Bernel Foam Products Co., Inc.

National Labor Relations Board - Board Decisions

May 4, 1964

146 N.L.R.B. 1277 (N.L.R.B. 1964)

BERNEL FOAM PRODUCTS CO., INC. 1277
3 further recommend the dismissal of the complaint insofar as it alleges Respond-
ent violated the Act by: ( a) the conduct set forth in paragraph 4(d) and (b) the
conduct set forth in paragraph 8(a).
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
we are posting this notice to inform our employees of the rights guaranteed them
by the National Labor Relations Act:
WE WILL NOT interrogate any of our employees concerning their union
activities in a manner constituting interference , restraint , or coercion in viola-
tion of Section 8 ( a) (1) of the Act.
WE WILL NOT threaten our employees with loss of overtime , loss of paid
holidays and vacations , lower wages , loss of employment , and closing the plant
if the employees select the Union as their bargaining representative ; threaten our
employees with discharge for union activities ; threaten our employees by stating
that they will be unable to obtain other employment in the area if they are
discharged for union activities ; threaten union representatives in. the presence
of employees with violence or adopt and ratify such threats ; threaten to send
employees home when they run out of work rather than reassign them to other
work if they select the Union as bargaining representative ; permit our employees
to circulate an antiunion petition during working hours; assist in the preparation
of newspaper editions containing threats of economic reprisal including closing
the plant if employees selected the Union as their bargaining representative; or
adopt and ratify threats to close the plant contained in the newspaper editions.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in any
union activities.
All our employees are free to become or remain members of Internationl Union,
United Automobile , Aerospace and Agricultural Implement Workers of America,
AFL-CIO, or any other union ,' and they are also free to refrain from joining any
union.
MONROE AUTO EQUIPMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and it 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. Baltimore
1-7000 . Extension 731, if they have any questions concerning this notice or compli-
ance with its provisions.
Bernel Foam Products Co., Inc. and Textile Workers Union of
America, AFL-CIO, Charging Party. Case No. 3-CA-1995.
May 4, 1964
DECISION AND ORDER
On September 16, 1963, Trial Examiner Sidney D. Goldberg issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and recom-
146 NLRB No. 161.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mended dismissal as to them. Thereafter, the General Comisel and
the Charging Party filed exceptions to the, Trial Examiner's Decision
and supporting briefs.
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 Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this case, and finds-merit in the exceptions of the General Counsel and
the Charging Party. We therefore adopt the Trial Examiner's find-
ings, conclusions, and recommendations only to the extent consistent
with this Decision and Order.
1. The Trial Examiner found, and we agree, that Respondent. inter-
fered with and coerced its employees in violation of Section 8(a) (1)
of the Act by its statements to employees on November 30 and Decem-
ber 3, the day of the election, promising a job classification system
and other benefits and suggesting to employees that they form a shop
committee or shop union. We also agree, for the reasons stated by
the Trial Examiner, that Respondent's president, Bernel, did not vio-
late Section 8(a) (1) by asking employee Lesanti if he knew anything
about the Union or by attending a union meeting with the consent of
the Union.
2. The Trial Examiner also found that but for the Aiello rule,' the
Respondent would have violated Section 8(a) (5) of the Act. The
critical facts are as follows : Bernel Foam Products Co., Inc., the
Respondent herein, is engaged in the manufacture of foam, plastic,
and rubber articles in Buffalo, New York. Early in November 1962,
the Textile Workers Union, the Charging Union herein, began orga-
nizing Respondent's employees. By November 12, the Union had ob-
tained authorization cards from 53 of Respondent's 88 production and
maintenance employees. On November 12, Ryan, the union repre-
sentative, telephoned Respondent's president, Berne], and requested
recognition. When Bernel stated that he did not believe that Ryan
had authorization cards from a majority of employees, Ryan sug-
gested that the cards be turned over to a clergyman for verification.
