee support
Since I find that part of Respondent's reason for
changing the Blue Cross-Blue Shield plan was to reward
its employees for voting against the Union and assuring
their continued support while the representation proceed-
ings remained unresolved, I must also find that said
actions violated Section 8(a)(1) of the Act in the same
manner as did the postelection wage raises and constitut-
ed a further effort by Respondent to assure itself that
the Union's preelection majority status had been dissipat
ed
Considering only the preelection raises I find that
the facts alleged in Union's Objection I have been
proven and that Respondent has not offered countervail-
ing evidence and recommend that the objection be sus
tamed
B The Cartoon, the Letter, and the Speeches
Jeffrey Zwicker testified that, some 2 or more years
prior to December 1968, he clipped a cartoon from
a newspaper he thought was the Wall Street Journal,
and kept it Following the election agreement he asked
an employee to redraw the cartoon and then he posted
it on the plant bulletin board where it remained for
about a week The cartoon (appendix I to the Regional
Director's report in the Board's formal papers) shows
an apparently happy man bearing an "On Strike" sign
coming home and saying to a distressed wife holding
a rent bill, "Well We Won The Company Went
Out Of Business"" No other significant testimony was
offered concerning the cartoon
The question to be answered is whether the cartoon,
Stanley Zwicker's December 31 letter, and his two
speeches of January 6 and 8 constitute threats to employ-
ees of loss of employment and plant shutdown in viola-
tion of Section 8(a)(1) and whether this antiunion cam-
paign interfered with the employees' freedom of choice
in the election This campaign must also be assessed
against the November raises given to the employees
and the prior case which Zwicker referred to in his
speeches
Following the tone setting cartoon, Zwicker in his
December 31 letter stated he did not know whether
the employees would be together the following year
and that there should be no layoff unless the plant
was shut down by the ILG He stated he would close
the plant before he would let the Union tell him to
fire an employee and he concluded with a thinly disguised
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat that at his age, and presumably at the age of
some of the employees, it was hard to find a job.
Zwicker's statement about closing the plant before
allowing the Union to tell him to fire an employee
presumably meant he would not sign a union-shop con-
tract. This line was abandoned in Zwicker's January
6 and 8 speeches in which he warned the employees
that they could be fired if they did not pay dues under
a union-shop contract and the way to guarantee that
would not happen was to vote against the Union.
The two speeches contained a consistent theme that
if the Union were successful in organizing the plant
there would be a strike and with only one customer
the Company would go out of business and the employees
would lose their jobs, since even if the Company hired
replacements the Union could not force the Company
to take back the strikers.
Zwicker stated that the employees knew the Company
had previously urged them all to join the Teamsters
and said he had received bad advice. He told the employ-
ees they now had the services of a labor relations
expert and referring to the election agreement said:
It was through this man that we determined the
day on which the election would take place, the
place where it would be held, and the time it
would take place; and Mr., Cooper and the Union
lawyers from New York couldn't do a thing about
it. This is one of the reasons we have told you,
and we are telling you now-don't let the union
organizers or their two or three stooges in here
scare you or fool you.
The impression from this statement is that the deci-
sions on the election were made solely by the Company
without any participation by the Union and that the
National Labor Relations Board had sanctioned the Com-
pany's decision. Such a statement of itself would tend
to make the employees doubt that a free and fair election
could be held since, according to Respondent, it alone
was responsible for all the decisions regarding the elec-
tion.
Zwicker's speeches sought to create dissension in
the union ranks by claiming that those employees work-
ing for the Union were paid stooges who would continue
to be paid by the Union while striking employees would
receive nothing and would lose their jobs. Referring
to an alleged union promise that it would see that
Respondent got other work if it lost the John Meyer
account, Zwicker stated the Union, would not do so
but rather would try to keep Respondent from getting
work in order to help the Union's other members all
to the harm of the 40 or so Respondent employees.
This is a return to the refrain that the Union only
wanted to put Respondent out of business and would
violate its duty to represent the employees' interest.
