J. Levine Textile, Inc.

National Labor Relations Board - Board DecisionsNov 15, 1968

173 N.L.R.B. 837 (N.L.R.B. 1968)

J LEVINE TEXTILE 837 J. Levine Textile, Inc. and District 65, Retail, Wholesale and Department Store Union, AFL-CIO. Case 2-CA-11487 Inc., New York, New York, its officers, agents, successors , and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. November 15, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND BROWN On July 15, 1968, Trial Examiner John F. Funke issued his Decision in this proceeding, finding that Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Examiner's Decision. He further found that Respond- ent had not engaged in certain other unfair labor practices and recommended that such allegations be dismissed. Thereafter, the General Counsel and Re- spondent filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, J. Levine Textile, 1 Although we agree with the Trial Examiner 's finding that Respon- dent did not violate Section 8(a)(5) by refusing to recognize the Union on January 10, we disagree with his statement that "the witnesses were willing to testify against their employer on both the issues on which violations of Section 8(a)(1) were found so the impact of the violations could hardly be called substantial " The Trial Examiner ' s assumption that the impact of unfair labor practices upon employees may be measured by the willingness of those employees to testify is, of course, unwarranted. In addition , we note that the Trial Examiner 's statement regarding the purported "notorious unreliability " of a card check is an expression of personal opinion and therefore not part of the "findings , conclusions, and recommendations" adopted by this Decision and Order The position of the Board on the subject of authorization cards was recently expressed in Levi Strauss and Co , 172 NLRB No 57. MEMBER BROWN, dissenting in part' As found by the Trial Examiner and my colleagues, the Union represented a majority of Respondent's employees in an appropriate bargaining unit as of January 10, 1968. On that date, the Union requested recognition and was rejected. It was told by Levine, Respondent's president, that he had been in business for 52 years without a union and would close his doors before dealing with one. On January 16, Levine repeated this threat at a meeting with employees. And on January 19, he gave gratuities to employees to diminish their enthusiasm for the Union. Like the Trial Examiner, my colleagues have concluded that Respondent, by its threat and gratui- ties to employees, violated Section 8(a)(1) of the Act. But they also adopt the Trial Examiner's dismissal of the 8(a)(5) allegation in the case, though they disavow his view that "the impact of the [8(a)(1)] violations could hardly be called substantial." I agree with all these findings and conclusions of my colleagues except insofar as they adopt the Trial Examiner's dismissal of the 8(a)(5), even at the same time that they reject the critical subsidiary holding which influenced his dismissal. For the reason why Respondent refused to recognize the Union is mani- fest, and it is unlawful. It is found in Respondent's statements to the Union representatives when they requested recognition and in the later remarks to the employees. Already noted, it is that Respondent, in business for 52 years without a union, was deter- mined not to deal with one. No good cause appears for not accepting this explanation from Respondent's own lips, twice given.' Respondent's conduct reveals a total rejection of its bargaining obligation under the Act and ought to be found a violation of Section 8(a)(5). 2 That Respondent filed an RM petition can have no significance following, as it did, Respondent's unlawful conduct which precluded the holding of a free election. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner. Upon a charge dated January 18, 1968 and an amended charge dated February 2, 1968, filed by District 65, Retail, Wholesale and Department Store Union, herein District 65 or the Union, against J Levine Textile, Inc., herein the Respondent, the General Counsel issued complaint dated March 29, 1968, alleging Respondent violated Section 8(a)(1)(3) and (5) of the Act. The answer of Respondent denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard by me at New York, New York, on May 13, 14, 15, 16, and 17, 173 NLRB No. 124 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1968 At the conclusion of the hearing the parties were given leave to file briefs and briefs were received from the General Counsel and Respondent on June 28. Upon the entire record in this case and from my observation of the witnesses while testifying, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a New York corporation having its office and principal place of business at 369 Broadway, New York City It is engaged in business as a weaver converter and exporter of synthetic fabrics and in a representative year purchases materials valued in excess of $100,000, of which materials valued in excess of $50,000 are delivered to Respondent directly from states other than the State of New York Respondent is engaged in commerce within the meaning of the Act. District 65 is a labor organization within the meaning of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Violations of Section 8(a)(1) The complaint alleges two independent violations of Section 8(a)(1) (1) that on January 16, 1968,' Respondent threatened its employees with a plant shutdown, discharge, and other reprisals and (2) that on January 19 and 20 Respondent granted gratuities to its employees to discourage union activity. District 65 demanded recognition as exclusive bargaining agent of Respondent's warehouse employees on January 10, which appears to be the date on which Respondent first learned of union organization in its plant On January 16 Jack Levine, Respondent's president, read from a paper entitled "Remarks by Mr. Levine" to his employees.' (Res Exh 5 ) This document reads as follows I got a terrible surprise the other day Three men came into my office and said they were from a union. They tried to tell me that some of you were interested in having a union here. This comes as a great shock and disappointment to me. Frankly, I don't believe it. I have been in business here for fifty-two years, and we have never had anybody come in between us and you, our employees Nobody in our employ ever had to pay any