Aaron Brothers Co. of California

National Labor Relations Board - Board Decisions

May 25, 1966

158 N.L.R.B. 1077 (N.L.R.B. 1966)

AARON BROTHERS COMPANY OF CALIFORNIA 1077
CONCLUSIONS OF LAW
1. The Unions are labor organizations within the meaning of the Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act and it will effectuate the purposes of the Act to assert jurisdic-
tion in this case.
3. By interfering with , restraining , and coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act, as found above , Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The settlement agreement approved by the Regional Director on Novem-
ber 30, 1964 , in Case No. 16-CA-2151-2 should be reinstated.
[Recommended Order omitted from publication.]
Aaron Brothers Company of California and Miscellaneous Ware-
housemen, Drivers & Helpers , Local 986, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 31-CA-14 (formerly 21-CA-5940). May 25,
1966
DECISION AND ORDER
On May 19, 1965, Trial Examiner James T. Barker issued his
Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as amended, and rec-
ommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint, and recommended that those allegations be dismissed.
Thereafter, Respondent and the Charging Party, respectively, filed
exceptions to the Decision and a brief in support thereof. Both the
General Counsel and the Charging Party then filed answering briefs
to the Respondent's exceptions.
The National Labor Relations 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, the
briefs, and the entire record in this case , and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, to
the extent consistent herewith.
As disclosed in the Trial Examiner's Decision, the relevant facts
are not in d^_ pute. In April 1964, the Union began its organizational
campaign among Respondent's employees. On May 6, Respondent
received a letter from the Union requesting recognition and bar-
gaining. On May 7, the Union filed a representation petition which
158 NLRB No. 108.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was subsequently withdrawn as a result of the issuance of the com-
plaint in the instant case On July 28, the Union orally renewed its
request for recognition The Respondent rejected the request and
urged that the petition be reinstated so that an election could be held
The complaint alleges that the Respondent thereby unlawfully re-
fused to bargain 1
The Trial Examiner concluded that on July 28 the Union repre-
sented a majority of the employees 2 and that the Respondent refused
to bargain in violation of the Act because its rejection of the bar-
gaining request was not grounded upon a good-faith doubt of the
Union's majority status The Respondent excepted l o this finding a
Upon consideration of the entire record, we conclude that the Trial
Examiner's conclusion cannot be sustained
While an employer's right to a Board election is not absolute,4 it
has long been established Board policy that an employer may refuse
to bargain and insist upon such an election as proof of a union's
majority unless its refusal and insistence were not made with a
good-faith doubt of the union's majority 5 An election by secret bal-
lot is normally a more satisfactory means of determining employees'
wishes, although authorization cards signed by a majority may also
evidence their desires Absent an affirmative showing of bad faith,
an employer, piesented with a majority card showing and a bar-
gaining request, will not be held to have violated his bargaining
obligation under the law simply because he refuses to rely upon
cards, rather than an election, as the method for determining the
union's majority 6
Here, the Trial Examiner, in effect, found that good faith was
missing because Respondent did not offer any evidence "warranting
a conclusion that the Union's claim [of majority] was inaccurate or
unsupportable" But where, as here, there is no prior bargaining
1The complaint also included allegations of violations of Section 8 (a (3) which were
dismissed by the Trial Examiner The Respondent laid off 11 employees on May 6 and 2
employees on May 8 and the Trial Examiner found that the layoffs were economically
motivated The Union excepted but the Trial Examiners conclusion was based on
credibility resolutions and there is no basis for setting it aside Furthermore there is
ample ei idence supporting the economic reasons offered to justify the layoffs
2 The Union did not have a majority when it made its first request but its majority on
July 28 ( 26 of 40 employees ) is clear and the validity of the cards is not questioned
3 The Respondent 's exception contends that the Union did not represent a numerical
majority on July 28 It argues that 13 laid off employees should be counted as well as
one whose name was inadvertently left off the payroll list However even if they were
included , 10 of these 14 employees had signed authorization cards prior to the Union's
request thereby strengthening the Union 's majority status on that date rather than
weakening it
d United Mine Workers of America v Arkansas Oak Flooring Co 351 US 62 74-75,
N L R B v Trimfit of California Inc , 211 F 2d 206 209 ( C A 9) N L R B v Elliott
Williams Co Inc , 845 F 2d 460 (C A 7)
5 Joy Silk Mills Inc , 85 NLRB 1263 , 1264 enfd 185 F 2d 732 (CAD C) cert denied
341 U S 914
6 Briggs IGA Foodliner, 146 NLRB 443 Cameo Lingerie Inc 148 NLRB 535 Strydel
Incorporated, 156 NLRB 1185
AARON BROTHERS COMPANY OF CALIFORNIA 1079
relationship between the parties, as the Board recently held in John
P. Serpa, Inc.,7 it is the General Counsel who must come forward
with evidence and affirmatively establish the existence of such bad
faith.3
Whether an employer is acting in good,or bad faith in questioning
the union's majority is u determination which of necessity must be
made in the light of all the relevant facts of the case, including any
unlawful conduct of the employer, the sequence of events, and the
time lapse between the refusal and the unlawful conduct.9 Where a
company has engaged in substantial unfair labor practices calculated
to dissipate union support, the Board, with the courts' approval, has
concluded that employer insistence 'on an election was not motivated
by a good-faith doubt of the union's majority, but rather by a re-
jection of the collective-bargaining principle or by a desire to gain
time within which to undermine the union.10 However, this does not
mean that any employer conduct found violative of Section 8(a) (1)
of the Act, regardless of its nature or gravity, will necessarily sup-
port a refusal-to-bargain finding. For instance, where an employer's
unfair labor practices are not of such a character as to reflect a pur-
pose to evade an obligation to bargain, the Board will not draw an
inference of bad faith.-
On the other hand, an employer's bad faith may 'also be demon-
strated by a course of conduct which does not constitute an unfair
labor practice. Thus, in Snow c€ Sons,12 the employer's objective
of seeking delay and its rejection of the collective-bargaining concept
was manifested when it repudiated a previously agreed-upon card
check indicating the union's majority status by continuing to insist
on an election .1-3 Similarly, in Greyhound Terminal'14 the employer
7155 NLRB 99.
8 The situation here is to be distinguished from one where a rebuttable presumption of
continuing majority status has arisen from a prior certification or contract.
8 Joy Silk Mills , Inc., supra.
30 Joy Salk Mills, Inc., supra, at 185 F. 2d 723 (C.A.D.C. ). The rule of the Joy Silk
case conforms to the Board 's objective of utilizing the most reliable means available to
ascertain the true desires of employees with respect to the selection of a collective-
bargaining representative . Where an employer has engaged in unfair labor practices, the
results of a Board -conducted election are a less reliable indication of the true desires of
employees than authorization cards, whereas , in a situation free of such unlawful inter-
ference, the converse is true.
11 Hammond & Irving, Incorporated, 154 NLRB 1071. There , 6 employees out of ap-
proximately 110 were questioned as to their union sentiments and the Board said that
"[thhis interrogation , while unlawful , was not so flagrant that it must necessarily have
had the object of destroying the Union 's majority status ." Clermont's, Inc., 154
NLRB 1397.
12 134 NLRB 709, enfd. 308 F 2d t187 ( C A. 9).
liTo the same effect, see Dixon Ford Shoe Co., Inc., 150 NLRB 861 ( card check by a
third party showing majority , followed by rejection of results without reason and insistence
on Board election ) ; Kellogg Mills, 147 NLRB 342 , 346, enfd. 347 F. 2d 219 (C A. 9)
(card check by a third party followed by actual bargaining and then newly retained
counsel for the company insisted on an election).