Zwicker stated that he knew improvements should
be made but that he could not do so while they were
having union trouble and that the employees stood to
lose if the Union got in but they would gain if the
Union were defeated. This statement blames the Union
for Respondent's not making improvements and threat-
ens harm if the Union is successful and promises benefits
if it is not.
On several occasions in his speech Zwicker used
the phrase "in my opinion" in an apparent attempt
to place his speech in the so-called "free speech" area
and to qualify the remarks as predictions of what might
happen. But Stanley Zwicker is the president of Respond-
ent and the one who will decide the course Respondent
would take in negotiations with the Union. Further,
these speeches were given by Zwicker as expert advice
by a savant to unlearned employees as to what was
best for them and was not the opinion of a minor
supervisor. Here the hand that controlled.the Company's
course of action vis-a-vis the Union was telling the
employees what would happen if they were foolhardy
enough to select the Union as their bargaining agent.
The clear import of this campaign could not be missed
by the employees. I find that the campaign, by the
cartoon, the December 31 letter, and the January 6
and 8 speeches, interfered with the employees' freedom
of choice in selecting a bargaining representative and
further violated Section 8(a)(1) of the Act by threatening
the employees with loss of their jobs or a plant shutdown
if they chose the Union to represent them. Accordingly,
I will recommend that the Union's Objection 2 be sus-
tained.
In summary, I have found that Respondent committed
the conduct complained of in Union's Objections I
and 2 and recommend they be sustained and the results
of the election of January 9, 1969, be set aside. I
have also found that by these same acts and by other
postelection acts Respondent violated Section 8(a)(1)
of the Act and made the holding of a free and fair
election impossible, while undermining the Union's
majority status, in endeavoring to prevent collective bar-
gaining with the Union. Hereafter, I find that the Union
enjoyed a majority status at the time of its October
1, 1968, demand for recognition and bargaining and
that Respondent by the above actions in refusing to
bargain violated Section 8(a)(5) of the Act. Therefore
I will recommend that the petitions in 1-RC-10258 and
1-RM-716 be dismissed.
C. The'Union 's Majority Status
Bert Cooper,' manager of the Connecticut Ladies'
Garment Workers' Union, testified he sought to organize
Respondent's employees since the fall of 1966, and
that he personally met and worked with a large number
of Respondent's employees in various phases of, the
organization. He testified that in the fall of 1968, some
2 weeks after the Board's denial of the petition for
a review of its decision in the prior case, he held
a meeting at the union hall in New Haven for the
purpose of getting new authorization cards signed by
the employees. At this September 25 meeting, Union
Agents Jill lannone and Peter DeGiacomo were present
together with 19 Respondent employees, in a room Coop-
er described as being about 15 by 13 feet. He testified
that blank union authorization cards in English and
Spanish were handed out to the 19 employees, each
MR. WICKE, LTD. CO. 43
of whom he knew, since he had worked with them
in the prior organization campaign. He told the employ-
ees that, if they wanted the Union to represent them,
a majority of the employees would have to sign authoriza-
tion cards designating the Union as their collective-
bargaining agent . He said the Union could then ask
the Company for recognition and, if the Company re-
fused , they could get bargaining rights by an election
or by a strike. An examination of the cards establishes
that they are clear, unambiguous designations of the
Union as the employees' bargaining agent.
Cooper testified that he observed all of the 19 employ-
ees at this meeting filling in and signing their authorization
cards.. The cards were then collected by Jill Iannone
and Peter DeGiacomo and brought to Cooper at the
desk in front of the room where he checked over each
card making sure it was completely filled out and signed.
Cooper testified he spoke only in English, but that
on the union committee , which was elected at that
time , were two employees who spoke Spanish and were
available to assist any of the Spanish -speaking employees
in completing their union authorization cards. Cooper
then identified the authorization cards marked G.C.
Exhs. 2(a) through 2(s). The 19 employees whose names
and signatures appeared on these cards, as per Cooper's
testimony, were all then employed by Respondent.
During cross-examination Cooper was asked whether
he personally observed the signature being placed on
each of the 19 cards and replied that he was standing
in-the front of the room by a desk and that,•in looking
around the room while the employees were filling in
and signing, the cards, he observed their doing so and
jr this. way, and by later observation, of the cards after
they were collected, assured himself that each of th'e^
cards,was filled in and' signed by eachof the f9'employeds
present at this meeting.