dues, initiation fees and fines or go on strikes to get a job here or to keep a job here Nobody had to pay dues to get the many benefits that you have enjoyed here. Look at these benefits Steady wages and regular increases, vacations, holidays, overtime, Blue Cross and Blue Shield with no cost to you, Profit sharing plan after you are with us two years. These benefits have grown from year to year. Now somebody comes along who doesn't own a business, who is not in the converting business, who has no jobs to give out, who does not meet a payroll, who does nothing except make promises They come along and they are going to try to take money out of my pocket and give it to you I don't need them and you don't need them for that purpose. Levine testified that he did not deviate from the text of the speech Morris Woody, employed by Respondent, testified that Jack Levine spoke to him later on the day the union representatives had made their demand for recognition. According to Woody, Levine asked him why he had signed a card and told him that he (Levine) had been in business for 52 years and that before he would have a union he would go out of business Woody also testified, not without some prompting, that Levine told his employees at the January 16 meeting that "before you have a union in his place of business he would go out of business "3 William Soto, an employee, testified that he attended the meeting called by Jack Levine on January 16 and that Levine stated "he been in business for 52 years, that he never had a union there, and close the shop if they have a union." Leroy Midyette, employed by Respondent until sometime in February, testified that at the January 16 meeting Levine told the employees "I have been here for 52 years and I never had a union and I'm not going to have one now. I would rather close up this shop " He also told them they would be out of a job With respect to gratuities, Woody testified that on Friday, January 19, Levine asked him to work overtime on Saturday and that he refused because he had something else to do Later that day Levine repeated his request and was again refused. Then, according to Woody, Levine gave him a $10 bill and told him to keep it but not to let anyone know about it Woody did not work Saturday. Leroy Midyette testified that on January 19 he was asked by Levine to work overtime. He refused because he had a job as usher at the Banco theatre. Levine then called his boss at the Banco who agreed to let Midyette work for Respondent on Saturday, January 20. While he was packing cases on Saturday morning Levine came to him, gave him a $10 bill, told him to put it in his pocket and "don't tell nobody." On the following pay period he received his overtime pay for Saturday in addition to the $10 No mention of the Union was made in either of these conversations and neither employee had received such a gift before Neither repaid the $10. Levine denied that he ever told any employee that he might close down the plant and denied that he made any such statement at the time he read his "remarks" to his employees. As to the gratuities Levine testified that each was in the amount of $5, not $10, and that each was a loan made at the request of the employee He added that the loaning of small sums of money to his employees was a matter of common practice I Unless otherwise noted all dates refer to 1968. 2 Levine testified that the remarks were read to all his employees The employees testified that it was read only to those who had signed union cards. 3 Roy Lester, also an employee, testified that at this meeting Levine "said close down or something like that , close down I guess is what. . " He also told them he did not want a union but that if the employees "feel that they want to have a union, he can't stop because that's your prerogative." J LEVINE TEXTILE 839 2 The termination of Howard Orange Howard Orange was employed by Respondent in August 1967, and the last day he worked was January 11, 1968 He was employed as a shipping clerk and received $60 per week, later increased to $65 On November 1, 1967, he and some other employees went to 13 Astor Place where they met Murray Rothman of District 65 and signed union cards. His card was among those shown Jack Levine by Rothman on January 10 Orange testified that when he arrived home on January 11 he was ill and that the next day he was coughing blood There was no telephone in the apartment (they lived on the fourth floor) and the nearest public telephone was in a candy store some 2 1/2 blocks away, according to Rosetta Orange, his wife Rosetta called Respondent's office on Friday, January 12, and went to 369 Broadway where she saw Jack Levine and received Howard's check Orange testified that during the weekend he "caught the flu" and went to Lincoln Hospital in the Bronx where he was treated by a doctor with flu shots and given pills When first questioned as to the date of his visit to Lincoln, Orange stated he thought it was Friday, January 12, the first day he was sick On cross-examination he testified it took place on the weekend, either Saturday or Sunday. Orange further testified that he was home sick the entire week of Monday, January 15, and did not report for work until 8 30 a.m on Monday, January 22. The first person he saw was Murray Miller who asked him if Jack Levine knew he was coming into work and told him he had better see Levine Orange went upstairs and started putting away stock Shortly thereafter he had a conversation with Jack Levine who asked him what had happened to him He told Levine that his wife had called the office to explain his absence but Miller, who was present, told Levine he (Miller) had received no calls after January 12 Levine then told him he (Orange) was a good fellow and to go home and wait until he either called him or wrote him He also told Orange, according to Orange, that he was one of those who had signed union cards and then told him that in a week or two things would clear up. As Orange was leaving the plant he met Levine who told him, "I didn't know where I was at .. and hired somebody to replace you." That evening, after calling Rothman, Orange went to the union hall, where he saw Rothman who agreed to try to have him reinstated. The next day Rothman and Orange met with Levine in his office. Rothman asked Levine if it was possible to return Orange to his job and Levine said he would wait until he heard from his lawyer. Orange called later in the