14137 NLRB 87, enfd . 314 F. 2d 43 (C.A. 5) ; and Jem Mfg., Inc., 156 NLRB 643.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revealed its bad faith, inter alia, by questioning the union's majority
and insisting on an election 2 days after it had, pursuant to an under-
standing, met with the union, accepted and examined membership
cards tendered, and acknowledged that the union was the duly au-
thorized representative of the employees 15
In the instant case, the Respondent answered the Union's July 28
demand for initial recognition and bargaining by urging a Board
election and requesting that the Union reinstate the election petition
which had previously been withdrawn The Respondent did not
engage in any contemporaneous misconduct and the General Counsel
did not introduce other affirmative evidence from which an inference
of bad faith might be drawn Undei these circumstances, the Gen-
oral Counsel has not met his burden of establishing that the Respond-
ent's insistence upon an election to establish the Union's maj,oiity
was improperly motivated Accordingly, we shall dismiss the com-
plaint in its entirety
[The Board dismissed the complaint ]
MEMBER JENKINS, concurring
I agree with the result my colleagues reach here, and with most of
their reasoning However, one part of their rationale, the reliance
on the presence or absence of the Employer's "good-faith doubt of
the Union's majority" as a ground for deciding the case, appears to
me to be misplaced Here, the Employer rejected the cards as proof
of majority with a statement, unsupported by any evidence, that he
doubted the Union's majority, in Serpa, supra, he rejected the cards
as proof without expressing any view as to the majority In neither
case was there any further conduct by the Employer or any other
circumstances from which any inference could be drawn as to
whether the "doubt" of the majority sprang from good faith or bad
faith, and in both cases the Employer proposed a prompt election to
determine the majority In Serpa, the Board dismissed the com-
plaint because thei e was no prcof that the employei acted in bad
faith in demanding an election instead of accepting the cards as
proof of the union's majority Here, as my colleague, note, the Trial
Examiner found the violation because the Employer offered no evi-
dence "warranting a conclusion that the Union's claim [of majority]
was inaccurate or unsupportable," i e, because the Employer failed
to justify a good-faith doubt of the majority This conclusion the
Board now reverses These decisions necessarily mean that the mere
The employer in renouncing his original position also admitted that his attorney
advised him that he "already talked too much " The union then told the employer that
he could ask his employees whether they joined the union or "count them walking the
picket line " A few hours later a majority of the employees began picketing and they
were thereafter replaced
AARON BROTHERS COMPANY OF CALIFORNIA 1081
absence of a good-faith doubt of the majority, an unsupported ex-
pression of doubt, or a "no opinion" attitude toward its existence,
does not require the employer to accept the cards as proof of it
In my view, the proper test (and the one in fact applied by my
colleagues ) in such cases is whether or not the employer's refusal to
accept the cards as proof of majority, and to recognize and bargain
with the union, was made in bad faith, with the General Counsel
having the burden of showing affirmatively the existence of bad
faith Bad faith may be established by, among other things, em-
ployer conduct displaying a refection of the collective-bargaining
principle, a purpose to thwart or interfere with the employees' free
choice of their bargaining representative, or a desire to gain time
within which to undermine the union or dissipate the majority, or by
independent knowledge of the employer that the union has a
majority
Thus, the concept of "good-faith doubt of majority," whatever its
relevance in other types of Section 8(a) (5) violations, has become
irrelevant to the decision of cases of this type, where the employer
rejects the card showing but engages in no violations of the Act, no
undermining of the union, no interference with the employees' free-
dom of choice, and does not otherwise exhibit bad faith Retention
of this concept in such cases can only confuse the parties, the bar,
and the Trial Examiner, and thereby increase the Board's own work-
load I would therefore delete that portion of the decision referring
to "good-faith doubt of majority"
MEMBER ZAGORIA, concurring
I agree with my colleagues that the complaint herein should be
dismissed I would not find unlawful a refusal to recognize a union
on the basis of a proffered card showing when the employer insists
on an election and does not commit unfair labor practices In taking
this position I do not suggest any disagreement with the result in
cases such as Snow cC Sons, supra, for there the employer agreed to
recognize the union on the basis of an independent card check, and
then reneged on his agreement after the card check did demonstrate
the union's majority
TRIAL EXAMINER'S DECISION
STATEMENT OP THE CASE
Upon a charge filed on May 11, 1964, b) Miscellaneous Warehousemen , Drivers
& Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , hereinafter referred to either as the Charging
Party or as the Union , and an amended charged filed on July 10, 1964, by the
Charging Party, the Regional Director of the National Labor Relations Board for
Region 21 , on July 14 , 1964 , issued a complaint and notice of hearing designating
Aaron Brothers Company of California as Respondent and alleging violations of
Section 8(a)(1), (3 ), and (5 ) of the National Labor Relations Act, as amended,
hereinafter called the Act
1082. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice a hearing was held before Trial Examiner-James T. Barker,
at Los Angeles, California, on October 8. 9, 13, and 14, 1964. All parties were
represented at the hearing and were afforded full opportunity to be heard, to intro-
duce relevant evidence, to present oral argument, and to file briefs with me. Coun-
sel for the Respondent made a closing statement, and, subsequently, on Novem-
ber 30, 1964, the Respondent and General Counsel filed briefs with me.
Upon consideration of the entire record, the closing statement,of the Respond-
ent, the briefs of the General Counsel and of the Respondent, and upon my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material herein,-a partnership with its
principal office and place of business located in Los Angeles, California, where it
is engaged in the manufacture and sale of paintings and related art objects. Dur-
ing the calendar year immediately preceding the issuance of the complaint, Respond-
ent sold merchandise having a value in excess of $500,000 and during the same
period sold and shipped products directly to customers located outside the State
of California valued in excess of $50,000.. Further, during the same period,
Respondent purchased and received goods and materials directly from points out-
side the State of California valued in excess of $50,000. Upon these admitted
facts, I find that the Respondent is engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that Miscellaneous Warehousemen, Drivers
& Helpers, Local 968, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that since on or about May 5, 1964,1 and thereafter, .the
majority of the employees of the Respondent in a production and maintenance
unit appropriate for collective bargaining designated the Union as its collective-
bargaining representative and that since on or about May 6, and thereafter, the
Union has requested the Respondent to bargain collectively with it, which request
the Respondent has refused. Additionally, the General Counsel adduced evidence
at the hearing which he asserts reveals that on July 28 the Union specifically reiter-
ated its claim of majority status and renewed its bargaining request. In light of
the foregoing, the complaint alleges that the Respondent has since May 6, refused
to bargain collectively with the Union in violation of the Act.
The complaint further alleges that on May 6, the Respondent laid off 11 employ-
ees for the unlawful purpose of discouraging membership in the Union in violation
of Section 8(a)(3) and (1) of the Act. The complaint further alleges that in a
similarly unlawful manner and in violation of the same section of the Act, the
Respondent on May 8, laid off two additional employees?
The Respondent denies that it refused to bargain collectively with the Union in
violation of Section 8(a)(5) of the Act in that at the time of the Union's bargain-
ing demand , and at all times thereafter, the Respondent entertained a good-faith
doubt as to the Union's majority status; and asserts further that at` no' time since
the Union's bargaining demand has the legal obligation devolved upon it to bargain
collectively with the Union in that at the time of the Union's bargaining demand
and until July 14, there was pending before the National Labor Relations Board a
representation petition filed by the Union to determine the question concerning
representation of Respondent's employees, and since July 14, there has been pend-
ing before the Board the complaint and notice of hearing in the instant proceeding.
The Respondent further contends that the evidence adduced at the hearing-estab-
lishes that the Union did not, in fact, represent a majority of Respondent's employ-
ees at the time of its ' bargaining demand. The appropriateness of .the unit is
admitted.
? Unless otherwise indicated , all dates refer to 1964.
2The complaint was amended at the hearing to delete a third individual ,, Chailes Brown.
AARON BROTHERS CONIPANY OF CALIFORNIA 1083
The Respondent furthei contends with respect to the alleged unlawful discharge
of employees that it had no knowledge of any union activity or affinity on the
part of the laid-off employees at the time that the layoff decision was made; and it
further asserts that all discharges were rendered necessary and were made pur-
suant to a business decision to effect necessary economies in operations.
A. The alleged refusal to bargain
1. The employee complement
The parties stipulated that on May 6, the Respondent employed 66 employees
in the production and maintenance unit .3 Additionally, the parties stipulated that
on July 28 (when the Union claims it reiterated its bargaining demand and reas-
serted its claim of majority status), 40 employees were employed in the production
and maintenance unit .4
2. The Union's bargaining demand
On the morning of May 6, between the hours of 10 and 11 a.m., a letter from
the Union dated May 5, and bearing the signature of Business Representative
Theron Tison was received in the due course of the mail et Respondent's establish-
ment. The letter was addressed to Respondent, to the attention of Messrs. Al
Aaron and Lynn (sic) Aaron. The letter asserted in substance that the Union had
conducted an organizational campaign among Respondent's employees and that
the Union claimed representation of a majority of the production and maintenance
employees. The production and maintenance unit in which the Union claimed
majority status was defined in specific terms in the letter. Additionally, the letter
contained the following two paragraphs:
The Union requests that you recognize it as the exclusive collective bargain-
ing representative for the bargaining unit set forth above, and that a confer-
ence be scheduled at your convenience in the near future for the purpose of
negotiating a collective bargaining agreement. Will you please advise the
undersigned of a convenient date and time for such conference.
