Ottenheimer and Co., Inc.

National Labor Relations Board - Board DecisionsAug 20, 1963

144 N.L.R.B. 38 (N.L.R.B. 1963)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in or activities on behalf of Retail Clerks Union Local 503, Retail Clerks International Association, AFL-CIO, or any other labor organization of our employees, by discharging, or otherwise discriminating in regard to the hire and tenure of any employee's employment or any other term or condition of employment. WE WILL NOT question, in an unlawful manner, our employees concerning their union affiliation and activities or threaten them with loss of benefits if they engage in protected union or concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection or to refrain from any or all of such activities. WE WILL offer Inez Foraker immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority or other employment rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above labor organization, or any other labor organization. J. J. NEWBERRY COMPANY, Employer. Dated------------------- By---------- ---------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No Balti- more 1-7000, Extension 2732, if they have any questions concerning this notice or compliance with its provisions. Ottenheimer and Company , Inc. and Amalgamated Clothing Workers of America , AFL-CIO. Case No. 9-CA-2585. August 2011963 DECISION AND ORDER On March 1, 1963, Trial Examiner James V. Constantine issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondent and the Charging Union filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, exceptions, and 144 NLRB No. 8. OTTENHEIMER AND COMPANY, INC. 39 briefs,' and hereby adopts the findings, conclusions,2 and recommenda- tions of the Trial Examiner. - ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. 1 The 'Charging Union's exceptions are directed to the finding of the Trial Examiner that Respondent did not violate Section 8 ( a)(1) by failing to disavow a coercive speech made by R. A . Belt, Dawson Springs superintendent of schools and a director of Dawson Springs Factories , Inc (DSF ), which owns the building leased to Respondent for its operations. Belt's speech was made at a meeting called by DSF, which was held in the local high school and attended by 'many Ottenheimer employees, including three floorladies whom the Trial Examiner found to be supervisors Neither of Respondent's two top officials, President Frumkin and Plant Superintendent Hyde, attended the meeting . In his speech, Belt observed that Frumkin and Hyde had met with him in his office that day and that Frumkin had told him the plant would move away rather than operate with a union in the shop. The Trial Examiner found that Respondent did not initiate or suggest that DSF hold this meeting, and hence was under no duty to disavow the activities and state- ments which occurred . The Charging Union contends that by failing to disavow what DSF did at the meeting , Respondent , in effect, authorized DSF to act in its behalf. We agree with the Trial Examiner that DSF did not become the agent of Respondent merely because Respondent remained silent after it learned that DSF had repeated its own threat that unionization of the plant would cause it to move. Even if we were to assume that Respondent ' s failure to disavow the action of DSF constituted an affirmance thereof, there is still lacking an essential element for the creation of an agency relationship in that there is no proof that DSF purported to act as the agent of the Respondent . Restatement of Agency, 2d , sec. 85(2). 2 In determining whether or not the Union was freely designated by a majority of the employees as their representative in the appropriate unit, Member Rodgers would not count the three authorization cards obtained where the signer had been told that the Union would waive its payment of regular initiation fees, or that a majority of the employees had already signed authorization cards, or that a discharged employee would thereby get her job back See Gorbea, Perez & Morell S. en C., 142 NLRB 475, Member Rodgers' dissenting opinion ; N.L R B. v. H. Roh,tstein. & Co., Inc ., 266 F 2d 40 '7 (C A. 1). How- ever, even discounting these cards , Member Rodgers would find that the Union neverthe- less had a clear majority in an appropriate unit The other members of the panel agree with the Trial Examiner that the Union's offer during the organizing campaign to a few employees to waive initiation fees does not impair the Union 's majority showing They note, in any event , that of the employees who testified that such an offer was made to them, only one , Jo Ann Jones , actually signed an authoriza- tion card They also disagree with Member Rodgers' opinion that the other two cards should not be counted . As for the representation made to an employee that she should sign because a majority of the employees had already designated the Union, they find it unnecessary to decide its effect on the validity of the card, since there is no evidence that the representation was in fact false; and as for the representation that selecting the Union would help a discharged employee in getting her job back, it is a legitimate argu- ment during a solicitation campaign to point out the Union's role in job protection. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and an amended charge filed on May 11 and 22, 1962, respectively, by Amalgamated Clothing Workers of America, AFL-CIO, the General Counsel of the National Labor Relations Board, by the Regional Director for the Ninth Region (Cincinnati , Ohio), issued his complaint dated October 25 , 1962, against Ottenheimer and Company , Inc. Said complaint, as amended at the hearing, alleges in substance that the Respondent has engaged in and is engaging in unfair labor practices as defined in Section 8(a)(1) and ( 5), and affecting commerce as defined in Section 2(6), of the National Labor Relations Act. The Respondent has answered admitting some facts alleged in the complaint but putting in issue the commission of any unfair labor practices. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to due notice a hearing was held before Trial Examiner James V. Constantine at Madisonville, Kentucky, on January 8, 9, and 10, 1963. All parties were represented at and participated in the hearing, and had full opportunity to intro- duce evidence, examine and cross-examine witnesses, submit briefs, and offer oral argument. All parties argued orally and filed briefs. Prior to the receipt of any evidence, the Respondent moved to dismiss the com- plaint on the ground that, because of an asserted settlement which it entered into with the Regional Director, it was being placed in double jeopardy. This motion was denied. When the General Counsel rested, Respondent moved to dismiss the complaint. This motion was denied. The Respondent also moved to strike the name of Gordon Bratcher from paragraph 5(d) of the complaint, but I reserved decision thereon. This motion is hereinafter disposed of. Upon the entire record in this case, including the stipulations of the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Ottenheimer and Company, Inc., an Illinois corporation, is engaged at Dawson Springs, Kentucky, in the manufacture of clothing. During the 12 months preceding the issuance of the complaint, the Respondent received goods and merchandise valued in excess of $50,000 directly from, and shipped products valued in excess of $50,000 directly to, points outside the State of Kentucky. I find that Ottenheimer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, is a labor organization as comprehended by Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The facts hereinafter recited are based on the credible evidence and reasonable inferences drawn therefrom. In making credibility findings, I have credited some witnesses in part only, whether they testified for the General Counsel, the Charging Party, or the Respondent; but I have not narrated the evidence from which such findings have emanated. All evidence has been considered; that evidence consonant with findings made herein has been credited, and that not consistent with such find- ings has been rejected or not credited. A. Chronology of events The Respondent's original plant in Dawson Springs burned down in 1952. There- after it rented a factory building from Dawson Springs Factories, Inc., a corporation organized by local businessmen solely to erect and provide a building for the Re- spondent. The latter owns $1,000 of stock in such corporation. The lease,' dated September 30, 1953, commences on October 1, 1953, and expires on September 30, 1958, but the Respondent is granted therein an option to renew it for three successive periods of 5 years each. It was last renewed until September 30, 1963, pursuant to such option. Starting November 1961, the Company changed its wage rates from a daywork to a piecework basis. The new system had been completed by April,2 but there was extensive dissatisfaction with it among the employees. About April, the Union initiated an organizing drive among the Respondent's employees. In late April, Victor Frumkin (Ottenheimer's president, whom I find to be a supervisor under Section 2(11) of the Act), whose office is in Chicago, Illinois, had visited the Dawson Springs plant to ascertain, among other things, how the new standards were being received by employees, and returned to Chicago. Nevertheless, Frumkin revisited the plant on May 2, after receiving a telephone call on May 1 from Plant Manager Hyde that the Union was active at the plant. Employees then were assembled in the back of the factory on company time about 9:40 a.m. on May 2. The power was turned off while they were so assembled. Employees were paid for the time spent there. All the employees, the three floorladies, and Logan 'Pursuant to leave reserved, the Union timely offered in evidence a copy of t his lease after the hearing closed. Said copy is hereby admitted as Charging Party's Exhibit No. 4. 2 All dates mentioned refer to 1962 unless otherwise noted. OTTENHEIMER AND COMPANY, INC. 41 Hyde (Ottenheimer 's plant manager , whom I find to be a supervisor as defined by Section 2 ( 11) of the Act ), attended . Frumkin, who conducted the meeting , stated in substance that: 3 (1) He hated to come back to the plant but he heard rumors that the girls were trying to get a union and he wanted to clear up the "foul air." He added that "we had to keep the Union out of the plant" because, if "we got a union in ," the Re- spondent could move the plant somewhere else. Frumkin added that Ottenheimer had never been union and it was not going to be, and it was up to the girls whether they wanted Ottenheimer 's plant to remain in Dawson Springs. (2) Dawson Springs needed "that factory." (3) Ottenheimer 's lease of the plant premises would expire in a short time and it could move south because the South was begging for industry . It was up to the girls whether the Company renewed the lease or not; that he, Frumkin , was young and could roll with the tide and go south. (4) Frumkin had letters on his desk inviting Ottenheimer to move south. He also warned that he would close the doors before he would operate the plant under the