day and spoke to Irvin Levine, Jack's son, who told him to call later Subsequently he received a letter from Jack Levine dated January 25 telling him work was not available 4 He never returned to work for the Respondent Rosetta Orange testified that Howard was sick on Friday, January 12, and that she called the office to report his illness and went to the office to get his check. She stated on direct examination that the call was made about 3 30 p.m. At the office she spoke to Jack Levine who told her to urge Howard to come in on Monday On Monday, January 15, Mrs. Orange again called the office asked to speak to Mr Levine and when told he was not in left the message that Howard was sick On Tuesday she again called and told Murray Miller Howard was still sick. According to Mrs Orange, Miller said nothing. Wednesday she forgot to call but on Thursday she called and when neither Levine nor Miller were in she left the message with the operator She did not call on Friday, and on Monday Howard reported for work. Jack Levine testified that Howard Orange was employed by him in August 1967, and worked until sometime in the week of January 8, 1968. Levine remembered that on Friday, January 12, Mrs. Orange called his office and spoke to Murray Miller, asked if she could come down for Orange's paycheck and was told that she could. According to Levine, he asked her when she arrived if her husband drank and she replied that he was a heavy drinker and that she had trouble getting him up in the morning .5 Levine denied that she told him her husband was sick and stated he never heard from her or saw her since that day. When Murray Miller reported to Levine that Orange had reported for work on January 22 he brought Orange down to his office and told him he had been replaced. Levine's testimony was as follows: I told him he didn't show all week and naturally the boys were busy and I had to get them another boy upstairs to take his job. They were complaining they were a little bit busy and the men upstairs came down and told us if I could get them a boy, which I did, and didn't think Howard would never show because I didn't hear from him all that week. Levine denied that he mentioned to Orange that he was not taking him back because of the union business, that he asked him if he had signed a union card,6 or that he told him he would take him back "after this thing blew over " The next day or thereabouts Levine had a discussion with Murray Rothman and Orange concerning Orange's rein- statement. In the course of this discussion Levine's son, Irvin Levine, suggested that they wait until they had talked to their attorney before making any commitment. Levine denied telling Rothman that he had been informed by Mrs. Orange that Howard was sick with the flu Later that week he wrote Orange a letter, dated January 25 (Res. Exh 4), the substance of which read This is to confirm our conversation of January 22, 1968, in which I informed you that there was no work available at present. This was Levine's last contact with Howard Orange.7 Philip Epstein, called by Respondent, testified that he was employed as Registrar at Lincoln Hospital and that he had charge of the "screening book." Epstein explained that when a patient came to the hospital and complained of an illness he filled out a form which is sent to the doctor examining him 4 Resp. Exh. 4. 5 Levine stated he raised this point because he had heard that Howard occasionally took a dunk in the back room. 6 Since Orange 's card was one of those submitted to Levine by Rothman there was no need to ask this question. Orange's original testimony , confused by his response to the Trial Examiner's question, was that Levine told him "you was one of the fellows signed a union card." ' On cross-examination of Levine it was stipulated that at least three employees were hired and retained in employment by Respondent after January 22 . Levine's reason for not offering reinstatement to Orange was that he had heard from Murray Miller that Orange was working at another plant in the area . Another employee , Kamel, had been hired on either January 18 or 19 to replace Orange. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the diagnosis would be placed on the form which was retained by the hospital. If a patient required emergency treatment his name would appear in the "emergency book." Orange's name did not appear on the admission list nor in the emergency book for either January 12, 13, or 14.8 Irvin Levine testified that he was in the office during the entire workweek commencing January 15. It was the normal procedure when a call came in for "Mr. Levine" for the operator to ask which Mr. Levine was wanted If the call was for Jack Levine and he was not in, the call would be directed to Irvin Levine If neither Levines were present the call would be directed to Murray Miller. During the week in question Irvin Levine stated he received no call nor message from either Mrs. Orange or from Howard Orange. On Monday, January 22, Irvin reported for work and was told by Murray Miller that Orange had gone upstairs to go to work. Miller had told him to wait for Jack Levine but Orange had proceeded anyway. Irvin testified that he was a party to a conversation the next day between Jack Levine and Murray Rothman When asked why Orange had been let go, Irvin told Rothman . . and I explained that it's always been our custom that when a man shows last on payday and then doesn't show any longer and doesn't call, we don't hear from him, we assume that he is no longer going to show up, because we have had many occasions on short term employees, and it was my conclusion that Orange was not going to show up and therefore was no longer in our employ and we replaced him. Rothman then stated that it would be an unfair labor practice if Respondent did not reinstate Orange. Jack Levine replied that it would be all right with him but Irvin suggested calling Respondent's lawyers. On the 24th, Irvin took a call from Orange who asked what decision had been made. Levine told him Respondent was still consulting with its lawyers. Murray Miller, Respondent's general manager, testified that he, not Jack Levine, received the telephone call from Mrs. Orange on January 12, that she asked if she could come for Howard's check and told him Howard was in the hospital. He was present during the conversation between Jack Levine and Mrs. Orange which took place when she arrived. Miller