Frequently Employers desire certification by the National Labor Relations
Board. In the belief that you may wish such a certification, and in order to
avoid a loss of time, we are filing a petition for an election with the N.L.R.B.
However, if you are satisfied that the Union represents a majority of your
employees in the bargaining unit, or if you are willing to resolve any question
you may have about our majority status by a check of the signed authorization
cards of employees against your records, we are willing to withdraw our
petition for an election and enter into an appropriate agreement with you
according us recognition for a card check.
Upon its receipt the letter was taken by a secretary into the office of Al Aaron
who at the time was engaged in a conference with a customer. Because of the
exigencies of the conference, lunch, and a visit to his bank, Al Aaron did not
38. Bordman, A. Bravo, C. Brown, H. Brown, E. Burstein, J. Collins, E. Daniels,
T. Daniel, J. Descalzi, M. DeVore, T. Dickey, W. Dirlamm, A. Dominguez, A. Dorn,
E. Estrada, D. Finkielsztejn, it. Franciosa, J. Galante, D. Gerecht, V. Giron, A. Gomez,
it. Gomez, L. Grant, L. Harper, G. Hauman, Mr. Gayden, M. Howard, J. Icochea
(Icochea Perez ), T. James, F. Jennings , R. Juarez, M. Kalman, it. Kelsey, Taewon Kim,
Tat Jo Kim, T. Lambert, C. Lopez, B. McDade, P. Melnyk, W. Meunier, W. Morgan, T.
Morgas, E. Mullins, E. Murray, H. Oawster, M. Packer, K. Park, A. Pelles, J. Perez,
J. Ragan, S. Reeves, F. Reyna, W. Robinson, A. Rodel, R. Salas, G. Santacruz, it. Santacruz,
J. Scott, H. Shimakawa, C. Stone, R. Sullivan, D. Thompson, 0. Vaughn, D. Westengard,
and it. White.
* Werner Dirlamm, Eduardo Estrada, Ric Franciosa, Joseph Galante, Val Giron, Anselmo
Gomez, Robert Gomez, Lewis Harper, Marvin Hayden, Richard Juarez, Robert Kelsey,
Tai Jo Kim, maewon Kim, Thomas Lambert, Pedro Melnyk, William Meunier, William
Morgan, Ed mullins, Billy McDade, Kyu Park, Andrew Pelles, Juan Perez, Frank Reyna,
G. Santacruz, it. Santacruz, Hideo Shimakawa, David Thompson, Ossie Vaughn, David
Westengard, Thomas Daniel, Emma Murray, Clara Stone, Arthur Dorn, William Robinson,
Alfonso Bravo, Henri Brown, Ed Daniels, Jose Descalzi, Sanford Bordman, and Toby
Morgas.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss the letter with his brother, Len, until mid-afternoon of May 6 However,
he had earlier scanned the letter, recognized that it dealt with a matter of "some
importance" to the company, and had experienced "displeasure" at its contents
Upon meeting his brother, Len, in the plant, Al Aaron apprised him that he had
placed some "important mail" on his desks
On May 7, the Union filed a representation petition with the Board's Regional
Office whereby it sought certification in a production and maintenance unit of
Respondent's employees at its 960 North La Brea Street plant
Subsequently, as established by the credited testimony of Al and Len Aaron and
John Fretwell, on or about May 10, Respondent engaged the services of John C
Fretwell, a labor relations consultant Upon being retained, Fretwell was given
custody of the Union's May 5th letter and was given authority to act for Respond-
ent in matters pertaining thereto
Fretwell credibly testified that on May 13, he replied to the Union's May 5
letter as follows
The firm of Fretwell & White, Ltd is the labor relations representative for
the above Company
Any and all correspondence relative to matters of Labor Relations activities
are to be directed to this office to the attention of the undersigned with a copy
to the employer Equally applicable, are telephone calls of a similar nature
to the Company named above are to be made to this office
Any questions which you may have relative to our client should be made to
the undersigned
Fretwell caused the May 13 letter to be mailed but received no direct reply In
the meantime, on May 11, the Union had filed unfair labor practice charges with
the Regional Director alleging violations of the Act flowing from Respondent's
alleged refusal to bargain with it, and its May 6 and 8 layoff of employees On
July 10, the Union filed amended charges in the instant matter and thereafter, on
July 14, the Regional Director issued the complaint and notice of hearing herein,
and on July 17 the representation petition was withdrawn Matters rested there
until July 27, when Tison endeavored to contact the Respondent by telephone He
spoke instead to Fretwell and an appointment was made for a meeting to tran
spire the next morning at Fretwell's office
On the morning of July 28, Fretwell met in his office with Tison and Marvin
Griswold, president of Local 986 The meeting lasted approximately 10 minutes
As the conversation commenced, Tison asserted that the Union represented a
majority of Respondent's employees and requested that Respondent recognize the
Union and enter into collective bargaining negotiations with it Griswold inter-
jected, underscoring the Union's claim of majority status In response, Fretwell
observed that the Union had voluntarily "filed a representation petition with the
National Labor Relations Board" and urged the Union to reinstate that petition
and determine the Union's majority status by a secret ballot Additionally, Fret-
well denied that the Union represented a majority of Respondent's employees The
conversation then turned to the resolution of the pending unfair labor practice
charges Tison expressed his interest in having the laid-off employees returned
to work, but Fretwell replied that if the solution to the problem were grounded
upon acceptance of the settlement suggested to it by the Regional Office, it would
be necessary to proceed to hearing under the then pending unfair labor practice
complaint Fretwell asserted that the Regional Office had proposed settlement on
the basis of a preferential hiring list and immediate recognition of the Union
Tison answered that he was interested in getting the men back to work and stated
that he would recommend to the men a compromise in the matter of backpay as an
5 The foregoing findings are based upon the credited testimony of Al Aaron and Len
Aaron as supported by that of Arlyne Krueger Principal reliance is placed upon the
testimony of Al Aaron with respect to the sequence of events relating to the receipt of
the Unions May 5 letter the manner in which it w is called to Len Aaron s attention
and the time of their discussion of the letter'9 contents Both Al and Len Aaron im
pressed me as I observed them testify as individuals who were conscientiously endeavoring
to recount the events of May 6 as they remembered them Their testimony in the main
Is mutually corroborative but such minor discrepancies as exist between their respective
accounts as to chronology of incidents transpiring 5 months previous are those normally
to be anticipated from testimony not artificially contrived
AARON BROTHERS COMPANY OF CALIFORNIA 1085
inducement to an amicable settlement of the issue. The question remained unre-
solved and the meeting terminated .6
The issues remained unresolved, but on October 8, the Respondent offered rein-
statement to 9 of its 13 employees alleged in the complaint to have been unlaw-
fully laid off.7
3. The union authorization cards
In April 1964, employee Adolfo Dominguez contacted Theron Tison and there-
after an organizational campaign was conducted by the Union among Respondent's
employees. These organizational efforts did not, according to the stipulation of
the parties, come to the attention of Respondent or its agents, until Respondent's
receipt on May 6 of the Union's bargaining demand.
During the organizational campaign that ensued the Union caused to be circu-
lated among the employees of the Respondent authorization cards, which, by their
terms, provided that the signatory employee authorized Local 986 "to represent
[them] in negotiations for better wages, hours and working conditions." At the
hearing in this proceeding, the General Counsel introduced into evidence authori-
zation cards of 21 individuals who testified that they affixed their respective signa-
tures thereto free from threats, coercion, or inducement of any kind. Each of
these cards was dated on May 5, or prior thereto, ranging back in time to as early
as April 20, 1964. These cards were received in evidence without objection from
Respondent .8 Other cards were received in evidence as hereinafter discussed.