After these 19 authorization cards G.C. Exhs. 2(a)
through 2 (s) were so identified , their admission into
evidence was moved by the General Counsel. Respond-
ent objected saying that it would have no objection
if Respondent had the right to check the signatures
against its records. Respondent was allowed to do so
and utilized a long luncheon recess for this purpose.
Respondent voiced another objection to receipt in evi-
dence of the cards, stating that the identification of
the authorization cards was not proper , in that the
individual card signer must necessarily be present for
questioning by, Respondent to establish the identity of
the cards.
Following the luncheon recess Respondent stipulated
to the authenticity of the signatures on cards 2(c), 2(d),
2(e), 2(f), 2(g), 2(h), 2(i), 2(m), 2(o), and 2(q). With
regard to the nine other cards Respondent said it had
some question as to the authenticity of the signatures
on those cards . After some extensive colloquy, Bert
Cooper was recalled to the stand for further examination
by Respondent concerning the nine cards Respondent
said it questioned. During the colloquy Respondent again
proclaimed its "right" to question the signers of the
authorization cards as to the background of their signing
them. Cooper was questioned by Respondent regarding
where each of the nine individuals was in the room
at the September 25, 1968, meeting and to each inquiry
he replied that he did not recall precisely where the
person was but only knew the person and knew the
person was in the room. Concerning each of the nine
cards Cooper stated he knew the person and saw the
person among others signing and completing the authori-
zation cards. Examination of the cards discloses no
irregularity.
At the conclusion of the voir dire examination,
Respondent objected to the introduction of these nine
cards on the sole basis that it said the General Counsel
had a duty to produce all the card signers to identify
their own signatures and to give Respondent an opportu-
nity to question them on the background leading up
to their signing those cards The objection as stated
was overruled and the 19 authorization cards were
received in evidence.
Jill Iannone testified that she visited employee Berta
Bernabeo at her home and explained to her that the
purpose of the cards was to authorize the Union to
act as the collective -bargaining agent for Respondent's
employees. The card (G. C. Exh. 6) is in Italian and,
according to Iannone , Berta read it and asked Jill lannone
to fill in the card which Berta then signed and dated.
This card was received into evidence without objection.
Berta Bernabeo was an employee of Respondent at
that time.
Employee Clementina Lincoln testified that she gave
out union authorization cards and received from employ-
ees four signed cards, which were identified as G. C.
Exh. 7(a) through (d). These were the cards of Elsa
1?efgado; Mmrgereta G'ol'dberger, Mattie Mims, and Con-
cefta' 12ag'eriese. Prior to Mrs. Lincoln's testimony
kespon'dent had stipulated to the authenticity of the
cards, of Efsa 6e1gad'O'9 Margereta Goldberger, and Con-
cetta Ragenese. Clementina Lincoln testified that each
of the four, who were all employed by Respondent
at the time, signed the authorization card in her presence
and dated it, after having read it. She testified that
she told each of them that if she wanted Cooper and
the Union to represent her, to read the card and sign
it.
Respondent stated that its only objection to the receipt
of these four cards in evidence was that it did not
know what led to the signing of the cards by the individ-
ual employees and that Respondent thought it had a
right to question each individual on why she signed
the authorization card . This objection was overruled
and the four cards were received in evidence.