Union. (5) Frumkin also discussed production standards and incentive plans, including the necessity of changing from an hourly rate of pay to a piecework basis to meet competition . To allay unhappiness caused by this change , Frumkin asserted that he was going to have an engineer recheck the rates. Plant Manager Logan Hyde, whom I find to be a supervisor under Section 2(11) of the Act , spoke for a short time after Frumkin had finished . He informed the employees that if they had any kind of "trouble " whatsoever or any complaint about piece rates , they should discuss such problems directly with him, "instead of some fellow on the street ." Continuing , Hyde appealed to the employees to spare him the necessity of selling his home. Explaining this, Hyde stated that if the Union came in, Ottenheimer's factory would move out of Dawson Springs and he would go with it to a new location; thus he would be obliged to sell his home. About 2 days later Hyde approached employee Meneta Lee at her machine and said, "If you are on my side, talk to your sister , Judith Miller, and Norma Calvert, and see if you can't get them to change over and be on my side ." During the con- versation , Hyde asserted that "we didn 't need this union in here ," and that employees could not personally present their problems to him if the Union "got in." Finally, Hyde told her that Ottenheimer would move out and Hyde would have to sell his home and move away if the Union "came in." A few days following the meeting of May 2, Floorlady Connie Carner approached employee Phyllis Franklin at the latter's machine . Carner then presented a "paper 4 not to have the Union" to Franklin and asked her to sign it, but the latter refused. A day or so after that , Logan Hyde encountered Franklin in the plant . Hyde asked Franklin if she "liked to work there" and , upon receiving an affirmative answer, stated that if she liked to work there she should sign "that paper . not to have a union." A day or so later Carver again presented the same paper to Franklin and asked her to sign it. Fearing that she might lose her job if she resisted , Franklin this time subscribed her name to it. At that time between three and five names already appeared on it . Carner testified she induced five or six employees ultimately to sign it. Employee Dorothy Hunt had heard of a "petition" or paper being circulated at the plant for signatures of employees who did not want the Union . Upon asking Floorlady Sue Hopper whether such a document existed, Hunt was told that all the floorladies had such a paper.5 Hopper's "petition" was written by employee Joyce Nichols at Hopper's request . During their conversation Hopper also said that if enough girls signed "we wouldn 't get a vote ." Hopper obtained five or six signatures to her petition, which in substance provided that: " We the employees of Ottenheimer s Although I have numbered the remarks of Frumkin, I do not thereby mean to imply that they were uttered in that, or any other, order 4 According to Carner , this paper , which she prepared , in essence read, "117E, THE OTTENHEIMER employees , do not want the AMALGAMATED CLOTHING WORKERS as our representative." 5 Floorlady Hazel Cox also prepared a similar "petition" and obtained six or eight sig- natures thereto In substance it stated : "We the undersigned , do not wish to be repre- sented by the Amalgamated Clothing Workers of America." One of those whom Cox failed to succeed in signing is employee Ella Brothers. I find that the three floorladies , several days after May 3, met together and decided to prepare and circulate these papers or "petitions 11 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Company do not want the Amalgamated Clothing Workers Union or any other bargaining agent to represent us." By letter dated May 2, 1962, Thomas R. Marsella, regional director of the Union, wrote to Frumkin at Ottenheimer that the Union represented a majority of the production workers at the Dawson Springs plant, offered to prove its majority by a card check or any other means suggested, and requested a meeting for the purpose of negotiating a collective-bargaining contract during the week of May 7. It was received on May 3. In a letter dated May 5 to Marsella, Ottenheimer, claiming that the Respondent had doubts as to the appropriateness of the unit and advancing a "good-faith doubt" as to majority, refused recognition, but offered to "co-operate" in an NLRB election to resolve these two issues. In soliciting membership in the Union, those engaged in such conduct told some employees 6 to induce them to sign union cards, that if they then designated the Union they would be excused from paying an initiation fee, but that if they waited until after the Union "got in" they would then be required to pay such a fee upon joining the Union. One employee, Ernestine Rambo, testified that she was motivated in signing by a statement made to her by former employee Sneed, who was one of the Union's solicitors, that Sneed would get her job back 7 if Rambo signed the card. On May 4, the Union filed a representation petition requesting an election to be designated as the collective-bargaining agent of the Respondents employees. Case No. 9-RC-4970. It describes the unit sought as including "all production and shipping room employees at the Employers plant in Dawson Springs, Kentucky [excluding] office clerical employees, mechanics and all guards, professional em- ployees, and supervisors as defined in the Act." It was dismissed on October 25. On or about May 4, one Ed Beshear passed out literature to the Company's em- ployees on the