Bernel refused. Later the same day, Bernel approached veteran em-
ployee Lesanti and told him of the Union's call. Lesanti stated that
if the Union claimed it had a majority of cards, it was the truth. At
a union meeting held the following day and attended by Bernel, Ryan
again asked Bernel to recognize the Union; Bernel again refused,
stating that he would not recognize the Union until it was certified
following a Board-conducted election. On November 15, the Union
filed a petition for an election which was thereafter scheduled for
Monday, December 3.2 On Friday, November 30, the last working
1 Louis Aiello, et al., Co-Partners, d/b/a Aiello Dairy Farms, 110 NLRB 1365.
The representation proceeding is Case No. 3-RC-3005.
BERNEL FOAM PRODUCTS CO., ' INC. 12791
clay before the election , Berne] met with the day- and night-shift em-,
ployees. He stated that job classification "was being worked ' on" and
that ' employees were "going to get it [the job classification system]";
that employees "would get Blue Cross, Blue Shield and other bene-
fits, union or no union, eventually " ; and that employees could have
a "shop committee or a shop union ." On December 3, the day of the
election , respondent circulated leaflets promising , inter alia, that job
classification would be put into effect as soon as possible . The Union
did not learn of the November 30 meeting until shortly before the
election and did not become aware of the contents of the leaflets until
after the election . The Union lost the election by a vote of 53 to 34.
On December 10 it filed objections to the election and on December 12'
it filed the instant charges. On January 31, 1963, the Regional Di -
rector set the election aside on the basis of the Union's objections and
directed a new election .' No new election has been held.
The Trial Examiner , applying the Aiello rule , concluded that, as
the Union chose to participate in the election knowing of the facts
relating to the Respondent 's refusal to bargain with it, it could not,
subsequent to the election , file charges under Section 8(a) (5) based
upon the employer 's preelection conduct. We have reevaluated the
merit of this rule taking into account all pertinent considerations
including those upon which the rule was based and the experience
gained in its application . As a result, we have decided that the Aiello
rule which was itself a departure from well -established prior Board
precedent ,' does not serve to effectuate the policies of the Act. Our
view is predicated on the compelling considerations hereinafter set
forth.
In reaching its conclusion in Aiello that, since the union had pro-
ceeded to an election and lost , it could no longer assert its majority
status by filing an 8(a) (5) charge , the Board relied basically on two,
considerations which we are persuaded are not grounded in logic or
upon a proper interpretation of the policies of the Act. The reasons
given were that the union would thereby be (1) pursuing inconsistent
procedures in seeking to prove its majority, and ( 2) circumventing
Board policy against holding elections while 8(a) (5) charges are
pending thus causing expenditure of public funds in useless and
repetitive procedures.
With respect to the first basis, we would point out that, although
both procedures may be available to the union in given circumstances
and may have as a common element establishment of a union 's majority
S The Board 's original rule was first stated in The M. H. Davidson Company, 94 NLRB
142 (Member Murdock dissenting ). The Davidson decision was reaffirmed by the Board
and the courts on numerous occasions . See, for example , Howell Chevrolet Company,
95 NLRB 410, enfd . 204 F. 2d 79 (C.A. 9) ; Model Mill Company , Inc., 103 NLRB 1527,
enfd . 210 F. 2d 829 ( C.A. 6) ; Southeastern Rubber Mfg . Co., inc., 106 NLRB 989, enfd.
213 F . 2d 11 (C.A. 5).
744-670-65-vol. 146-82
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status as employee representative, the unfair labor practice and the
representation proceedings are' not inconsistent. The latter may es-
tablish the union's majority as of the day of the election, but it does
not resolve the union's majority status on the date demand for recog-
nition and bargaining was made and refused-which is the determina-
tion made in the former proceeding. Neither are they grounded in
contradictory assertions of fact. In situations where both procedures
are available, it is the refusal to bargain which generates initiation of
the election procedure. And, although in filing a representation peti-.
tion the union asserts as a formal matter that a question concerning
representation exists, as a practical matter, the union has not altered
its position that it represents the. employees and is entitled to recogni-
tion. Rather it is stating the employer's assertion of such a question
and seeking an election as a means of proving that there is no validity
in that assertion. As these are not inconsistent procedures, there is
no basis for applying such a concept of election of remedies as was
established in Aiello.