Melvin Howard testified credibly that he filled out and executed a union author-
ization card on April 24 under the assumption that "if we got a union in we would
get better wages and other better benefits." He testified that he was not subjected
to threats, coercion, or fear as an inducement to cause him to sign the card.
Toby Morgas testified credibly that 2 or 3 days prior to the discharge of em-
ployee Adolfo Dominguez, he signed a union authorization card while on his morn-
ing break at the plant. He asserted that by executing the card he intended to appoint
the Union as his representative. The card offered and received in evidence without
objection was undated. However, the evidence of record establishes that Adolfo
Dominguez was laid off on May 6.
Pedro Melnyk credibly testified that he signed a union authorization card in
order "that the union would be able to represent [the employees] for better work-
ing conditions and better conditions in the factory." He testified further that he
executed the card 3 to 5 days prior to the layoff of Ruben Salas, and that he
mistakenly placed his birthdate in the blank provided for the insertion of the exe-
cution date. The evidence of record establishes that Ruben Salas was laid off on
May 6.
Richard Juarez testified that he executed a union authorization card. The card
was undated and Juarez was unable to recall accurately the date upon which he
signed the card. However, employee Frank Reyna credibly testified that he sup-
plied Juarez with an authorization card, and that while he was unable to recall the
precise date of the card's execution by Juarez, he witnessed Juarez executing the
card on a date prior to the layoff of Adolfo Dominguez.
Robert Gomez credibly testified that he executed a union authorization card and
that he completed all of the blanks thereon, filling in the date merely as "May
1964." He testified further credibly that he executed the card prior to the layoff
of Adolfo Dominguez.
6 The foregoing is based upon a composite of the testimony of Theron Tison, John
Fretwell, and Marvin Griswold. I credit Tison and Griswold to the effect that the meeting
opened with a discussion of the Union's majority status and its desire to bargain collec-
tively with the Respondent. In the ultimate, Fretwell's testimony is not to the contrary.
I find fully credible Fretwell's testimony with respect to his discussion of the settlement
terms as proposed by the Regional Office, but additionally find upon an analysis of the
testimony of Tison and Griswold, which is mutually corroborative, that Griswold responded
in the manner found above.
7 The parties so stipulated. Those offered reinstatement were: James Scott, Ruben
Salas, Thome Daniels, J. Icochea, J. Perez, Edward Daniels, Melvin Howard, Leon
Grant, and Ciriaco Lopez.
8 The cards thus received were those of production and maintenance employees Billy
Ea ,l McDade, Ossie Vaughn, Henry A. Brown, James E. Scott, Leon Grant, Andrew
Pelles, William P. Robinson, Adolfo Dominguez, David B. Westengard, William Meunier,
Edward B. Mullins, Sanford J. Bordman, Val Giron, Eduardo Estrada, Frank F. Reyna,
Cariaco J. Lopez, Ric Franciosa . Ruben Salas, Jose H. Descalzi, Hyman Oawster, and
Thomas F. James.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank Renya credibly testified that he supplied employee Iciochea Perez (known
also as Ichiochea Perez Juarez ) with a union authorization card and that on the
same day Perez filled out and signed the card in Renya's presence . The card bears
a date of April 27, 1964, and Renya testified forthrightly and without contradiction
that the Perez card was executed by Perez prior to the layoff of Adolfo Dominguez.
With respect to the foregoing cards, each contains the initials of Theron Tison
who credibly testified that prior to May 5 , he received from employees Adolfo
Dominguez , Frank Renya, and Leon Grant completed authorization cards which
he had earlier supplied them in blank form.
The sum of the foregoing credited testimony convinces me of the authenticity
of these cards and reveals that they were executed prior to May 6 when the
Union's bargaining demand was received by the Respondent . Accordingly they
may be included in computing the Union 's majority status as of that date .9
Thomas V. Daniel, when called as a witness on behalf of the General Counsel,
identified his signature on a union authorization card shown to him , but testified
that he did not remember whether or not the card was the one signed by him.
However, he observed that it appeared to be a card which he remembered signing
"when a party of men were questioning people who were working [ at the plant]
about organizing some kind of a union ." When asked by the General
Counsel his reason for executing the card, Daniel testified that he felt he was "a
bit underpaid at the time and I understood they were going to take the matter
before the owner and question them about raises and organizing the place." He
further testified at the time , that to the best of his recollection , the date appearing
on the card was the date upon which he executed it. However, he testified further
that when he signed the card he did not know that it would give the Union author-
ity to "talk" for him . As I am convinced upon the foregoing evidence that the
authorization card offered in evidence by the General Counsel bears the authentic
signature of Daniel, and that it was executed on May 1, 1964 , the date shown on
the face of the card, and as I am further convinced that in executing the card
Daniel intended thereby to authorize the Union to take collective action looking
toward the betterment of his wages and working conditions, I find that the card
was a valid one and may be included in the computation of the Union 's alleged
majority status.10
Lewis Harper credibly testified that he executed a union authorization card
dated April 24, 1964. He testified that before executing the card he read it in its
entirety and that he felt that by affixing his signature he was thereby authorizing
the Union to represent him in the negotiations with Respondent. However, he
additionally testified that he felt his execution of the card did not impel him to
subsequently join the Union and felt that the execution of the card was a mere
prelude to a thorough exploration of the advantages of joining a union. I find that
Harper 's card may be included in the computation of the Union 's majority status:'1
Alex Rodel credibly testified that he executed a union authorization card on
May 4, 1964, that he did so voluntarily and for the purpose of securing better con-
ditions for himself and his coworkers. Additionally he testified that he executed
the card "to accompany his fellow workers in the card signing."
Adolfo Dominguez credibly testified that prior to his layoff on May 6 he pre-
sented an authorization card to employee Thomas F. Dickey who signed the card
in his presence. Dominguez testified that when Dickey returned the card to him
he noted that the card bore Dickey's signature, that he placed the card in his pocket,
and gave it to Union Representative Tison when next he saw him. Dominguez
was unable to recall the date on which he transmitted the card to Tison. Domin-
guez testified that after his discharge on May 6 he met the next day at the com-
pany coffee shop with Theron Tison. Unlike virtually all of the other cards
introduced into evidence by the General Counsel bearing dates prior to May 6,
1964, the card of Thomas Dickey did not bear the initials of Theron Tison on its
face.
Thomas Lambert testified credibly that he executed a union authorization card
bearing the date of May 6, 1964, and that he had previously executed an authori-
zation card but had erroneously printed his name in lieu of his 'signature on the
signature line. He further testified that no pressures or threats were directed against
him to induce him to execute the card and that he did so in order to obtain better
working conditions, better wages, and to authorize the Union to act on his behalf.
6 See I. Taitel & Son, a partnership , 119 NLRB 910, 911, footnote 3.
10 See Joy Silk Mills , Inc., 185 F. 2d 742, 743 (C.A.D.C. ), cert. denied 341 U.S. 914.
n Joy Silk Mills, supra.
AARON BROTHERS COMPANY OF CALIFORNIA 1087
Like that of Thomas Dickey, Lambert's card did not bear the initials of Theron
Tison.
In light of the credited testimony of Lambert that he had earlier executed an
authorization card on behalf of the Union, and as Lambert executed the second
card on the date on which the Union 's May 5 bargaining demand was received by
the Respondent, Lambert's execution of a second card may realistically be viewed
as a curative -act. However, as his card bears a May 6 date , it may in any event
be counted in computing the Union 's majority status as of the date of the Union's
bargaining demand was received by Respondent.
Similarly, as the evidence establishes that both Alex Rodel and Thomas Dickey
executed authorization cards prior to May 6 and by so doing authorized the Union
to act in their behalf with respect to collective -bargaining matters, their cards may
be properly included in the computation of the Union 's majority status.
Clara Stone, Edward Daniels, and Thomas Daniel each credibly testified that
they executed union authorization cards on July 9, 1964. Each had been in the
employ of Respondent prior to May 6, and Clara Stone and Edward Daniels were
both in Respondent 's employ on July 9 . On July 9, Thomas Daniel was in layoff
status but was subsequently recalled on July 27.
Each testified that the execution of their respective cards was his own voluntary
act, free from threats or coercion.
David Thompson and Emma Murray each testified credibly that they executed
union authorization cards on June 4 and July 12, respectively, and that they did
so of their own free will and while they were in Respondent 's employ.