testified that Levine asked her if Howard had been drinking and that she said he had been drinking "a little excessively " She then left. Miller neither received a telephone call from Mrs. Orange nor did he receive a message during the week of the 15th advising him that Orange would not be in. Any such calls would be transferred to either Jack Levine, Irvin Levine or himself. Miller further testified that when Orange reported to work on January 22 he asked him to wait for Jack Levine but that Orange paid no attention but proceeded upstairs. Miller stated that when Orange and Levine came downstairs Levine asked him if he had received any calls from Orange and he told Levine he had not According to Miller, absenteeism and turnover were factors in Respondent's business.9 Harriet Bowers, called byRespondent, testified that she was employed by Respondent as a switchboard operator during the week of January 15. She testified that she had received a few calls from Howard Orange but could not remember if they were made during the week of January 15 or not.' 0 She could not recall receiving any call from Mrs. Orange advising her that Howard was sick, in fact she could not remember anyone calling. She did corroborate Irvin Levine's testimony as to procedure, namely, to transfer all calls to either Jack or Irvin Levine or Murray Miller. Zena Lipkowitz testified that she was the relief operator and that a call was received from Mrs. Orange on January 12, that the call went to Mr. Miller and that Mrs. Orange asked if she could get Howard's paycheck. She was not on the switchboard at the time but had a desk next to Miller and overheard the conversation. She never received any call from either Mrs. Orange or Orange while at the switchboard. 3. Violation of Section 8(a)(5) a. Demand and refusal Murray Rothman, an organizer for District 65, testified that on September 14, 1967, an employee of Respondent named Juan Colon came to his office and told Rothman he was inter- ested in joining District 65. Rothman explained union benefits to him and Colon signed a union card.i Rothman told Colon it would be necessary to have other employees sign and gave him blank cards. On September 18 four other employees of Respondent came to the office, went through the same proce- dure and signed cards. Sometime after September 21 Colon brought in a card signed by an employee named Perez and on or about October 3 Colon brought in four additional em- ployees, Bogan, Lester, Woody and Midyette. Again the advan- tages of the Union were explained and all signed cards. On October 25 there was a meeting of the employees and at this meeting Nelson Ortiz signed a card. The employees told Roth- man, who suggested a demand for recognition be made upon Respondent, that it was getting close to Christmas and to wait until after they received their Christmas bonus. Rothman agreed to the delay. On November 1 another meeting was held and two more employees signed cards, John Harrison and Howard Orange. Rothman told the men they now had 13 of the 16 warehouse employees signed and should demand recog- nition. The employees again asked him to hold off until after Christmas so they would be certain of their Christmas bonus. Rothman agreed. On January 4 a meeting was held and the employees told Rothman they still wanted a union and it was agreed that Rothman would contact Respondent on January 10. On January 10 Rothman, together with organizers Bill Taylor and Neal James went to 369 Broadway where they met Jack Levine and, after introducing themselves and telling Levine that they represented a majority of his warehouse workers, went into his office. Rothman repeated his request for recognition, took 10 cards and gave them to Levine .1 2 Rothman testified that Levine examined the cards and told him he would return them at the end of their meeting. 8 Orange testified that when he went to the hospital his name and address were taken. He did not state by whom. 9 Respondent 's record indicated that an employee named Pierre Joachim left its employ on January 23, Leroy Midyette on February 2, John Harrison on January 16 and John O'Reilly, employed for 1 week, on February 2. 10 Orange testified that he had been sick once or twice prior to January 12 and had called in on each occasion. 11 The cards , G.C. Exh. 3-a through 3-J, stated on their face that the employee accepted membership in District 65 and designated it as his bargaining agent On the reverse it authorized a checkoff of union dues. 12 Three signers had terminated their employment with Respondent during the interim period. J. LEVINE TEXTILE Rothman informed Levine that he was obligated to recognize and bargain with District 65. He suggested Levine see his lawyer or contact his trade association. Rothman's testimony is that Levine replied that he had been in business for 52 years and did not need a union to tell him what to do and that before he did he would go out of business. Levine told the representatives he would see his lawyer. Before he left Levine returned the cards but not until after he had written down the names of the signers. At the beginning of the next week a Mr. Frank from the offices Jackson, Lewis and Schnitzler, attorneys called Roth- man and asked for more time to consider the Union's request. Later Rothman received a letter from William Krupman, of the same firm, dated January 16 (G.C. Exh. 2), which read: We are informed that you have requested recognition of your union by the above Company. Our client advises us that they doubt that you represent an uncoerced and informed majority of their employees in a unit appropriate for collective bargaining. The steps you have taken, we do not believe, are a suitable way to resolve the Company's doubt of your claim of majority status. A mechanical check of alleged signatures in no way indicates whether an employee has signed a card under coercion or duress or because of misrepresentation as to the purpose of the card. You know as well as we, that cards signed under the above circumstances have been held to be invalid, and a mechanical card check does not reveal these shortcomings. Our distrust of cards is premised on the fact that they do not provide any way to determine what influence or pressure is brought to bear on an employee when he signs one of your cards. Consequently we share our client's doubt about the reliability of authorization cards and therefore we feel that the questions raised by