Moreover, the so-called choice which the union is forced to make
under Aiello between going to an election or filing an 8 (a) (5) charge
is at best a Hobson's choice. Although an election is a relatively swift
and inexpensive way for the union to put the force of law behind its
majority status, the procedure is highly uncertain entailing the real
possibility that because of conduct by the employer no, fair election
will be held. That this danger is not imaginary is amply- demon
strated by the fact that in both Aiello and the instant case, as in many
similar cases, the election was set aside on the basis of the employer's
unlawful conduct. On the other hand, although in pursuing n
8(a) (5) charge a union does not risk the effect upon its majority o
later, unlawful conduct on the part of the employer, such a proceeding
is considerably more complicated, consumes more time during which
employees are denied the representation they desire, and. involves
greater expense. Since this difficult and rather dubious "choice" is
created by the employer's unlawful conduct, there is no warrant for
imposing upon the union which represents the employees an irrev-
ocable option as to the method it will pursue in seeking vindication
of the employees' representation rights while permitting. the. offend-
ing party to enjoy at the expense of public policy the fruits .of such
unlawful conduct. The fact that in an election a vote favorable to
the union may obviate for it the necessity for pursuing the unfair
labor practice route does not, in our view, warrant requiring that the
union forfeit the right to request that the effect upon it of the em-
ployer's unlawful conduct be rectified when it develops that such con-
duct has been sufficiently onerous to interfere with the election and to
cause a substantial deterioration in the union's'status.
I
BERNEL FOAM PRODUCTS CO., INC. 1281
In addition, where the conduct engaged in is found to be of a type
which makes a fair election impossible the election is set aside and re-
garded- as a nullity. There is absolutely no basis for holding the
-participating union alone bound by an election which has been declared
a nullity. Either the election is not a nullity or the union is not bound
thereby. To hold, as our dissenting colleague would, that by partici-
pating initially in an ultimately void election the union irrevocably
committe itself to the representation proceeding and, therefore, may
seek a' remedy only in another election, overlooks the fact that an
election is not a remedy either in statutory concept or in reality. On
the contrary, experience has demonstrated that a vast majority of the
rerun elections' results favor , the party which interfered. with the
original election.. This clearly demonstrates the lingering effect of
unacceptable electioneering conduct. Thus, in a majority of the cases
another election can hardly be said to be an adequate remedy for the
employer's unlawful refusal to recognize the employees' designated
majority representative which was followed by conduct which inter-
ferRd with the employees' freedom of choice. To ignore such conduct,
as the Aiello doctrine of option and waiver does, is incompatible with
the statutory mandate. Indeed, it lends the Board's procedures as
alool to thwart the statutory rights of the majority of the employees
involved and subverts the very purpose of the Act. It is to be hoped
that an approach -which denies an employer any benefit from its un-
lawful refusal to bargain will remove the motive for demanding un-
necessary-elections and diminish efforts to undermine the will of the
employees by interfering with their freedom of choice.