As I find upon evidence previously detailed that, as contended by the General
Counsel , the Union on July 28 renewed its bargaining demand first made on May 6,
I find that the cards of Clara Stone, Edward Daniels, Thomas Daniels, David
Thompson, and Emma Murray may be considered in computing the Union's
majority status as of July 28.
The General Counsel introduced into evidence an authorization card which
Guillermo Santacruz testified credibly he had executed in the month of May 1964.
He further testified that he executed the card after the layoff of Adolfo Dominguez.
The card bears the date of April 24, 1964. In light of the testimony of Santacruz,
the General Counsel stipulated that the card was signed after May 6. In the cir-
cumstances, I find that the card was executed after the Union made its May 6
bargaining demand upon Respondent . However , I find that it, like the 5
last-mentioned cards, may be considered with respect to the Union's July 28
demand.
Robert `Kelsey testified that while in attendance at a union meeting he was prof-
fered a union authorization card which he executed. The date of execution is
shown on the face of the card as April 30, 1964. Kelsey credibly testified that
he had no particular interest in joining the Union but executed the card upon being
informed at the meeting that if he did not sign and the Union were successful in
organizing the Respondent's employees the cost of joining the Union would be
$50 in lieu of the $7 fee charged to those who signed up at the meeting. He testi-
fied further that in executing the authorization card he did not intend to authorize
the Union to represent him but that it was his belief that he would be provided
with further information so he could weigh the advantages and disadvantages of
belonging to the Union. Kelsey testified that beyond a pep talk designed to encour-
age membership in the Union , no other pressures were exerted against him and
he was not threatened or otherwise coerced. Kelsey further testified that some 2
or 3 weeks atter executing the card, he learned that the card had the effect of
authorizing the Union to represent him in the collective-bargaining matters but that
he took no action to withdraw or rescind his card.
Although I rejected the card of Robert Kelsey when it was offered at the hear-
ing by the General Counsel, I have carefully considered the record testimony of
Kelsey in context of controlling Board precedent by which I must be guided.
Kelsey impressed me as an intelligent witness who was fully aware of the printed
provisions of the card at the time he affixed his signature thereto. Precedent has
established the principle that,an employee's subjective thoughts as to his reason
for signing an authorization card, and his understanding of the card 's meaning,
may not negative the overt action of his having signed it.12 Similarly, the Board
has held that cards signed under inducement of avoiding an increased membership
12 Joy Silk Mills b. N.L.ll. B., supra.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fee may be properly counted in determining a union 's majority 13 Consistent with
these precedents I shall reverse my ruling rejecting the card of Robert Kelsey and
shall receive it in evidence Kelsey's card is thus included in the calculation of the
Union's majority both as of May 6 and July 28 14
Conclusions
The foregoing evidence reveals that on May 6 only 33 of Respondent's 66 pro-
duction and maintenance employees had signed authorization cards and that, as a
consequence, the Union had not been authorized by a majority of the employees
to represent them in collective bargaining Accordingly, the Respondent was under
no obligation to recognize and bargain with the Union on May 6 15
However, of the 40 employees in the unit on July 28, a majority or 26 of them,
had executed valid authorization cards As I have found that on July 28 the Union
through its representatives, Tison and Griswold, renewed its claim of majority status
and again requested Respondent to bargain with it, and as Fretwell's rejection of
this request was not grounded upon a good faith doubt of the Union s majority
status, I find that the General Counsel is quite correct in his contention that on
and after July 28 the Respondent refused to bargain collectively with the Union in
violation of the Act
The testimony of Fretwell, and of the Aaron brothers, reveal, quite clearly that
they were possessed of no information warranting a conclusion that the Union's
claim was inaccurate or unsupportable, and both Al and Len Aaron conceded that
they preferred not to deal with the Union In these circumstances and despite the
Unions May 5 offcr to submit to a card check, and its reassertion of its claim of
majority on July 28, the Respondent rests its defense, in part, upon a contention
that the Union had not proved its majority, that it "had no knowledge of the
majority," and that its good faith doubt was predicated upon the fact that the
Union had filed a representation petition with the Board This defense, in the
circumstances, is clearly deficient 18 Similarly, the pendency of the unfair labor
practice complaint on July 28 pi ovides no refuge for Respondent's refusal
B The alleged unlawful layoffs
1 The May 6 layoffs
During the afternoon of Wednesday, May 6, 11 employees in the production
department were mfoimed by Respondent's production manager, Claude Gandy,
that they were being laid off effective at the completion of that day's shift 17 Under
establisher practice, Respondent's pay periods ended on Wednesdays and the laid
off employees were given paychecks The employees laid oft were Ronald Collins,
Thomas Daniels, Edward Daniels, Adolfo Dominguez, Leon Grant, Melvin Howard,
Ciriaco Lopez, Jorge Perez, James Scott, Ruben Salas and Martha DeVore 18
is Economy Food Centeta, Inc , 142 NLRB 901 911-912 affd 333 F 2d 468 (CA 7)
14I perceive no prejudice to the Respondent in receiving Kelsey s card in evidence without
the benefit of a show cause order The matter was fully litigated at the hearing
15 Respondent 's Lxhibit 2 produced by Theron Tison at the request of Respondents
counsel is not of a qualitative nature sufficient to establish the number of individuals who
had signed authorization cards on May 6 But in any event if the duplication in the
name of Sanford Bordman is taken into account , the list contains only 33 names How
ever, its probative value is further diminished by the inclusion of the name of Guillermo
Santacruz who, the General Counsel stipulated , executed his card after May 6 More
over the names of Jorge Perez and Guillermo Arguedas , whose execution of cards was
not independently established were contained on the list It should further be observed
that the testimony of Theron Tison with respect to the precise number of cards possessed
on May 6 was concededly marl ed by conjecture
is United Butchers Abattoir Inc 123 NLRB 946 957
17 In addition an employee in the separate contract department was laid off but his
layoff is not encompassed within the issues of this bearing
18 The foregoing is based upon the credited testimony of Claude Gandy I do not
credit the testimony of Ruben Salas that in informing a group of the laid off employees
of their pending layoff Gandy stated ' something [ is] going on around here I just can t
explain " Rather, I credit Gandy s testimony that in informing the employees of their
impending layoff he stated In effect business [ was] down the general business
trend didn t look too good'
AARON BROTHERS COMPANY OF CALIFORNIA 1089
2 The causative factors to the layoff
During the early months of 1964 Len and Al Aaron became aware from the
reduced number of accumulated orders that business volume was running below
anticipated levels Additionally they were concerned over the indicia of impending
financial stress as shown by the level of bank balances, accruing ai..counts payable
and the ratio of payroll to production Len and Al Aaron conferred during the
months of February and March concerning the financial plight and decided to
reduce purchases in order to correct the level of accounts payable, to seek extended
credit terms from suppliers and to lay off personnel Some layoff, were made in
March but the financial stress continued 19 Accordingly, Al Aaron reported to his
brother, Len, that as a further measure he had been able to secure extended credit
terms from a major supplier and impressed him with the need to further reduce
the number of employees to conserve capital
3 The selection of personnel for layoff
On or about April 10, Len Aaron informed Gandy that economic considerations
would require the layoff of personnel in older to reduce labor cost In accord-
ance with Aaron's instructions, Gandy submitted a list containing the names of
17 employees to be considered foi layoff In his memorandum to Aaron incor-
porating the names, he suggested that the layoff be limited to no more than 10
employees and that the decision with respect to the selection and layoff be delayed
until after his impending vacation which commenced on April 17 and ended on
April 27
After his return from vacation, Gandy and Len Aaron had several conversa-
tions relating to the layoff of personnel, and on Friday, May 1, settled upon a list
of personnel to be laid off at the completion of the then current workweek Based
on this selection, Len Aaron desired to consult further with his brother, Al They
did so on Monday, May 4 In their discussion names only were discussed and the
list itself was not before them Al Aaron informed Len Aaron, in effect, that
while he was adamant concerning the economic necessity and urgency for a reduc-
tion in force, the decision with respect to the selection, as with other personnel
matters, was essentially Len Aaron s to make The May 1 roster of personnel to
be laid off was adopted as the final selection on May 6 and the names were sub
matted to Respondents payroll section for the preparation of final checks
While the ultimate composition of the layoff roster was still subject to revision
until the afternoon of May 6-as revealed by the testimony of Len Aaron as well
as by the testimony of Claude Gandy and Al Tobey, establishing th it Gandy solic-
ited from Tobey his evaluation of the work performance and work contribution of
two employees-I find that its composition was not in fact modified and the roster
of May 1 was that actually submitted to payroll Gandy testified credibly that the
list was not submitted to payroll until May 6 because conducive to calculating final
pay, management desired to determine if each employee slated for layoff reported
to work on Wednesday , May 6 20
Claude Gandy further testified credibly that within the confines of the instructions
given him by Len Aaron to effect a reduction in force, he endeavored to select
for layoff those employees whose work performance and work habits rendered
their retention less desirable than that of other employees While the record does
not reflect a comparative work analysis of the 66 employees comprising Respond-
ent's employee complement on May 6 and 8, Gandy testified credibly with respect
to the factors weighed by him in connection with the layoff of each of the 13 em-
ployees on May 6 and 8 , and his testimony reveals that the work performance of
each of the 13, as weighed by Gandy, was adversely tainted by such factors as
lack of punctuality , absenteeism , loafing, and with respect to one employee,
alcoholism , and with respect to Adolfo Dominguez, the habit of postponing
work in a manner necessitating his use of overtime hours at premium pay in
order to accomplish his job tasks
With respect to Adolfo Dominguez, the payroll records introduced into evi-
dence reveal that during the first four months of 1964, and until his layoff on
ie There were in March six terminations of production personnel and seven of sues
or clerical personnel However the reeord does not reveal which of these terminations
were voluntary and which were not However, I credit the testimony of Len Aaron to
the effect that some layoffs were made
'0 The foiefioing is predicated upon a synthesis of the credited testimon3 of Len Aaron
Claude Gandy, and Al Aaron
221-751-07-vol 158-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 6, 1964, he worked substantial periods of overtime. I credit the testimony
of Claude Gandy and of Al Tobey that Dominguez' habit of "manufacturing
overtime" had become a matter of concern to them and that they had each spoken
to him-Toby once and Gandy on two or three occasions-informing him to
curb the practice. Moreover, I credit Gandy's testimony that he had instructed
affected employees in the production department not to permit Dominguez to resort
to overtime work for the preparation of merchandise for shipment without the
specific approval of the production manager, but that such instructions had not been
obeyed.