sidewalk as they left the plant, announcing a meeting to be held in the evening of May 7 at the Dawson Springs High School. Beshear is a local businessman. The announcement was signed by R. A. Belt, "temporary chairman." He is a director of Dawson Springs Factories, Inc. This last corporation is the Respondent's landlord. Belt is also superintendent of schools at Dawson Springs. Most of Ottenheimer's employees and a few local businessmen attended Floorladies Carner, Cox, and Hopper, and assistant mechanic Gordon Brachter also were present. Frumkin and Hyde were absent. Belt and Fletcher Holman, cashier of a local bank, conducted the meeting. In his speech, Belt observed, among other things, that (1) President Frumkin and Plant Manager Hyde had met with him in his office that day and discussed the Union, and (2) that Frumkin told Belt that Hyde would stay, that Frumkin would not get rid of Hyde, that Frumkin was not going to operate a union shop, and that Frumkin would close or lock the doors and quit or move before he would operate under a union in the shop. Beshear also spoke at the meeting of May 7. Among other things, he remarked that in previously trying to induce a factory to locate in Dawson Springs "this Union" kept him from accomplishing such purpose. On May 8 about 8 p.m. a union meeting was held at the home of former employee Norma Sneed. About 15 employees came. Their cars were parked in the driveway and road. Employee Ausenbaugh, who was present, testified that she saw Floorlady Connie Carver pass the home four times in a car driven by Carner's husband at a "rather slow" speed, and on one occasion mentioned this to others present. Ausen- baugh also testified that, due to the fact that Dawson Springs is "rather small, every- body would know everybody's car there." At the time, according to Ausenbaugh, the weather was inclement, as it was raining heavily and lightning flashed often. Another employee present, Dorothy Hunt, looked out when Ausenbaugh called her attention to the car. Hunt did not recognize any occupant in it, although she testified that the car "looked like" Carner's. I am of the opinion that due to darkness, inevit- able from the lateness of the hour and accentuated by the overcast, it would be un- usually difficult to discern the physical features of persons in a moving vehicle. Ac- cordingly, I do not find that Carver was in the car which Ausenbaugh and Hunt described. Hunt's inability to identify anyone in the car to some extent warrants this conclusion. 9 Thelma Peroddy, Lucretia McNeely, Jo Ann Janes, Dorothy Dunbar, Louise Nelson, and Mrs Ralph Barnett Mrs. Barnett also testified that she unsuccessfully tried to have her card returned to her at some undisclosed time later on. Some of these employees did not sign cards 7 Sneed had been discharged by the Respondent for failing to fulfill production standards. OTTENHEIMER AND COMPANY, INC. 43 B. Concluding findings as to interference, restraint, and coercion 1. The status of the floorladies The Respondent's floorladies, i.e., Connie Carver, Hazel Cox, and Sue Hopper, are supervisors within the meaning of Section 2(11) of the Act. This finding is based upon the following undisputed facts adduced at the hearing: (a) Each is in charge of a line-there are 3 lines in the plant-at which about 14 production employees are constantly employed, and each is responsible for her line's production. At times more than 14 employees may be working on a line. (b) Other than Plant Manager Hyde, to whom they report, no other persons oversee the work of the employees. The Respondent employs about 60 to 65 em- ployees, so that, if the floorladies are not supervisors, it would follow that the plant manager is the only supervisor. A proportion of 1 supervisor to 60 or 65 production employees would mean not only an abnormally high percentage of employees under single supervision (Pearl Packing Company, 116 NLRB 1489, 1491; Magnode Prod- ucts, Inc., 124 NLRB 596), but would leave the plant manager as the only supervisor. (c) Each assigns employees to jobs on her line. (d) Each instructs employees on her line, correcting work improperly performed, and transfers employees from one product to another and from one machine to another on her line. (e) Each carries work to and away from the machines in her line so as to keep the line abreast of production. (f) On occasion, each may transfer an employee from her line to another floor- lady's line. (g) In the absence of the plant manager, each may excuse employees from work in an emergency before closing time. (h) Each receives more per hour ($1.35) than the employees on her line. While each case must be decided on its facts, I am of the opinion that on the record before me, cases like Birmingham Fabricating Company, 140 NLRB 640, and Little Rock Hardboard Company, 140 NLRB 264, are persuasive precedents that the floorladies possess authority responsibly to direct the work of the employees under them. Hence I find they are supervisors. Cf. N.L.R.B. v. Hamilton Plastic Molding Co., 312 F. 2d 723 (C.A. 6). Accordingly, I find that the Respondent is responsible for such conduct of the floorladies hereinafter found to constitute illegal interference, restraint, and coercion. 