your request for signature to a recognition agreement can only and best be resolved by a secret ballot election before the National Labor Relations Board. We recommend that you file a petition for an election if you intend to pursue your claim. Should you fail to do so we are prepared to go forward with such a proceeding ourselves. Upon receipt of this letter Rothman filed unfair labor practice charges with the National Labor Relations Board. (G.C. Exh. 1-a.) The testimony of Jack Levine does not differ substantially from that of Rothman respecting their discussion on January 10. Levine testified that Rothman, accompanied by two other men came to the plant, asked to see him and that Rothman told him he represented the Union and had a majority of the cards signed. This was the first intimation he had that union organization had taken place among his employees. Levine stated Rothman described the unit as "the boys" in the plant and did not mention either the warehouse employees or production and maintenance employees. (Levine denied he operated a warehouse.) As to Levine's understanding of the unit he testified, "We consider the males boys, females a woman." While there are sciences which might consider this an oversimplification there can be little quarrel with the dis- tinction from a legal point of view. At this first confrontation Rothman offered to show Levine the cards and Levine accepted. To the best of his recollection there were "about eight, nine or ten." He had never seen a union card before, 841 either authorization, membership or checkoff authorization. Before Rothman left Levine asked to see the cards again and stated he believed he "jotted down the names." His reason for jotting down the names was that he doubted a majority since he estimated the boys in the plant, by which he meant everyone who worked for a living in the plant, numbered 25. A day or two later Levine saw Louis Jackson, of Jackson, Lewis and Schnitzler, and told him he did not believe the Union represented a majority in the plant. Following this meeting with Jackson the letter signed by Krupman was sent to Rothman. Levine also discussed holding an election and on January 22 Respondent filed a petition for a representation election with the National Labor Relations Board. (Res. Exh. 3.) Clearly the Respondent refused to bargain with District 65 on January 16 and at all times thereafter. b. The appropriate unit and majority status The nature of Respondent 's business and its methods of operation are best described in the testimony of Irvin Levine. Respondent was a converter of synthetic textiles primarily for the export trade. Goods were woven to Respondent's specifica- tions by weaving mills and sold to Respondent in an unfinished state. The goods were then shipped from the weaver to a dyer where they were dyed, again according to Respondent's instructions. The fabrics are then shipped to Respondent in New York, unloaded and stored in Respondent's building. Respondent's chief responsibility in this operation is the styling and coloring of the materials, styling designed for overseas sales. The last phase of Respondent's business is the shipping of materials to the purchaser who has ordered the goods. Goods are all stamped "made in U.S.A." and also stamped with Respondent's trademark. Respondent's building consists of four floors and a base- ment with the offices on the first floor. There are also production and maintenance employees working on the first floor for goods are also stored on the first floor. In the back of the first floor Respondent keeps lumber for making wooden boxes for the shipping of goods. Rolls of goods are also stored on the upper floors and in the basement. No employees were assigned exclusively to specific floors but worked where needed at any particular time. The Respondent's operations were characterized, according to Levine, by flexibility. When a shipment arrives from the dyer any employees who are available will help unload and store the goods. The first employee responding to shipment will sign the invoice. Orders are received from overseas by mail, credit is checked and Murray Miller will hand the order to whomever is available or whomever is familiar with the line for shipment out. Goods are measured on a rolling machine and Levine testified that almost anyone in the Company could operate the machine. Also almost any employee could use the stamping machine, referred to as the selvedge stamping iron. Adding machines were used for inventory purposes and all of the men used these. Scales were used for weighing piece goods and cases and were also generally used. The nature of the business was such, due to the constant flow of goods, as to require constant inventory taking and again all the men participated in this operation. Levine testified that Respondent had no fixed job classifica- tions for its employees who performed these services and no fixed limits of responsibility. In the absence of such classifica- tions ruling on exclusion and inclusion is a precarious matter. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on testimony which, is scant and meagre, the following rulings are made.' 3 The complaint alleges the appropriate unit to be All Respondent's production and maintenance employees, including packers, shipping clerks and their helpers, and excluding salesmen, office clerical employees, guards and all supervisors as defined in Section 2(11) of the Act. I find this unit appropriate for the purposes of collective bargaining. No demand was ever made for recognition in such a unit by District 65 prior to the filing of the charge herein on January 18. Rothman's testimony is that he demanded recognition for "all warehouse employees" and Levine's testimony is that Rothman claimed to represent "all the boys." There is, of course, a discrepancy between the unit as set forth in the complaint and that for which recognition was demanded whether Rothran's or Levine's version is accepted. Although I do not find the distinction between Rothman's and Levine's testimony crucial I would accept Rothman's on the ground that while it was Levine's habit to refer to and think of his employees as boys, it is hardly likely that a union organizer would so classify them. The question then presented is whether there is a sufficient variance between the unit claimed by Rothman and that found appropriate, above, to warrant dismissal. I think not. In Steel City