Josephine Colon attended the September 25 meeting
and took blank authorization cards which she later dis-
tributed to a number of employees . She testified that
she gave blank cards to Esperanza Garcia, Ana Pabon,
Lucy Rosario, Carmen Zayas, Anna Mendez, and Petra
Mercado and that each of these employees gave her
a signed and dated card back . She testified that all
of these cards were in Spanish and that each of these
employees reads and speaks Spanish. She stated that
when she gave them the blank cards she told them
that if they wanted a union they would have to sign
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the cards and if they did not want a union not to
sign the cards Each of the six employees were then
employed by Respondent
Respondent objected to these six authorization cards
on the sole basis that the General Counsel was not
bringing in the individual signatories of the cards so
that Respondent could question them on the background
and their reasons for signing the cards As the sole
basis for Respondent ' s objection to receipt of these
cards, the objection was overruled and G C Exhs
8(a) through (f) were received in evidence
Carrie Winfrey testified that she received a card at
her home and filled it out , signed it , and dated it the
same day, September 25
Respondent originally offered ' to stipulate the authen
ticity of this card , and, when it was offered in evidence
following Carrie Winfrey's testimony , Respondent stated
that it objected to the receipt of the card on the same
basis that it had objected to the other cards Respondent
then stated it wanted voir dire examination and asked
whether Winfrey attended the September 25 meeting
She testified she did not Respondent then made no
objection to the receipt of this authorization card which
was received in evidence
As above described , 31 union authorization cards
were received in evidence as valid expressions of the
employee signatories ' intent to authorize the Union to
bargain collectively for them Thus, as of October 1,
when the Union made a demand for recognition on
Respondent , it had signed authorization cards from 31
of the 45 employees then on the Company 's payroll
in an appropriate unit and thus represented a majority
of Respondent ' s employees
On October 1, Bert Cooper together with Jill lannone
and Peter DeGiacomo went to the Company' s plant
and met with Stanley Zwicker Cooper testified that
he handed Zwicker his business card , said that he repre-
sented a majority of the workers employed by the Com
pany, and was prepared to prove his majority by a
card count , through either the State or Federal mediation
services or a mutually acceptable third party Cooper
testified he had the authorization cards in his hand
at the time, and so told Zwicker Zwicker said he
did not care how many cards Cooper had or who he
represented , that he did not have to answer him and
was going to leave it to the government and seek legal
advice Cooper stated that as he left he gave Zwicker
a letter (G C Exh 3) which stated that the Union
represented a majority of the production and mainte
nance unit employees and that the Union was prepared
to demonstrate its majority by a card count which could
be conducted by an independent party such as the
State Labor Relations Board, State Arbitration and Medi-
ation Service , the Federal Mediation and Conciliation
Service , or a similar agency or any mutually acceptable
impartial third party After leaving the plant the Union
sent Zwicker a telegram stating that it was confirming
its visit to the plant and was prepared to prove it
represented a majority of Respondent ' s employees and
was demanding recognition
An oral demand accompanied by a letter and followed
by a confirming telegram was the same way in which
the Union made its demand on Respondent in November
1966, as found by the Board in the prior case
Stanley Zwicker testified that when Cooper came
into his office with two other people on October 1
and made the demand for recognition , Zwicker replied
he didn't believe that could be true because he didn't
think his girls would do so, and added' ' we have a
case pending what do you want from me9" Zwicker
testified that they were in the middle of a case (the
prior case ) and he wouldn't believe a claim that the
ILG had a majority of his girls He testified that Cooper
did not say he could prove the majority but said Cooper
had an envelope with him which he laid on the desk
and then took back He said Cooper did not show
him any cards Zwicker testified he did not recall any
letter being left at the office that day but he believed
they got a telegram from the Union the following day
Despite this testimony, Respondent ' s answer admitted
that a demand for recognition was made upon it on
October 1
Respondent bases its refusal to recognize the Union
on several things First, Respondent argues in its brief
that in the prior Board case the Board ordered the
Employer to withdraw and withhold recognition from
the Teamsters Local or any successor labor organization
as the representative of its employees, unless and until
said labor organization was certified by the Board as
the exclusive representative of such employees, and
that, this injunction must apply to the ILG Respondent
states that the Company was inexperienced in labor
matters and that the Board ' s use of the term "successor
organization" is confusing and subject to interpretation
Respondent states that
The only possible interpretation , even for one expe-
rienced in the field would be that it referred to
any other union that would be successful in weaning
the employees away from the Teamsters-in this
instance the Petitioner This being so the Employer
Respondent herein , using the plain meaning of the
words honestly felt that before he could recognize
any union or bargain with any union , it had first
to be Certified by the National Labor Relations
Board
Putting things in proper prospective we have the
fact that the ILG was the Charging Party in the former
case and clearly could not stand in the position of
being a successor to the Teamsters organization which
the Employer had aided in violation of the Act Besides
the fact that Respondent offered no testimony to substan-
tiate this claim , the reasoning is fallacious and must
fail from its lack of any weight
Respondent next argues that the Union did not offer
to demonstrate proof of its majority, based on Stanley
Zwicker' s statement that no one showed him any union
cards However , the clear testimony of the Union was
that the offer was made orally, in writing , and by tele-
gram Stanley Zwicker testified that his memory was
not of the best and I reject his testimony in this regard
MR. WICKE , LTD. CO.