2. Interference, restraint, and coercion a. The May 2 speech I find that the speech of President Frumkin made on May 2, in effect, amounted to a threat that Ottenheimer would move the plant from Dawson Springs to a location farther south if it became organized, and that this threat constitutes interference, restraint, and coercion under Section 8 (a)( I) of the Act. Although this finding in large part stems from my assessment of the credibility of several witnesses, it seems desirable to point out that, to some extent, some of Plant Manager Hyde's testimony confirms this conclusion. Thus Hyde, who attended the May 2 assembly of employees, testified that Frumkin there said that he had offers from Mississippi or some other Southern State, and that he, Frumkin, could look to such offers if a strike caused a "long shortage in working" or if "the Company couldn't financially stand" a strike. Some confirmation also flows from Hyde's remarks at this meeting that if the Union came in Ottenheimer would move and he would be required to sell his home. b. Plant Manager Hyde's conduct I find Hyde's asking of employee Lee whether she was on his side to be coercive interrogation and therefore illegal . His request that Lee induce others to withdraw from the Union, his request to employee Ethel Beshear to get out of the Union or not to join it, and his talk to Phyllis Franklin concerning the "petition" contravene Section 8 (a) (1) of the Act because such conduct amounts to interference, restraint, and coercion. c. The meeting of May 7 at the high school It is not alleged that the remarks of Belt and Beshear uttered at this meeting are attributable to the Respondent, even though Belt purported to repeat certain anti- union sentiments conveyed to him by Frumkin. Hence Marshfield Steel Company, et al., 140 NLRB 985, is not applicable. In this respect the gist of the complaint is 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only that the Respondent failed to disavow the statements made to employees by Belt and Beshear. In order to sustain such portion of the complaint, the General Counsel must show that the Respondent knew of the remarks ascribed to it, and was under an obligation to disavow them. Neither President Frumkin nor Plant Manager Hyde attended that meeting. Hence they had no direct information of what transpired. Nor is there evidence that they otherwise became aware of what took place at the meeting. While it is true that Supervisors Carner, Cox, and Hopper were present, the record is barren of evidence that they communicated with Frumkin or Hyde about it. Whether the knowledge of Carver, Cox, and Hopper as supervisors may be imputed to Respondent need not be decided, for I find that the Respondent did not instigate, initiate, suggest, or prompt this meeting of May 7.8 Hence I find that the Respondent was under no duty to disavow the activities and statements there taking place These facts render Marshfield Steel, 140 NLRB 985, inapposite. Nor does the fact that the meeting was called by the Respondent's landlord, or that the Respondent owned a minor interest in said landlord's capital stock, compel a different result. I am of the opinion that Charles C. Bassine, et al., d/b/a Mylan Manufacturing Company, et al., 70 NLRB 574, 576, points the way upon this branch of the case and that it warrants the ultimate finding that no duty rested on the Respondent to disavow. d. Alleged surveillance As noted above, I have found that the person riding in a car on the evening of May 8 has not been established to be Supervisor Connie Carver. As set forth below, I have found that Gordon Bratcher is not a supervisor. Accordingly, I find that paragraph 5(d) of the complaint relating to surveillance must fail for want of proof. In view of this finding, the motion to strike Bratcher's name from said paragraph 5(d) has become moot. e. The petition to repudiate the Union As found above, Carver, Cox, and Hopper are supervisors. It is not denied that they invited employees to sign petitions intended to repudiate the Union. Such con- duct, I find, constitutes interference, restraint, and coercion within the purview of Section 8 (a) (1). C. Concluding findings as to the refusal to bargain 1. The Union's majority General Counsel's Exhibit No. 7 contains a list of 66 names of employees on the payroll of May 2, 1963, the last payroll date preceding receipt of the Union's demand for recognition. The parties are in agreement that all but five are to be included in any total in ascertaining the Union's majority. Three of these five are floorladies whom I have already found to be supervisors under Section 2(11) of the Act, viz, Carver, Cox, and Hopper. Accordingly, these three shall be deleted from the list. The other two are Morris and Bratcher. Aminell Morris was on sick leave on May 3. The question is whether she properly can be counted as an employee as of that date. This in turn depends upon whether a reasonable expectancy existed that she would be recalled and, if recalled, would be physically able to return to work. She underwent an operation "a little over a year ago," but received no benefits from Ottenheimer while on sick leave. As of the time of the hearing herein, January 8 to 10, 1963, Morris had not recuperated and, being still totally disabled, has not been able to resume her employment. Originally Miss Morris was granted 3 months' sick leave. Her "last pay roll was 1-6-62," and she has not worked since then. When she again reported disabled, after 3 months, de- scribing her condition, Hyde promised to "keep paying " 9 her Blue Cross insurance 8 While it is not denied that Frumkin and Hyde called on Belt on or about May 2, it -does not follow that the former two solely by reason thereof actually or Impliedly sanc- tioned the meeting of May 7 or that they vested or clothed Belt with authority to call such a meeting. Nor do I find the other evidence in the record sufficient to draw such inferences. Accordingly, it is not necessary to discuss the evidence relating to what occurred in Belt's office on May 2 or the contents of a telephone call on May 2 from Beshear to Johnstone, counsel for the Respondent. 