With respect to Gandy's unrefuted and credible testimony regarding the job
performance and personal attributes of the other 10 employees laid off on May 6,
the payroll records introduced by the Respondent give little weight, pro or con,
but his evaluation is undisputed and uncontradicted.
The parties stipulated that Respondent had no knowledge of the union activity
of its employees until May 6, when it received the Union's demand for recognition
and bargaining. Gandy credibly testified that he had no knowledge of the identity
of employees active on behalf of the Union, and the record reveals no significant
basis warranting a conclusion that by May 6 any agent of Respondent had be-
come aware of the fact that Adolfo Dominguez, Leon Grant, and Frank Reyna
(who was not laid off) had taken an active part in circulating union authorization
cards and in acquiring employee signatures thereon. Neither is there significant
record foundation for the assumption which the General Counsel urges upon me,
that Adolfo Dominguez possessed either an inherent or assumed leadership status
among the employees. Although he was the senior employee in the three-man
shipping department and enjoyed a type of "leadman" or "in charge" status in
that department, actual indicia of leadership status are not revealed in the record
before me.
2. Other events of May 6
a. The Union's bargaining demand discussed
As found above, the Union's May 5 letter was placed on the desk of Al Aaron
soon after its receipt on May 6, but it did not receive his immediate detailed atten-
tion. As found, he scanned it and later directed the attention of Len Aaron to it.
Len Aaron read the letter between 1 and 2 p.m. on May 6. Len and Al Aaron
conversed together concerning the letter soon thereafter 21
b. The department heads meet
In the meantime, on the morning of May 6, shortly before the lunch hour,
Gandy informed Al Tobey, his assistant, that there was going to be a layoff of
personnel and invited Tobey's evaluation of employees under his jurisdiction. He
presented Tobey with no list and his inquiry was limited to only a few employees.
Soon thereafter, Gandy met with his department heads, including Tobey, and
informed them of the impending layoff. Receipt of the Union's May 5 letter
was not discussed, nor were other matters relating to the Union's organizational
effort mentioned.22
si A composite of the credited testimony of Al and Len Aaron.
^ The foregoing is predicated upon a composite of the credited testimony of Claude
Gandy and Al Tobey. I credit the testimony of Adolfo Dominguez that the meeting
transpired "about noon ." I further credit Al Tobey's testimony denying that on the
morning of May 6 he asked David Thompson , in effect, if a representative of the Union
had "been around ." In addition , in light of the frequency with which Gandy enters the
combined office of Len and Al Aaron in pursuit of his duties , and in light of the testimony
of Len and Al Aaron with respect to actions and the events contemporaneous to the
receipt of the Union 's letter on May 6, I find little significance in the testimony of Arlyne
Krueger, secretary to the Aaron brothers , that soon after receipt of the Union's letter
Gandy entered the office of his principals.
On the other hand , I find highly implausible the testimony of Claude Gandy that be
did not learn of the Union 's demand until the afternoon of May 8. While I find little
record support beyond conjecture that he had been apprised of the letter prior to the
May 6 layoffs , I doubt, in light of the nature of his duties as production manager dealing
in personnel matters , that the Aaron brothers would leave hint uninformed for 2 days
concerning the Union 's demand. In sum , I find that he had no knowledge of the Union's
demand at the time the May 6 layoff decision was made , as above found , but that he
learned of the demand soon after the Aaron brothers had consulted together in mid or
late afternoon concerning the letter.
AARON BROTHERS COMPANY OF CALIFORNIA 1091
c Al Aaron and Hyman Oawster confer
In mid-afternoon , at approximately 2 30 p in on May 6, Al Aaron invited
Hyman Oawster, an employee in the three -man shipping department , to confer
with him in the conference room The two met in the conference room and,
according to the composite of the credited testimony of the two participants, Al
Aaron expressed to Oawster his suspicion of something "going on" in the plant,
indicated the pendency of some employee layoffs, and asked him if he were capable
of doing Adolfo Dominguez ' job The conversation terminated on this note 23
I credit the testimony of Al Aaron to the effect that at the time of his conversa-
tion with Oawster he was conducting an investigation into the disappearance of
merchandise , that his suspicions as to the source of this disappearance, encompassed
personnel of the shipping department , that his reference to "goings on" in the
plant related solely to these disappearances and that his "suspicions were not with"
Oawster
Oawster credibly testified that soon after meeting with Al Aaron he informed
Dominguez that he would be laid off
d Al Tobey and David Thompson converse
Soon thereafter , at approximately 3 p m, employee David Thompson observed to
Al Tobey that "they are sure laying off a lot of people " Tobey replied, "You're
really going to be surprised " Thereafter, Adolfo Dominguez was laid off
3 The May 8 layoffs
a Hyman Oawster attends union meeting
The following evening, May 7, Hyman Oawster attended a union meeting at
which employees of the Respondent were present Theron Tison, a representative
of the Union, was also present and made an oral presentation urging the em-
ployees in attendance to join the Union In response thereto, Oawster arose and
said aloud , "Well, I'll be the first man to pay my dues" He did so in view of
the assembled employees Also in attendance at the meeting on May 7 was
employee Bill Robinson
b The layoff effected
The following morning Oawster reported for work and in the late afternoon,
shortly before the end of the day's shift, Claude Gandy circulated among the
employees and, as was the custom , handed paychecks to the employees He by-
passed Oawster and Bill Robinson At the end of the shift, Robinson and
Oawster went to Gandy's office Gandy handed Robinson his check and said
nothing to him , but to Oawster, Gandy said, `You are going to be laid off and
you can go on your vacation now " He handed Oawster paychecks which included
payment for accrued vacation time 24
In explanation of Oawster's discharge , Gandy credibly testified that Oawster was
seriously deficient in his capacity to perform the routine routing functions of his
job and that he gave additional weight to a hearsay report to which he gave
credence that Oawster had been receiving tips from customers for work performed
during company time
After his layoff, Hyman Oawster sought reinstatement on several occasions but
was not reinstated The duties and responsibilities of the shipping department,
after the layoff of Oawster and Dominguez , were performed by employee Bill
Robinson , an employee junior in point of service to either Oawster or Dominguez,
but one who in the evaluation of Gandy as well as Oawster was a good employee
Subsequently another employee , Al Doran, was transferred to the shipping depart-
ment to assist Robinson Doran had had previous shipping department experience
With respect to the May 7 union meeting and Oawster s activities there, employee
David Thompson testified credibly that as he was leaving work on May 7, he made
an unsolicited , casual statement to Al Tobey to the effect that he was going that
" I credit Al Aaron 's denial of Hyman Oawster s testimony that on the occasion of this
conversation that Aaron offered Oawster the use of a bicycle The bicycle in question
belonged to one of Aaron's children and had previously been the topic of some con% ersn
tions between Aaron and Oawstei resulting from Oawster s request to boi row the bicycle
for the use of one of his children
Si The foregoing is based upon the uncontradicted credited testimony of Hyman Oawster
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evening to a union meeting. Al Tobey credibly denied that on May 8 or subse-
quent thereto, Thompson made any further reference to the union meeting of
May 7 or informed him in any manner concerning the proceedings at that
meeting. David Thompson credibly testified that he at no time informed any
agent of the Respondent the identity of any individual who had signed authoriza-
tion cards with the Union.