•'-'As to (2); we do not find persuasive the reasoning that the Aiello
rule is justified on-the grounds that'to hold otherwise would permit
the union to: abuse the Board's processes.by causing it to "expend
time and public funds in useless and repetitive proceedings." Al-
though we are in agreement that "useless and repetitive proceedings"
are to be avoided, we do not agree that prosecution of an 8(a) (5)
charge in such circumstances is either useless or repetitive. Further,
considerations of economy; in our view, must be subordinated to the
overriding policies of the Act. Indeed, it may well be that the num-
ber of'8(a) (5) proceedings which may be obviated by the union pro-
ceeding to the election and winning, rather than withdrawing its
petition by reason of the Aiello rule, will prove to be the real economic
advantage. Moreover, responsibility for any extended litigation re-
quired is not that of the union which was willing to go to a free elec-
tion but falls upon the respondent, since it was the respondent's un-
lawful conduct in refusing to recognize the union initially, followed
by its further conduct in interfering with the election, that made the
entire proceeding necessary. We would thus be punishing the
wronged party for the misdeeds of the wrongdoer, were we to prevent
1282 DECISIONS OF..NATIONAL LABOR :RELATIONS BOARD
the union from instituting'8 (a) (5) proceedings in order. to remedy the
respondent's unfair labor practices. Nor do we see in such procedure
a circumvention of Board policy against conducting elections in the
face of pending 8(a) (5) charges... We will not force a union to an
election to avoid the unfair'labor practice procedure, but see.no cause
to forbid a union to proceed in that manner.
In the last analysis, the Aiello rule seems to be predicated on the
erroneous legal premise that the statutory obligation of an employer to
bargain collectively with a union representing a majority of its em-
ployees is subject to waiver by a union. This view was adequately
refuted by'the United States Court of Appeals for the Fifth Circuit,
in' Southeastern Rubber Mfg. Co., Inc.,4 a case decided under the
Davidson- rule, where it said:
This Court has recently held that "the statutory requirement of
good faith bargaining is not subject to waiver through action or
inaction of parties to a labor controversy", for the Board's duty
to enforce the public policy underlying the Act transcends pri-
vate rights and ordinary principles of contract law.5
Our dissenting colleague argues that the Aiello rule is a "fundamen-
tally fair approach" because "once having made its choice, the union
must stick to it." This view, in our opinion, relegates the Board to
the role of a detached observer in a game being played between a union
and an employer. If this, indeed, were the Board's function, we.
might agree that the Union, having lost the election, could not fairly
charge that it had won the game. However, a proceeding under Sec-
tion 8 (a) (5) of the Act is not a game. The Board is not . a spectator.
The interests of union and employer are not solely involved- in this
labor dispute. The overriding consideration with which Congress
was concerned in this section of the Act was. the right of employees
to be represented, if they so desired, by a labor organization of their
own choosing. So far as these employees are concerned, it was not the
conduct of the Union, but, as our dissenting colleague concedes, that.
of the Employer which thwarted their statutory right to be repre-
sented for the purposes of collective bargaining. It is the respon-
sibility of the Board, not the Union, to remedy this unfair labor prac-
tice. While the Union may have erred in believing that it could win
representation rights through an election, that election cannot mitigate,
nor is it a remedy for, conduct which precludes a fair election and
which, in fact, is a violation by this Employer of its statutory obliga-
213 F. 2d 11, 15.
5 See The Great Atlantic and Pacific Tea Company, 101 NLRB 1118, where the Board,
in a situation analogous to Aiello, held that a party would not be estopped from filing
objections to an election, even though it knew of the activity on which the'objections are
based prior to the election and neither filed charges nor otherwise protested. The Board
there rejected the application of the estoppel rule on the ground that its retention would
not effectuate the policies of the Act.
BERNEL FOAM PRODUCTS CO., INC. 1283
tion to bargain under Section 8(a) (5) of the Act. We cannot agree
that the basic question presented here is one of "balancing the scales"
either toward the union or employer. Rather, the issue is one of pro-
viding an adequate remedy for conduct which has been specifically
proscribed by Congress.
In view of the foregoing, the Aiello decision and subsequent decisions
to the same effect are hereby overruled.'