and find that a firm offer to prove majority was made
by the Union and was rejected by Respondent.
The Union thereafter filed a petition and 2 days later
Respondent filed its petition. Respondent's brief claims
that in following this course of action Respondent was
following the advice of one of the Board members
who in a speech said that if a union makes a demand
by showing cards the safest course for an employer
to follow was to file a petition for an election. Respondent
neglects to add that in filing a petition for an election
Respondent must also refrain from violating the Act
by attempting to undermine a union majority by commit-
ting unfair labor practices Further there is no testimony
by Respondent here that it was following this advice.
Respondent infers that Stanley Zwicker doubted the
Union's majority.- A good-faith doubt of majority must
be based on something. Respondent offered nothing
more than Zwicker's statement that he didn't think
his girls would do so to substantiate its claim of a
good-faith doubt of the Union's majority. There should
be some tangible evidence to bottom this declaration
on, but none was offered other than linking this claim
with the fallacious reasoning regarding the Board's deci-
sion in the prior case. If Zwicker doubted the Union's
majority it was not based on any tangible fact or'evidence
adduced in this proceeding. If he did in fact doubt
the Union's majority status it may have been because
his pride was hurt to think that his employees would
authorize the Union to bargain for them. But this is
not'a good-faith doubt founded on something tangible.
Respondent's unfair labor practices demonstrate that'
the doubt if any was in bad faith
D. Conclusions
Fhave found that Respondent did not have a valid
basis for doubting the Union's majority in relying on
the Board's Order in the prior case nor did Respondent
show any basis for a good-faith doubt of the Union's
majority at the time the demand was made upon it
by the Union on October 1, 1968. The Union had a
clear valid majority and offfered to prove it. Respondent
rejected the offer. The Union then filed a petition for
an election followed 2 days later by the Respondent's
petition. In the time between the petition filings and
the election, Respondent engaged in the antiunion cam-
paign described above, seeking to undermine the Union's
majority status by threatening, the employees with the
inevitability of a strike if the Union were successful
in organizing the plant and the inevitability of the employ-
ees' loss of their jobs if, they did strike. This campaign
was carried on in a series of speeches, a leaflet, and
Respondent's cartoon. To further show its power to
effect the employees' wages, Respondent gave a series
of wage increases in November a little more than a
month prior to the election. The natural effect of these
raises would be to demonstrate to the employees that
Respondent was the source of benefits the employees
might receive. This, coupled with Respondent's antiunion
campaign predicting disaster for the employees if the
Union came in, could only have the effect of underlining
45
for the employees that they were dependent, upon the
Company for any benefits they might receive, and affect-
ing and undermining any reliance they might have on
the Union. '
Respondent in its brief claimed that the Regional
Director's statement in his report on objections fore-
closed any decision by me as to the effect of the wage
raises. Respondent overlooked that the Board specifically
ordered that I take evidence in regard to these matters.
Respondent chose not to offer any evidence as to why
it put the wage increases into effect in November 1968.
I therefore have no alternative but to decide that the
natural effect of such, an event is what Respondent
intended and therefore that Respondent made these wage
increases in November for the express purpose of under-
mining the Union's majority.
Similarly, following the election Respondent gave
other wage increases to the employees and effectuated
a change in the Blue Cross-Blue Shield plan. Respond-.
ent's reasons for the January 1969 wage increases follow-
ing the election were not given. As stated heretofore,
I find that these increases and the change in the Blue
Cross-Blue Shield plan were continuations of Respond-
ent's efforts to demonstrate to the employees that it
alone held the complete determination of their future
welfare and that its actions violated Section 8(a)(1) of
the Act.