However, Thompson credibly testified that on May 11 he asked Al Tobey why
Oawster had been laid off. Tobey answered in a joking manner that "may be he
was passing out union cards or something." Thompson additionally testified that
by May 11' it had become general knowledge throughout the plant that employees
had executed union authorization cards.
c. The Respondent's economic defense examined
At its principal place of business at 960 North LaBrea Avenue, Los Angeles,
Respondent is engaged primarily in the manufacture of picture frames and in buy-
ing and selling paintings and frames. Original oil paintings of domestic and foreign
artists are purchased as are prints. Al Aaron is charged with the principal respon-
sibility for purchasing the oil paintings and prints sold by Respondent, and his
primary area of responsibility extends to the incidental duties relating to the
oversight and direction of purchasing and sales. On the other hand, the duties
of Len Aaron extend to the management of Respondent's eight wholly owned
retail outlets and to the direction of personnel matters relating to these establish-
ments. In these duties he is assisted principally by Claude Gandy.
The production enterprises here involved and each of the eight retail stores are
treated as separate accounting entities. Each enterprise has a separate bank account
and it is the practice of the production entity to draw funds from the separate
accounts of the eight retail establishments only to the extent of the accounts
receivable due the production entity by the retail establishments.
In conjunction with the production phase of its operation-the only phase
involved in this proceeding-Respondent maintains an, account at the City National
Bank from which funds are withdrawn for payroll purposes and other operating
.expenses, and also maintains an account with the Bank of America at which is
kept a small balance derived from proceeds of Bank of America credit card sales.
During the first 5 months of 1964, the following month-end balances are reflected
in Respondent's books:
February
$30,809.25January-------
- - ------- ----------- ------________________________________- 20,790.00 (overdrawn)
March___________________________________ 21,355.71 (overdrawn)
April_______ 38,962.48 (overdrawn)
May ------------------------------------- 20,946.38 (overdrawn)
Additionally, the records of the Company reveal that the Respondent had over-
drawn its balance at the City National Bank as follows on the indicated days in May:
May I----------------------------------------------- $39,'789.20
May 2----------------------------------------------- 42,242.87
May 8----------------------------------------------- 48,013.98
The records of the Company further reveal that in the first five months of 1963
,the Respondent had overdrafts in the months of February, April, and May but had
funds in its accounts in January of 1963 totaling $19,519.25 and in March,
$30,038.76.25
zs All of the foregoing is predicated upon the credited testimony of Betty Turner, ,Re-
spondent's bookkeeper. She testified credibly that overdrafts had not been uncommon
during her 18 months of employment with Respondent. In finding that Respondent
had funds to its credit in the months of January and March 1963, I am relying upon her
testimony on direct examination . Her testimony on cross-examination was, it appears,
seemingly unintentionally contradictory of her testimony on direct examination. On
direct examination she was very explicit that the March 1963 balance was not an overdraft
I have considered Respondent's failure to recall as a witness on its behalf Donald
Wyre, assistant cashier of the City National Bank where Respondent maintains its prin-
cipal account. Wyre appeared under subpena of the Respondent and testified briefly. He
was excused to be recalled, at Respondent's discretion, to testify concerning the extent of
Respondent's overdrafts. He was not recalled. Although I have considered this factor
in evaluating the weight to be accorded the evidence adduced by the Respondent with
AARON BROTHERS COMPANY OF CALIFORNIA 1093
Additionally, Respondent's records reveal that during the first 4 months of its
fiscal year of 1963 and 1964, respectively, the Respondent had the following cumu-
lative sales volume
1964 1963
February $216 906 00 $129 0b6 00
March 284 679 00 293,098 00
April 450 390 00 478 371 00
May 592 255 00 661 9'2 00
Production Manager Claude Gandy testified credibly that the sale of prints and
oils during the first 5 months of 1964 substantially exceeded these items during a
like period in 1963 Supporting data was introduced in evidence Gandy testified
credibly that the handling of prints entailed no increased duties or responsibilities
on behalf of the production employees and that increased production labor with
respect to the oils was "infinitesimal," was limited to the framing and packaging
of approximately 15 percent of the total number of oils sold and did not require
services of additional personnel
The supporting data introduced by Respondent revealed that sales of oil paint-
ings to principal customers in 1963 amounted to $2,185 65 while during a like
period in 1964 sales totaled $20,838
Additionally, the Respondent's evidence revealed that during the first 5 months
of 1963 dollar volume of prints sold to principal customers totaled $1,760 35 while
during the first 5 months of 1964 they totaled $7,662 73
Len Aaron testified credibly that during the month of April and early May he
received approximately five telephone calls from representatives of the City
National Bank which in his judgment rendered urgent the necessity for further
reduction in force He further testified that approximately at this point in time
he borrowed additional funds at high interest rates and that further, by subse-
quently eliminating a two man department, he retired the fourth floor of Respond-
ent s five-story, 960 North La Brea Street building from production use, facilitat-
ing the lease of the two top floors of the building
It is the contention of the Respondent that the layoffs that occurred on May 6
and 8 were the result solely of these economic decisions and stresses
Conclusions
The General Counsel contends , in effect , citing Majestic Molded Products, Inc
v N L R B , 330 F 2d 603 (C A 2), that the layoffs of May 6 and 8 were power
displays" undertaken immediately after receipt of the Union's bargaining demand to
discourage the employees in their organizational efforts
I do not find that the record supports the General Counsel 's thesis with respect to
the layoffs There was, to be sure, a suspicious proximity in timing between the
receipt of the Union 's letter and the layoff of a large contingent of pc rsonnel But
a mere suspicious circumstance is not sufficient to carry the burden of persuasion
The General Counsel 's case suffers, in the first instance , by the void of evidence
relating to knowledge on the part of Respondent of the union activity or affinity of
any of those employees selected for layoff There is no basis here for assuming
that in making the layoff selections Respondent had insight into such affinity of any
of those selected , so that beyond a mere reliance on the probabilities of random
selection , here-analogizing Majestic Mold Products-Respondent would have no
way of being assured that included in the layoff were "black sheep" as well as the
more preferred variety
respect to its bank balances in the absence of any evidence casting siisp[cion upon the
accuracy or authenticity of the books and supporting records produced at the hearing by
Respondent and used by Miss Turner in support of her testimony I find no warrant for
refusing to credit Turner' s testimony Moreover there can be no doubt that Respondent
viewed the bank balances as reflected in its own books as a reliable indicia of its actual
balances and was guided in its actions by what was revealed by its books In the cir
cumstances I am not able , as the General Counsel suggests to indulge the presumption
that Respondents failure to recall Wyre to testify was occasioned by its knowledge that
the records of the bank would not support Respondents contention
1094 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
But the General Counsel 's case suffers - from a more fundamental deficiency.