3. The Trial Examiner concluded, and we agree , that Respondent's
conduct constituted a refusal to bargain with the Union in violation of
Section 8(a) (5) of the Act under the Board's decision in Snow &
Sons.' In that case, the Board held that where an employer entertains
no reasonable doubt either with respect to the appropriateness of the
proposed unit or the union's representative status and seeks a Board-
directed election without a valid ground therefor, he has failed to ful-
fill the bargaining requirements under the Act and thereby violates
8(a) (5), even though the employer did not embark upon a program
of interference to dissipate the union's majority. In the instant case,
since the Respondent had no reason to doubt the Union's claim that it
represented a majority of Respondent's employees and, in fact, refused
a card check by an impartial person, the Trial Examiner concluded
that its insistence that the Union prove its majority status only
through a Board election would have violated Section 8 (a) (5) of the
Act.
The Trial Examiner rejected, however, the General Counsel's con-
tention that the Respondent's conduct also violated Section 8 (a) (5)
of the Act under the Board's decision in Joy Silk." There, the Board
held that an employer violates Section 8(a) (5) where it insists on a
Board election as proof of the union's majority and such insistance is
motivated not by any bona fide doubt as to the union's majority, but
rather by a rejection of the collective-bargaining principle or by a de-
sire to gain time within which to undermine the union. The Board, in
Joy Silk, indicated that it would decide whether an employer who re-
fuses to recognize the union and insists upon an election is motivated by
good faith in the light of all the relevant facts of the case including
the other unlawful conduct of the employer, and the sequence of
event°.
In disagreement with the Trial Examiner, we find that Respondent's
refusal to bargain with the Union was motivated by a desire to create
e while Aiello indicated that there might be "peculiar facts" justifying an exception to
the applicability of that rule , precedent has not clearly delineated what those circum-
stances might be. It is possible that the facts herein might support an exception to the
Aiello rule . However, in view of our abandonment of the rule itself, we find it unnecessary
to consider this point.
7 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons , 134 NLRB 709, enfd.
308 F. 2d 687 (C.A. 9).
8Joy Silk Mills , Inc., 85 NLRB 1263, enfd . 185 F . 2d 732 (C.A.D.C. ), cert. denied
341 U. S. 914.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the opportunity to dissipate the Union's majority. In reaching this
conclusion, we rely on the facts that (1) Respondent refused to rec-
ognize the Union without any reasonable basis for doubting the
Union's majority, rejecting its offer of proof and insisting upon an
election, and (2) shortly before the election Respondent engaged in un-
lawful conduct consisting of promises of benefit to employees and a
suggestion that they form a shop union or shop committee, which con-
duct, we find, was designed to induce employees to repudiate the
Union.9 Accordingly, we find that Respondent's refusal to recognize
the Union was motivated by its desire to gain time in which to under-
mine the Union's majority status and that such conduct is violative of
Section 8 (a) (5) of the Act.
As the 8(a) (5) issue was fully litigated at the hearing, and as we
have found that Respondent violated Section 8( a) (5) of the Act,
we shall order Respondent to recognize the Union as the collective-
bargaining agent of its employees in the appropriate unit.'°
CONCLUSIONS OF LAW
1. Bernel Foam Products Co., Inc., is an employer within the mean-
ing of Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Textile Workers Union of America, AFL-CIO, is a labor orga-
nization within the meaning of the Act.
3. All production and maintenance employees employed at the Re-
spondent's Buffalo, New York, plant, including shipping and receiv-
ing employees and plant clerical employees, but excluding all office
clerical employees, guards, professional employees, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section' 9 (b) of the Act.
4. At all times since November 12, 1962, Textile Workers Union of
America, AFL-CIO, has been the exclusive representative of all the
0 Unlike the Trial Examiner , we are not convinced that , because Respondent made no
effort to impede or delay the election and because Respondent 's unlawful 8(a) (1) conduct
did not occur until 2 weeks after its refusal to bargain with the Union, it follows that
Respondent 's refusal to bargain was not motivated by a desire to gain time in which to
undermine the Union . On the contrary , the time necessarily consumed in arranging for
an election is itself a delay when compared with immediate recognition or acceptance of
an impartial card check. Moreover, the fact that Respondent waited until the day before
the election to engage in unlawful conduct is entirely consistent with a finding that
Respondent refused to bargain with the Union in order to gain time to destroy its majority,
since on the day of the election Respondent would benefit most from its unlawful acts.