6 Morris actually paid for the insurance , but sent money for the premiums to Hyde, who In turn transmitted this money to the insurance carrier. OTTENHEIMER AND COMPANY, INC. 45 and that he would reinstate her when she came back , but he "would not promise . her machine back." It is now reasonably certain that she "will never be back." As a a result she has dropped her Blue Cross insurance with the Company . On these facts I find that Morris had no reasonable expectancy of returning to work on May 3. Accordingly, she is excluded from the unit because she was not employed therein. Gordon Bratcher , whose status the parties dispute, is listed as an apprentice mechanic. With Plant Manager Hyde, the two constitute the entire maintenance department . Bratcher also performs other jobs to which Hyde assigns him. But Bratcher has no power to give or recommend raises, to hire or fire , or to "control" employees . Although he fixes machines , he also packs bundles, helps out in the shipping room, and "practically anything that comes up around he does." His wages are $1.75 an hour, and thus considerably more than the $1 . 35 received by the three floorladies . On these facts I find that Bratcher is not a supervisor and that, there- fore, he is to be included in the unit. Consequently, I find that on May 3, when the Respondent received the Union's demand for recognition , 62 employees were working in the unit . I further find that on that date the Respondent had signed up 39 employees , which is patently a majority. All of the cards of said 39 were not put in evidence , although many were received. It follows that the Respondent was obliged to recognize the Union on May 3 and that its admitted refusal to recognize and bargain with it thereafter violates Sec- tion 8 ( a) (5), unless any one of three asserted defenses is tenable . N.L R.B. v. Irving Taitel, Ruth Taitel and Jerome Taitel, d/b/a I. Taitel and Son, 261 F. 2d 1 (C.A. 7). I shall proceed to discuss them. 2. Respondent 's alleged justifications for its refusal to bargain a. The good-faith doubt of a majority In its letter of May 5 the Respondent insisted , among other things, upon "a good faith doubt as to whether or not a majority of the employees of this company desire to have [the] union as their bargaining agent." However, when Plant Manager Hyde on cross -examination was asked why the Respondent withheld recognition, Hyde replied , "I feel they don't know what unit they want ," and added , when pressed for other reasons, that some employees were induced to join by a promise to dispense with initiation fees. Neither ground establishes a good-faith doubt as to majority within the contemplation of that rule as promulgated in Emma Gilbert, et al., d/b/a A. L. Gilbert Company, 110 NLRB 2067 , 2069-2071. Manifestly an inability or unwillingness to accept a proposed unit fails to establish a good -faith doubt as to majority. And the fact that a few employees were forgiven initiation fees not only falls short of showing that this proposition was made to a majority , but also the credible evidence is insufficient to show that such knowledge came to Hyde 's knowl- edge by May 3. Nor does the other credible evidence in the record tend to establish a good-faith doubt of majority . 10 Without reciting anew such evidence , it is sufficient to observe that it discloses unfair labor practices resorted to by the Respondent to wean em- ployees away from union membership or activity , as well as supervisor-sponsored petitions calculated to avoid collective bargaining . Traders Oil Company of Houston, 119 NLRB 746, 749-750. Hence I find that Joy Silk Mills, Inc, 85 NLRB 1263, enfd. as modified 185 F. 2d 732, 741 (C A.D.C.), is controlling , and Beaver Machine & Tool Co., Inc., 97 NLRB 33, 35, is distinguishable . See also Squirrel Brand Co., Inc., 96 NLRB 179. Similarly , Summit Mining Corporation v. N.L.R.B., 260 F. 2d 894, 900 (C.A. 3), is not relevant. Accordingly, on consideration of the entire record, I find that the Respondent was not justified in good faith to doubt the Union's majority on May 3. Howard W. Davis, d/b/a The Walmac Company (Radio Station KMAC & FM Station KISS), 106 NLRB 1355, and Caldwell Packaging Company, 125 NLRB 495, upon which the Respondent relies, do not compel a contrary result. 1o Although there is evidence in the record that Plant Manager Hyde was "dying" to see the "petition" circulated by Floorlady Hopper, and other evidence that he at least invited one employee (Franklin) to sign a "petition," the Respondent is not aided thereby Assum- ing that Hyde's knowledge of such alleged employee disaffection warranted a finding of a good-faith doubt of the Union's majority, it is sufficient to note that, as herein found, these petitions were neither conceived nor prepared until several days after May 3. Hence the "petitions" could not have served to create a doubt on May 3 as to the majority status of the Union 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Whether the Union's majority is tainted by the waiver of an initiation fee Apart from the fact that the Respondent's evidence falls short of showing that a substantial number of those signing union cards were excused from paying initiation fees, I find that even if such evidence had been produced it would not have con- taminated the Union's majority. While I recognize that "employees' freedom of choice" must remain unimpaired (Teletype Corporation, 122 NLRB at 1595), and that