Thus Respondent in bad faith refused to recognize
and bargain with the Union and embarked on a course
designed to undermine the Union's majority status and
thwart its employees' expressed desire to be represented
by the, Union. Respondent sought to escape from the
duties and responsibilities of collective bargaining and
acted to frustrate that end, violating Section 8(a)(5)
and'(1) of the Act as alleged in the complaint.
' As to the manner''df remedying Respondent's viola-
tions, I 'am constrained to recommend that Respondent
be ordered to bargain with the Union. In Garland Knit-
ting Mills, supra. the Board noted that bargaining orders
under the Supreme Court's holding in N.L.R.B. v. Gissel
Packing Co.. 395 U.S. 575, could be ordered both where
the unfair labor practices were so coercive that such
an order was necessary to repair their unlawful effect
and in situations where the possibility of erasing the
effects of past practices and insuring a fair election
or rerun election-was slight.
Here we have the fact that, in 1966, a majority
of the employees, according to the Board in the prior
case, were organized by this Union and authorized it
to represent them. The Board reversed the Trial Examin-
er's finding that Respondent violated Section 8(a)(5)
saying negatively that the. situation then was such that
the Board could not say the Respondent might not
have had a good-faith doubt of this Union's majority.
The'Board's decision which issued in the fall of 1968,
some 2 years 'after the events, foreclosed the Union
from receiving a bargaining order and presumably denied
the wishes of the majority of Respondent's employees
for collective bargaining. Two weeks after the Board
denied a petition for review•of its decision, the Union
again sought to organize the employees and within 2
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or 3 days had received valid authorization cards from
an overwhelming majority of Respondent's employees
The Union followed its same course of seeking recogni-
tion from the Employer and again it was denied
Respondent gave no valid reason for its denial of the
Union's demand and sought to forestall recognition of
the Union by engaging in a campaign of unfair labor
practices leading ultimately to rejection of the Union
at the January election
I think it is clear that the desires of the majority
of the employees have been expressed often enough
and on each occasion foiled by Respondent's actions
It would therefore make no sense at this point to order
a rerun election It makes sense to order Respondent
to bargain with the Union which was the employees'
uncoerced choice as shown by their union authorization
cards The election results were the result of coercion
by the Company, and in these circumstances Respond-
ent's practices would make the prospect of holding
a fair election miniscule I will therefore recommend
that the election be set aside and that the representation
petitions of the Union and the Company be dismissed
and that Respondent be ordered to bargain with the
Union
OBJECTIONS OF THE ELECTION
I found above that Union's Objections 1 and 2 conduct
affecting the election have merit and I conclude that
the conduct complained of prohibited the holding of
a free and fair election I therefore recommend that
the results of the election held on January 9, 1969,
be set aside Due to my further finding that Respondent
has violated Section 8(a)(5) and (1) of the Act and
that a bargaining order is necessary, I further recommend
that the representation petitions be dismissed
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above in section
II, and therein found to constitute unfair labor practices
in violation of Section 8(a)(5) and (1) of the Act, occurring
in connection with Respondent's business operations
as set forth above in section I, have a close, intimate,
and substantial relationship to trade, traffic, and com
merce among the several States and tend to lead to
labor disputes, burdening and obstructing commerce and
the free flow of commerce
IV THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
as follows
Respondent since on or about October 1, 1968, has
at all times refused and still refuses to bargain with
the Union in good faith as the representative of its
employees in the appropriate unit I therefore recom-
mend that Respondent, upon request, bargain collectively
with the Union in good faith and, in the event that
an understanding is reached, embody such understanding
in a signed agreement
Having also found that Repondent sought to under-
mine the Union's majority by granting raises and by
threatening the employees with the inevitability of a
strike and loss of their job if the Union were successful
in organizing the plant and having found that Respondent
has rejected the principle of collective bargaining and
acted to avoid collective bargaining and has by such
action invaded its employees' rights under the Act as
set forth in section II, above I am of the opinion
that Respondent may commit further unfair labor prac-
tices, having by its action detailed herein shown its
proclivity for so doing Since it is part of the purpose
of the Act to prevent the commission of unfair labor
practices, I recommend that Respondent be placed under
a broad enjoinder to cease and desist from in this