At that time , the Union would have little opportunity prior to the election to undo the
harm done by Respondent 's various coercive statements . Further , since Respondent had
taken active steps just prior to the election to destroy the Union ' s majority there obviousl*
was no necessity for Respondent to delay the election further.
10 As we have ordered Respondent to recognize the Union as the collective -bargaining
representative of its employees , we shall dismiss the petition in Case No. 3-RC -3005, and
vacate all proceedings held in connection therewith.
BERNEL FOAM PRODUCTS CO., INC. 1285
employees in the aforesaid unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment, or other
terms and conditions of employment.
5. By refusing on November 12, 1962, and thereafter, to bargain
collectively with the aforesaid labor organization, the Respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (5) and (1) of the Act.
6. By promising benefits to employees and by suggesting to em-
ployees that they form a shop committee or shop union, on No-
vember 30 and December 3, 1962, the Respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaran-
teed by Section 7 of the Act, and thereby engaged in unfair labor
practices within the meaning of Section 8 (a) (1) and Section 2 (6)
and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Bernel Foam
Products Co., Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Textile. Workers Union
of America, AFL-CIO, as.the exclusive representative of . its em-
ployees in the following appropriate unit :
All production and maintenance employees. at the Respondent's
Buffalo, New York, plant, including shipping and receiving employees
and plant clerical employees, but excluding all office clerical em-
ployees, guards, professional employees, and supervisors as defined in
the Act.
(b) Promising benefits to its employees to induce them or others to
withdraw their support or activities on behalf of the above-named
Union, or suggesting to employees that they forma shop committee
or shop union.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist any labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in concerted activities -for the purpose of collective
bargaining or other mutual aid or protection guaranteed in Section 7
of the Act, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment in
conformity with Section 8(a) (3) of the Act.
1 286 DECISIONS OF.NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
.effectuate the policies of the Act:
(a) Upon request, bargain collectively with Textile Workers Union
,of America, AFL-CIO, as the exclusive bargaining representative of
Respondent's employees in the unit found appropriate with respect to
rates of pay, wages, hours of employment, and other terms and con-
ditions of employment, and, if an understanding is reached, embody
.such understanding in a signed agreement.
(b) Post at its plant in Buffalo, New York, copies of the attached
notice marked "Appendix." 11 Copies of said notice, to be furnished
.by the Regional Director for the Third Region, shall, after having
.them duly signed by an authorized representative of Respondent, be
posted by Respondent immediately upon the receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in. conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the said Respondent to in-
sure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the petition for certification of rep-
^resentatives filed by the Petitioner in Case No. 3-RC-3005, be, and it
hereby is, dismissed, and that all prior proceedings held thereunder,
be, and they hereby are, vacated.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations of Section 8(a) (1) of the Act,
other than those found herein.
MEMBER JENKINS, concurring:
I agree with my colleagues that Respondent violated Section 8 (a) (1)
,and with the majority that Respondent violated Section 8(a) (5) of
-the Act, but unlike the majority or my dissenting colleague I find it un-
necessary to pass upon the merits of the holding in Louis Aiello, et al.,
'Co-Partners, d/b/a Aiello Dairy Farms, 110 NLRB 1365.
In my view, this case is controlled by the general principles of Joy
Silk Hills, Inc., 85 NLRB 1263, as the General Counsel urged, and does
not present the factual situation to which the Board has heretofore
applied the Aiello rule.
The long line of Board decisions involving Aiello emphasizes that
essential to the application of the Aiello rule is the requirement that
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order " the words "A
'ecree of the United States Court of Appeals , Enforcing an Order."