coercion or fraud soliciting membership may not reflect the employees' true de- sires and will vitiate a union's majority (Stor-all Corporation, 94 NLRB 1148), I am of the opinion, and find, that a promise to forgo initiation fees during an organizing campaign does not amount to coercion or fraud when such waiver is un- conditional and is not dependent upon the outcome of an election. Lobue Bros., 109 NLRB 1182, as construed in Gilmore Industries, Inc., 140 NLRB 100, does not contradict this conclusion. Teletype Corporation, 122 NLRB 1594, is distinguish- able. Nothing said in N.L.R.B v. Gorbea, Perez & Morell, S. en C., 300 F. 2d 886 (C.A. 1), detracts from this result. In my opinion, the situation is controlled by The Root Dry Goods Company, d/b/a The Root Store, 88 NLRB 289; General Electric Company, 120 NLRB 1035; The Gruen Watch Company, The Gruen National Watch Case Company, 108 NLRB 610; and cognate cases. Englewood Lumber Company, 130 NLRB 304, cited by the Respondent, involved misstatements in obtaining signatures to cards. Nor does the contemporaneous filing of a representation petition, and its with- drawal or dismissal, excuse the Respondent from its obligation to recognize and bargain with the Union. General Medical Supply Corp., 140 NLRB 712; N.L.R.B. v. Whitelite Products Division of White Rolling & Stamping Corporation, 298 F. 2d 12, 14 (C.A. 1). See Rea Construction Company, 137 NLRB 1769. In my opinion N.L.R.B. v. Dan River Mills, Incorporated, Alabama Division, 274 F. 2d 381 (C.A. 5), is distinguishable, for in that case, unlike here, the employer did not engage in conduct calculated to destroy the Union's majority. c. Whether the unit requested is inappropriate Ordinarily only a unit composed of production and maintenance employees is appropriate in the garment industry. Mark J. Gerry, Inc. d/b/a Dove Manufactur- ing Company, 128 NLRB 778. And a request for an inappropriate unit need not be heeded. Citation of authority would be supererogatory. However, a claim for recognition in a slightly different unit which fundamentally coincides with an appro- priate unit does not thereby destroy the lawfulness of the demand. Where "the variance between the unit sought and the unit later found appropriate" is not sub- stantial, the demand cannot be ignored; and a refusal to comply with it demonstrates want of good faith. Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO (Washington Coca-Cola Bottling Works) v. N.L.R.B., 257 F. 2d 194, 196 (C.A.D.C.). Hence, the question here is whether the Union's description on May 3 of a unit of production workers had so materially departed from the essence of an appropriate unit that it cannot be salvaged in this proceeding. Daniel Crean and Joseph Messore d /b/a The Grand Food Market, 139 NLRB 73. Manifestly all the employees employed in the Company's production and mainte- nance operations are actually production workers with one exception, viz, Gordon Bratcher, the part-time mechanic. It would seem, then, that the Union has mis- designated the unit in a minuscule respect. This variance can hardly serve as a de- fense; manifestly no more is involved than a minor aberration which does not affect the essential composition of the unit. Substantial justice requires that this can be corrected by redefining the unit to include the one employee who acts as a part-time mechanic. Washington Coca-Cola Bottling Works, Inc, 122 NLRB 7; Mrs. Homer E. Ash, and Bill H. B. Williams, A Copartnership doing business as Ash Market and Gasoline, 130 NLRB 641. Accordingly, I find that on May 3, the Union made a request for a unit which was not inappropriate and that the Respondent was not justified to question it. I also find that the Union enjoyed a majority in both the unit it requested as well as the appropriate unit. I further find that the appropriate unit on May 3 was "all produc- tion and maintenance employees at the Respondent's plant in Dawson Springs, Kentucky," excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act." n Since the part-time mechanic also performs the shipping department work, there is no necessity specifically to classify such work as part of the unit. OTTENHEIMER AND COMPANY, INC. 47 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of the Respondent which have been found to be unlawful, as set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Since the record demonstrates that the Respondent has interfered with the right of its employees to enjoy their rights as guaranteed by Section 7 of the Act, it will be recommended that an order issue which will assure noninterference with those rights by like or related conduct. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in and at all times material herein was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. All production and maintenance employees at the Respondent's plant at Daw- son Springs, Kentucky, excluding office clerical employees, guards, professional em- ployees, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Sections 9(b) and 8(a) (5) of the Act. 4 On May 3, 1962, and at all material times thereafter, the Union represented a majority, and was the exclusive representative, of all the employees in the afore- said appropriate unit for purposes of collective bargaining within the meaning of Sections 8(a) (5) and 9 of the Act, and the Respondent was on that date, and since, obliged to recognize and bargain with the Union as such. 5. By threatening to move its plant to another State if the Union got in; by coercively interrogating employees; by orally, and by petitions, attempitng to induce employees to withdraw from or to refuse to join the Union; and by asking employees to induce other employees to withdraw from the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. 