or any other manner infringing upon the rights guaranteed
its employees by the Act On the basis of the foregoing
findings and the entire record, I make the following
CONCLUSIONS OF LAW
1 Mr Wicke, Ltd Co is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 All production and maintenance employees
employed by Respondent at its New Haven, Connecticut
plant, including shipping and packing employees, but
excluding office clerical employees, professional employ-
ees, guards, and supervisors as defined in the Act consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act
4 At all times since October 1, 1968, the Union
has been, and is now, the exclusive representative of
the employees in the said unit for the purposes of
collective bargaining within the meaning of Section 9(a)
of the Act
5 Respondent by refusing to bargain in good faith
with the Union on and after October 1, 1968, as the
exclusive representative of its employees in the
appropriate unit, has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(5) and (1) and 2(6) and (7)
of the Act
6 Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and 2(6) and (7) of the
Act by
(a) Threatening its employees with the inevitability
of a strike and the consequent loss of their jobs or
closing of the plant if the Union won the election or
was successful in organizing the plant
(b) Unilaterally granting its employees benefits in
order to undermine the majority status of the Union
and dissipate such status
MR. WICKE , LTD. CO. 47
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record ' in this case
considered as a whole , it is recommended that Mr.
Wicke , Ltd. Co., of New Haven , Connecticut, its
officers, agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith con-
cerning rates of pay , hours of employment , and other
terms and conditions of employment with Local 151,
International Ladies' Garment Workers ' Union,
AFL-CIO, as the exclusive representative of the employ-
ees in the appropriate unit described in the section
above entitled "Conclusions of Law."
(b) Threatening employees with the inevitability of
a strike and the consequent loss of their jobs or closing
of the plant if the Union were successful in winning
the election or organizing the plant.
(c) Unilaterally granting the employees wage raises
and other benefits in order to undermine their support
of the Union and dissipate the Union ' s majority status.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request , bargain collectively in good faith
with the above -named Union as the exclusive representa-
tive of all employees in the appropriate unit and embody
in a signed agreement any understanding reached.
(b) Post at its New Haven, Connecticut, plant copies
of the attached notice marked "Appendix . "3 Copies
of said:, notice , on • forms provided by the Regional
Director for' Region 1, after being duly signed by
Respondent ' s representative, shall be posted by the
Respondent ' immediately ' upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in con'spicuous' 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 1, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith .4 Under
the terms of the order directing hearing issued by the
Board in Cases 1-RC-10,258 and 1-RM-716 on May
14, 1969 , those cases are hereby transferred to and
' 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 "
' 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 Order, what
steps Respondent has taken to comply herewith "
continued before the Board after this ruling and decision.
I hereby recommend that the election held pursuant
to those cases be set aside and that both petitions
be dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a trial in which the Company, the Union,
and the General Counsel of the National Labor Relations
Board participated and offered evidence, it has been
found that we violated the Act. We have been ordered
to post this notice and to abide by what we say in
this notice.
WE WILL bargain collectively in good faith, upon
request, with Local 151, International Ladies' Gar-
ment Workers' Union of America, AFL-CIO, as
the exclusive representative of all employees in
the bargaining unit described below with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and,
if an understanding is reached, we will sign a con-
tract containing such understanding. The bargaining
unit is:
All production and maintenance employees
at the Company's New Haven, Connecticut,
plant, including shipping and packing employ-
ees, but excluding office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
WE WILL NOT threaten our employees with the
inevitability of a strike and the consequent loss
of their jobs or closing of the plant if the Union
organizes the plant.
WE WILL NOT try to undermine the Union's
majority status by unilaterally granting wage raises
and other benefits.
All our employees are free to become or remain
union members.
MR. WICKE , LTD. CO.
(Employer)
Dated By
(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
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with its provisions may be directed to the Board's Office Cambridge and New Sudbury Streets Boston Massa-
Twentieth Floor , John F Kennedy Federal Building , chusetts 02203 Telephone 617-223-330