Upon my observation of them over the 4 days of the hearing , and specifically, as
they testified at the hearing, I gained the strong impression that Al and Len Aaron
were individuals not overly sophisticated in dealing with labor organizations and
held no strong aversion to unionization . They testified quite candidly with respect
to their economically based preference for a nonunion work force and in like man-
ner through the balance of their testimony endeavored to testify truthfully, I am
convinced , within the limits of their actual recollections.
As against the general observations of the General Counsel 's witnesses with
respect to accumulated work to be performed at the time of the May layoffs, which
testimony I have considered , Al and Len Aaron testified convincingly that the press
of economics led to an early search for financial relief , and I find upon the basis
of this testimony that a layoff of the magnitude eventually on May 6 and 8 accom-
plished had been contemplated and would have resulted whether or not the Union
had acted on May 5 . I am further convinced , as found above , that while still sub-
ject to modification as late as noon on May 6, the layoff roster as decided upon
before the Union 's letter was received , was not in fact altered after receipt of the
letter.
I have evaluated the evidence revealing that Claude Gandy and Al and Len
Aaron had kept their own counsel with respect to the pending layoffs, excluding
from their deliberations , until the morning of the layoff, Al Tobey and the other
department heads. However, Gandy's intimate knowledge of the personnel, the
long period of deliberation during which the selections were given consideration
and the understandable desire of Respondent to minimize the disrupting effects
upon production of a premature rumor of impending layoff , outweigh , in my opin-
ion, the thrust- of the General Counsel 's evidence in this respect . Likewise, in view
of the credited testimony of Al and Len Aaron and of Claude Gandy with respect
to the evolutionary period leading to the layoff decision , including the Respond-
ent's judgment with respect to the financial urgency of a reduction in force, I find
that the date chosen for the principal layoff, May 6 , the terminal date of the cur-
rent pay period , strongly counters the General Counsel 's underlying thesis that the
layoffs were made precipitiously , without reflection , as a show of force to combat
the Union.
Moreover , Respondent adduced persuasive evidence of economic justification.
The critical issue in this respect , of course , is not the number of orders on hand as
of May 6, but relates rather to the bona fides of Respondent 's assertion that the
layoffs were dictated solely by accumulated financial stresses and nondeferrable
demands upon its cash reserves.
It is thus apparent that sales figures alone are not sufficient criteria , but, rather,
constitute but one factor to be viewed in conjunction with all others serving as a
barometer of Respondent 's financial status. Thus, in addition to Respondent's evi-
dence establishing that in May 1964 cumulative sales were lagging some $ 69,600
behind those for the same period in 1963, the undisputed evidence reveals that dur-
ing the critical period Respondent had made two sizable loans at high interest rates
to support operations of its production facility and was being pressed as never
before to take - corrective actions with respect to overdrafts . In this regard , I accept
as factual the credible testimony of Al Aaron to the effect that during the critical
period prior to the layoffs, little in the way of untapped funds existed in the
accounts of the wholly owned retail stores from which the Respondent could draw.
Moreover , the suggestion in the record that Respondent had in 1964 opened an
additional retail establishment , serves not, it would seem , to undercut the essen-
tial validity of its basic economic contention but seems,, rather , to augment it, ren-
dering more urgent from the standpoint of the composite operation of Aaron
brothers the necessity of austerity at the production level.
Nor is the General Counsel 's case strengthened by evidence revealing that in
May, prior to the layoffs , Respondent 's total employee complement exceeded that of
a similar period in the two prior years, 1962 and 1963 . When viewed against sales
figures-reduced in total notwithstanding they were augmented by 'sales of prints
and oils requiring little production work-these , figures would seem . to lend some
support to the bona fide nature of Respondent 's layoff decision.,
In sum , Respondent's dilemma was one of reduced sales , precarious financial
balance with its principal bank and important credit source , and expanded high
interest indebtedness . In the circumstances ,, I am convinced from the record as a
whole that the layoffs of May 6 and 8 were dictated solely by. financial stress and
were taken to achieve , a reduction in total payroll - and not for the purpose , even in
part, of defeating the organizational efforts of its employees.
AARON BROTHERS COMPANY OF CALIFORNIA 1095
In reaching the above decision I have carefully considered the occurrences and
circumstances preceding the layoff of Hyman Oawster and Thomas Dickey on May 8.
With respect to Oawster, Claude Gandy, who, as the record reveals, had sub-
stantial, ultimate authority in personnel matters, testified that his evaluation of
Oawster's capacities as a master of all shipping department skills was not high, and
there is little significant challenge of record disputing the correctness of Gandy's
judgment. However, he, like Thomas Dickey, was not laid off with the other 11
employees on May 6, on Wednesday, at the end of a pay period, but was retained
2 additional days until the end of the workweek on Friday, May 8. Moreover,
just 2 days earlier, Al Aaron, in conjunction with his investigation as found above,
had questioned him with respect to his capacity to perform the shipping department
duties of Adolfo Dominguez , and, in the interim , at the May 7 meeting of the Union,
Oawster had taken the lead among employees in joining the Union.
Upon consideration of these facts , and taking into account (a) the absence of any
evidence revealing Respondent's knowledge of Oawster's May 7 display of union
allegiance ; (b) the evidence revealing that Oawster , like Dickey , terminated with
him, was originally tentatively scheduled for termination together with the other 11;
(c) Gandy's evaluation of the capacity of Bill Robinson , the successor to Domin-
guez and Oawster, to perform the shipping department functions ; (d) the passive
role played by Al Aaron in Respondent's personnel matters, as well as his para-
mount purpose (support of his investigation ) in conferring with Oawster which
renders plausible and explainable his query of Oawster 's work capacities in the face
of his subsequent layoff by Claude Gandy; and (e) the principal role of Gandy in
the decision to terminate Oawster within the confines of his earlier agreement with
Len Aaron , I find that the evidence of the General Counsel in support of the com-
plaint's allegation respecting Hyman Oawster does not preponderate.
In like vein, as Thomas Dickey was among those earlier designated for layoff; as
Gandy's evaluation of his deficiencies as an employee has record support ; and con-
sidering also the findings made with respect to the layoffs of May 6, which are here
equally applicable, I shall recommend dismissal of the complaint with respect to
Thomas F. Dickey.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in con-
nection with the operations of the Respondent described 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that 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.
It will be recommended that the Respondent, upon request , bargain collectively
with Miscellaneous Warehousemen , Drivers & Helpers, Local 986 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen aid Helpers of America, as
the exclusive bargaining representative of the employees in the appropriate unit
hereinafter described and, in the event an understanding is reached , embody such
understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Miscellaneous Warehousemen, Drivers & Helpers, Local 986, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a
labor organiz^..on within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed by Aaron Brothers Com-
pany of California, including shipping and receiving employees , warehousemen and
truckdrivers, excluding all office clerical employees , guards, professional employees,
and supervisors as defined in the National Labor Relations Act, as amended, con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
1096 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
4. On July 28, 1964, and at all times thereafter, the Union was, and has been,
the exclusive bargaining representative of all employees in the aforesaid unit for
the purposes of collective bargaining.
5. By failing and refusing at all times since July 28, 1964, to bargain with the
Union as the exclusive bargaining representative of the employees in the
above-described appropriate unit, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. The Respondent has not engaged in conduct violative of Section 8(a)(3)
and (1) of the Act as alleged in the complaint with respect to the layoff of
employees on May 6 and 8, 1964.
[Recommended Order omitted from publication.]
Fox Midwest Theatres , Inc. and International Alliance of Theatri-
cal, Stage Employees and Moving Picture Machine Operators
of the United States and Canada , Local No. 206 , AFL-CIO.
Case No. 17-CA-9d547. May 25,1966
DECISION AND ORDER
On July 8, 1965, Trial Examiner David London issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
rccommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Charging Party filed exceptions to the Trial
Examiner's Decision and a supporting brief. The Respondent filed
an answering brief. The General Counsel did not file exceptions or
a brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Trial Examiner's findings, con-
clusions, and recommendations.
[The Board adopted the Trial Examiner's Recommended Order.] i
CHAIRMAN MCCur LOCH, concurring :
The record shows that employees Winburn and Bowman were dis-
charged as a result of Respondent's termination of its agreement
i Amend the address given at the bottom of the notice attached to the Trial Examiner's
Decision to read: 610 Federal Building , 601 East 12th Street , Kansas City, Missouri
64106, Telephone No. FR4-5282.
158 NLRB No. 106.