6. By refusing to recognize or bargain with the Union in an appropriate unit on and since May 3, 1962, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. 7. The above-described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent has not committed any other unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize or bargain collectively with the Union as the ex- clusive representative of all the employees in the above-mentioned appropriate unit. (b) Interrogating employees concerning their union membership, activities, or desires in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) Inducing or attempting to induce employees, by oral solicitation or written petitions, to withdraw from or refuse to join the Union or any other labor organiza- tion, and requesting employees to solicit other employees to withdraw from the Union. (d) Threatening employees that it will move South if the Union becomes their collective-bargaining representative. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, to join or assist the Union or any other labor organization , to bargain col- lectively through representatives of their own choosing, and to engage in other con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive repre- sentative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant at Dawson Springs, Kentucky, copies of the attached notice marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Di- rector for the Ninth Region, shall, upon being signed by the Respondent's repre- sentative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its 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 the Ninth Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.13 It is further recommended that the complaint be dismissed in all other respects. It is finally recommended that unless the Respondent shall, within the prescribed period, notify the said Regional Director that it will comply, the Board issue an Order requiring the Respondent to take the action aforesaid. 12If 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. If 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 " 17 If this Recommended Order is adopted by the Board, this provision shall be modified to read, "Notify the Regional Director for the Ninth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL, upon request, bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such an understanding in a signed agreement. The bargain- ing unit is: All our production and maintenance employees in our plant at Dawson Springs, Kentucky, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of the em- ployees in the bargaining unit described above. WE WILL NOT interrogate our employees concerning their union membership, activities, or desires in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT threaten our employees that if Amalgamated Clothing Workers of America, AFL-CIO, becomes their collective-bargaining representative, we will move our plant to some other State in the South. WE WILL NOT ask employees to influence other employees to drop out of Amalgamated Clothing Workers of America, AFL-CIO. WE WILL NOT circulate petitions in our plant against the above-named labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. LOS ANGELES BLDG. & CONSTRUCTION TRADES COUNCIL 49 All our employees are free to become or remain, or to refrain from becoming or remaining , members in good standing of said Amalgamated Clothing Workers of America, AFL-CIO, or any other labor organization. OTTENHEIMER AND COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati , Ohio, Telephone No. Dunbar 1-1420, if they have any question concerning this notice or compliance with its provisions. Los Angeles Building & Construction Trades Council; and Plumbers & Pipefitters Local No. 398 [Stockton Plumbing Co.; and N. Evasaviac and K. J. Swisher] and Jones and Jones, Inc., and Interstate Employers , Inc. Case No. 21-CC-602. August 20, 1963 DECISION AND ORDER On a charge duly filed on March 6, 1963, by Jones and Jones, Inc., and Interstate Employers, Inc., the General Counsel of the National Labor Relations Board issued a complaint dated April 23, 1963, against Los Angeles Building & Construction Trades Council, and Plumbers & Pipefitters Local No. 398, alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (i) and (ii) (A) and (B) of the National Labor Relations Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959. Copies of the complaint and notice of hearing were duly served upon the Respondents and the Charging Parties. The Respondents filed an answer to the complaint denying the commission of the alleged unfair labor practices. On May 15, 1963, the parties jointly filed a motion to transfer pro- ceedings to the Board with a stipulation of facts entered into by the parties on May 8, 1963, attached thereto. The parties agreed that the formal papers, including the exhibits attached thereto, constitute the entire record in the case. The parties waived oral argument in the matter, a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of an Intermediate Report and Recommended Order, and submitted the case for findings of fact, conclusions of law, and order directly by the Board. By order dated May 16, 1963, the Board granted the joint motion of the parties and made it part of the record herein. Pursuant to such motion, the Board transferred the proceedings to, and continued it before, the Board. The Board fixed a time for the filing of briefs, and 144 NLRB No. 3.