Transport, 166 NLRB No. 54, the union requested a unit of "all drivers." The General Counsel in his complaint in that case modified the unit to read. All single-owner operators and non-owner drivers of per- manently leased equipment, excluding multiequipment owner operators, the mechanic, dispatchers, office clerical employees and guards, professional employees and super- visors as defined by the Act. By excluding the multrequipment owner-operators the General Counsel eliminated a substantial number of "drivers" but the Board adopted without comment the Trial Examiner's finding that the variance was not substantial. The Trial Examiner's finding relied on American Rubber Products Corp., 106 NLRB 73, United Abattoir, Inc., 123 NLRB 946, Hamilton Plastic Molding Company, 135 NLRB 371; American Manufacturing Company of Texas, 139 NLRB 815. In making this finding I have given consideration to the fact that District 65's recognition agreement requested recognition for "all em- ployees " I feel that the cases cited indicate the accom- modation the Board will give to a petitioning labor organiza- tion with respect to the unit issue. If I am in error this case presents this issue clearly and the error car. accordingly be corrected. On January 10, Rothman submitted 10 cards to Levine. These were signed by the following employees and I find no dispute as to their inclusion within the unit.' 4 These 10 are. Name Salary William Soto $75 Pierre Joachim Leroy Midyette 70 Roy Lester 70 Morris Woody 75 Edward Bogan 85 Nelson Ortiz 95 John Harrison 70 Howard Orange 65 Jose Perez 65 In addition I find the following six employees are also included within the unit, thus reaching the total of 16 estimated by the Union- Pete Lachinski, Rudy Miller, George Brodsky, Alphonse Marc, Charles O'Reilly, and Bill O'Reilly. I find that Pete Lachinski identified by Bogan as a maintenance man who also made packing cases to be the same individual identified by Irvin Levine as Peter Leszczyzyn, a carpenter.' 5 I find three employees concerning whose placement there is serious dispute. Irvin Levine testified that Harvey Fishman and his brother Marvin worked on the first floor taking incoming freight, handling it, working a "double and rolling machine," cutting sample yardage, stamping selvedges and packing orders. He also testified that while Fishman had two domestic accounts only approximately 1 percent of his income was received from sales. Harvey Fishman performed the same work as his brother except that he apparently had no accounts. I find that the brothers had a community of interest with the other employees, either as production and maintenance em- ployees or plant clerical employees. I make this finding on testimony which is far from conclusive but neither Fishman was called by either party to perfect the record. I shall include them in the appropriate unit. Cheong Oh worked primarily on inventory. He had a desk on the first floor next to Leslie Mellis, a converter, but Respondent refused to concede he was assistant to Mellis. Oh checked goods to be shipped and told the other employees whether the goods were in stock and, if so, where they were stored. He received $90 per week. Since his work brought him chiefly in contact with the production and maintenance employees I would include him in the umt.' 6 I would exclude from the unit Harriet Bowers, Lena Lipkowitz, Ellen Conners and Beatrice Quinones as clerical employees; Herman Stern, Jacobo Blachar and Joseph Hauser as salesmen, Milton Schwartz and Alan Asloss as either clericals or accountants; Leslie Mellis, the converter, on the ground that his superior responsibilities and substantially higher salary established that he enjoyed no community of interest with the 13 While Respondent had no formal job classifications or job descriptions certain classifications were designated for some of its employees , not by either Levine , but by one of Respondent 's clericals These classifications were requested by "Workmen 's Compensation," according to Levine Edward Bogan , who described himself as a packer, classitied the 16 employees who were computed as within the unit by the General Counsel variously as packers , shippers and helpers. Respondent classified them as general laborers . Regardless of this conflict, more semantic than real , I find that these employees , however designated , worked interchangeably and performed the same general duties. Salaries appear to have been based on length of service and without any guidelines. 14 On the testimony which I credit, the cards were signed under circumstances which reflected no doubt on their validity 15 Although the General Counsel stated that he had subpenaed Respondent 's payroll records for the period which included January 10, they were never offered in evidence . The head count required in card check cases was therefore made the more difficult for the Trial Examiner who was forced to rely on the testimony of interested witnesses . As to the duties of employees in contested classifications the attorneys seemingly were more interested in bickering with each other and with the Trial Examiner than in making a clear and concise record. Had petty and inconsequential argument between counsel been elimi- nated the case would have been concluded in 2 rather than 5 days and a better record would have been made 16 Maryland Cup Corp., 171 NLRB No. 71. J. LEVINE TEXTILE production and maintenance employees, and Thomas Muniz, export correspondent, excluded by ruling of the Trial Exam- iner at the hearing. Based on the foregoing, I find that District 65 represented 10 of the 19 employees in the appropriate unit on January 10. B. Conclusions 1. Violations of Section 8(a)(1) Three of the General Counsel's witnesses, Woody, Soto, and Midyette testified that at the January 16 meeting with his employees Jack Levine told them that he had been in business 52 years and that before he would have a union he would go out of business.' 7 Levine testified that he read from a prepared text, did not deviate from nor expand upon it and specifically denied that he made such a statement to any employee at any time. Thus the issue resolves on credibility with no extraneous factors to give guidance . To make resolution more difficult some of the witnesses for both the General Counsel and Respondent gave the indication that they would tell the truth when the truth served their purpose and resort to perjury when it did not. If the Board wishes to regard this direct conflict in testimony as to what Levine said as merely "different versions of the same events,"' 8 I do not. I do not base my finding that Levine made a threat to close down the plant at the time lie made his prepared remarks on demeanor for the reason just stated. At the time he delivered his remarks he had been advised by an attorney experienced in labor law and the remarks had been authorized by his attorney and prepared in his office. I am sure that any attorney experienced in labor law advising a client in Mr. Levine's position would advise him, at the least, to avoid those familiar threats so commonplace in the early stages of union organiza- tion, the threat to fire employees and the threat to close his plant. Nevertheless I shall accept as credible the testimony of Soto and Midyette that Levine did make such a threat. As was amply demonstrated at the hearing Levine was an impulsive interjector with seemingly no capacity for self-restraint. The allegations are directly in keeping with Levine's statement made to Rothman when recognition was requested, that he had been in business for 52 years without a union and would close his business before dealing with one. As to the gratuities alleged to have been given to Woody and Midyette I reach the same conclusion . This is not the usual patented 8(a)(1) allegation found in almost every 8(a)(1) and (3) complaint. I do not believe either witness sufficiently ingenious to contrive such a charge. Furthermore Levine's defense that he frequently loaned money to his employees, a statement I credit, would not explain the fact that these loans, if such they were, were made on Friday. which was payday. It is, of course, a familiar practice in many small shops with low 17 Roy Lester also testified but his testimony on this specific statement , supra , is too ambiguous to support a finding 18 The quotation is from the Board 's decision in Fotochrome, Inc., 146 NLRB 1010 , in which the Board criticized the Trial Examiner for commenting on the prevalence of perjury in Board hearings. If the Board does not realize that the credibility issue or, more bluntly, the determination of who is lying and who is not is a Trial Examiner's most recurring problem it may he because no Board Member has participated in a hearing , either as Examiner or counsel . Chief counsel to two Board Members are former Trial Examiners and should be able to enlighten them One of these, in Blue Flash Express, Inc , 109 NLRB 591, dismissed a portion of the complaint on the ground that he could not resolve a direct conflict in testimony and that the General Counsel had not therefore sustained his burden of proof. 843 wage scales for employees to borrow from the boss. It is the practice, however, to borrow until payday, not on payday. There is no evidence that any employee received any gratuity from Jack Levine on any other occasion. Coming as they did so shortly after District 65's demand for recognition I can only infer that the gratuities were given to diminish the enthusiasm of these employees for District 65 and evoke some gratitude toward their employer. I find that the threat to close the plant and the giving of the gratuities violated Section 8(a)(1) of the Act, although it must be conceded that both findings skate on very thin ice. 2. The termination of Howard Orange Orange was either terminated by Respondent because of his union activity or because Respondent had reasonable grounds to believe he had quit its employment with no intention to return. The General Counsel has the burden of proving that the former was the true reason. I do not believe he has sustained this burden. The issue again pivots upon the credibility of the witnesses. There is general agreement that on the first day her husband was sick Rosetta Orange came to Respondent's plant and collected his paycheck. Levine testified that she did not tell him her husband was sick but that she did admit he drank excessively. I do not believe she made any such statement and I do believe her testimony that she told him Howard was sick,' 9 that she was urged to have him report on Monday and that she told Levine Howard would report if he was able.20 On the other hand, I accept the testimony of the two witnesses who served the switchboard for Respondent, Harriet Bowers and Lena Lipkowitz, that neither could recall receiving any call from Mrs. Orange during the week starting January 15 nor was either requested to relay a message to either Jack Levine or Murray Miller that Orange was sick. Of the witnesses who appeared in this case Bowers and Lipkowitz appeared most credible. Orange himself is discredited as to his testimony that he visited Lincoln Hospital and was treated there on either January 12, 13 or 14 by the records of the hospital which indicated he was not treated nor admitted there on any of those days. Having reached this conclusion on credibility I find that Respondent had reasonable grounds for believing that Orange had quit with no expectation of returning. This conclusion is fortified by the fact Respondent hired a replacement for Orange and that its previous experience had been that employees, particularly short-term employees, quit without giving notice.21 I do not think any further argument, exposition or analysis would contribute to this finding. It will be recommended that the complaint, insofar as it alleges violation of Section 8(a)(3) of the Act, be dismissed. 19 Murray Miller testified that he, not Jack Levine , received the telephone call and that Mrs. Orange told him Howard was in the hospital 20 It is impossible for me to believe that a wife , meeting her husband's employer for the first time, would admit that he drank excessively , particularly after she had advised another member of management on that same day that her husband was sick. 21 I have also considered as relevant that fact that Respondent hired three employees after January 22 without offering reemployment to Orange. Balancing this fact is Levine 's testimony that he had heard from Murray Miller that Orange was elsewhere employed, a fact verified by Orange's own testimony. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Violation of Section 8(a)(5) Having found that District 65 represented a majority, however bare, of Respondent's employees in a unit appropriate for collective bargaining and that there was a demand for and a refusal of recognition of District 65 as collective-bargaining agent I find the sole issue to be whether Respondent had a good faith doubt of District 65's majority status. I find reasonable grounds for such a doubt for the following reasons. The Respondent's president, Jack Levine, had no previous experience with unions and no knowledge that District 65 was organizing his employees. On January 10, when Rothman first presented his demand and the 10 cards in support thereof, Levine could scarcely have known how many employees Rothman contended to represent nor what employees con- stituted an appropriate unit.22 The phrase "all warehouse employees" is certainly not free from ambiguity even to one experienced in the nuances of appropriate unit determinations. Respondent contended that it did not operate a warehouse and that its business consisted of distributing its products locally and overseas and that all employees were engaged, interchange- ably, in executing this overall function. At the time of this oral demand Rothman submitted a recognition of agreement which included "all employees" and which could only serve to further confuse Respondent. Clearly District 65 did not represent a majority of all Respondent's employees. No appropriate bargaining unit was ever clearly defined until the General Counsel did so when he issued his complaint more than 2 months after the original demand and after the refusal on January 16. I cannot conceive of circumstances under which more valid grounds for a reasonable doubt could exist. Here, as in Aaron Brothers Company of California, 158 NLRB 1077, there was no prior history of collective bargaining and the General Counsel had the duty to establish affirmatively that the refusal was in bad faith. (See also John P. Serpa, Inc., 155 NLRB 99.) The only ground on which a violation of Section 8(a)(5) and which would justify the "strong medicine"23 of a remedial bargaining order is the commission of other unfair labor practices on the part of the Respondent. These findings not only rest on precarious grounds, i.e., the testimony of witnesses whose credibility was open to question, but I also find that they indicated no complete rejection of the col- lective-bargaining obligation. It was the Respondent and not the Union which filed the petition for an election and which sought to obtain a decision by secret ballot in conformity with the statute rather than by resort to the "notorious unre- liability" of a card check. I do not find this one avenue sufficient to support the position of the General Counsel. Had the Respondent "en- gaged in substantial unfair labor practices to dissipate union support" which would lead to the conclusion that the 22 It must be noted that the Board employs more than 100 legal assistants to help it in arriving at a determination of such issues and that it may take its staff months to reach decision . On the question of an appropriate unit its decisions , as the courts have pointed out, may be squarely contradictory. Cf. N.L.R.B. v. Tallahassee Coca-Cola Bottling Co., 381 F.2d 863 (C.A. 5), and cases cited. 23 N.L.R.B. v. Flomatic Corporation, 347 F.2d 74 (C A. 2). 24 Hammond & Irving Incorporated, 154 NLRB 1071 , N.L.R.B. V. Dee's of New Jersey, Inc., 395 F.2d 112 (C.A. 3), Lane Drug Co. v. N.L.R.B., 391 F.2d 812 (C.A. 6), Pulley, Etc v. N.L.R.B., 395 F.2d Respondent's insistence on an election was not motivated by a good-faith doubt of majority but a desire to gain time in which to undermine the Union, a different conclusion might be reached. (Aaron Brothers, supra.) The record in this case indicates, however, that the witnesses were willing to testify against their employer on both the issues on which violation of Section 8(a)(1) were found so the impact of the violations could hardly be called substantial.24 III. THE REMEDY Having found the Respondent engaged in certain unfair labor practices it shall be recommended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. By threatening to close its plant and by giving its employees gratuities to discourage membership in, sympathy for and activity on behalf of District 65, Respondent violated Section 8(a)(1) of the Act. 2. Respondent did not violate Section 8(a)(3) and (5) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER It is recommended that Respondent, J. Levine Textile, Inc., its officers, agents, successors and assigns, shall. 1. Cease and desist from threatening its employees with closing the plant and giving its employees gratuities in the form of money or any other valuable consideration for the purpose of discouraging membership in, sympathy for or activity on behalf of District 65, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business at New York, New York, copies of the notice attached hereto and marked "Ap- pendix .s25 Copies of said notice, on forms to be provided by the Regional Director for Region 2, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to 870 (C A. 6), Colecraft Manufacturing Co., Inc. v. N.L.R.B., 385 F.2d 998 (C.A. 2),N.L.R.B. v. River Togs, Inc., 382 F.2d 198 (C.A. 2). 25 In the event that this Recommended Order is 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 is 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." J. LEVINE TEXTILE 845 insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.26 IT IS FURTHER RECOMMENDED that all allegations of the complaint not specifically found to be in violation of the Act be dismissed. 26 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional 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 Relations Act, as amended, we hereby notify our employees that: WE will not threaten our employees that we will close our plant to discourage them from becoming or remaining a member in or to have sympathy for or be active in District 65, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization. WE will not give any of our employees money or any other gift of value to discourage them from becoming or remaining a member in or to have sympathy for or to be active in District 65, Retail , Wholesale and Department Store Union , AFL-CIO, or any other union. J. LEVINE TEXTILE, INC. (Employer) Director for Region 2, in writing within 10 days from this Order, what steps Respondent has taken to comply herewith." 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 di- rectly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone PL-1-5500, Ext. 852. Dated By (Representative) (Title)