BERNEL FOAM PRODUCTS CO., INC. 1287
the union have knowledge of the employer's preelection unfair labor
practices before it proceeds to the election.12 Absent this finding of
knowledge, the Board has refused to apply the Aiello rule.13
Inasmuch as my majority colleagues have found, and I think cor-
rectly, that the Trial Examiner erred in rejecting the General Coun-
sel's contention that Respondent's conduct violated Section 8(a) (5)
of the Act under the principles laid down in Joy Silk, it is difficult
to understand the necessity for reaching beyond the well-reasoned
holding contained in the two paragraphs of the majority decision
which clearly demonstrate the precedential value of Joy Silk to the-
facts at hand. Here, as in Joy Silk, we have the issue of "whether an
employer who refuses to recognize the union and insists upon an elec-
tion is motivated by good faith in the light of all the relevant facts
of the case including the other unlawful conduct of the employer and
the sequence of events."
In the instant case, the preelection unfair labor practices which,
as the majority notes, were "sufficiently onerous to interfere with the
election and to cause a substantial deterioration in the union's status,"
were not committed by Respondent until Friday,- November 30, the
last workday before the election. The Union did not learn of this con-
duct until about 9 a.m. on December 3, the day of the election. Other
unfair labor practices committed by the employer on the morning of
election day did not come to the Union's attention until about 4 p.m.,.
an hour after the election had begun. Under these circumstances I
do not think, it can be said the Union was fully aware of Respondent's
unfair labor practices when it proceeded with the election. Clearly,
the Union was then unaware of Respondent's election day conduct, and
knowledge of the November 30 conduct was gained at a time so close to.
the election hour as to make cancellation of the election impracticable.
Implicit in the Aiello holding is the necessity that the union have-
sufficient time to verify the employer's conduct and to appraise its-
legal significance. Surely, postponement of the election would not be,
a satisfactory alternative, for this would tend to frustrate the Union's
efforts and give the employer additional time in which his unfair labor
practices could effectively dissipate the Union's majority. Moreover,.
applying Aiello to these facts would place a premium on the employer's
timing of its unfair labor practices. In any event, in Aiello the Board
stated the rule there announced to be only a rule of general ap
12Franchester Corporation, 110 NLRB 1391; Graber Manufacturing Company, Inc.,
111 NLRB 167; Armstrong Tire and. Rubber Company, Tire Test Fleet Branch, 111 NLRB
708; Morris Seidmon, et al ., d/b/a Southwester Company, 111 NLRB 805; Melvin Rupp;.
d/b/a Rupp Equipment Company, 112 NLRB 1315.
18 Alexander Manufacturing Company, 110 NLRB 1457; Traders Oil Company of
Houston, 119 NLRB 746 (Members Leedom and Rodgers dissenting).
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plicability and that "borderline cases may be expected which make
application of the rule difficult." 110 NLRB 1365, 1370. At best, this
is a "borderline" case to which I would not find Aiello applicable, and,
accordingly, do not reach the issue dividing my colleagues.
Without expressing a view as to the legal soundness or policy de-
sirability of the rule enunciated in Aiello, I am impelled to note my
disapproval of what I conceive to be an unnecessary overruling of prior
Board decisions.
. As indicated above, and for the reasons set forth in their opinion
for applying the Joy Silk Mills doctrine to the facts of this case, I
agree with the majority that Respondent violated Section 8(a) (5) of
the Act.
MEMBER LEEDOM, concurring in part and dissenting in part :
Unlike my colleagues, I would adhere to the Aiello rule and I
would therefore, in agreement with the Trial Examiner, dismiss the
Section 8 (a) (5) allegation of the complaint.
The critical facts in the present case are not in dispute. On No-
vember 12, 1962, the Union notified Respondent that it was the repre-
sentative of Respondent's employees in the appropriate unit and
offered to present authorization cards to prove its claim. Respondent
refused to have the cards checked by an impartial person despite the
fact that a veteran employee advised Respondent that the Union
did have cards from a majority of employees. This conduct was,
as the Trial Examiner found and as the majority agrees, clearly an
unlawful refusal to bargain. So, at that point, the Union could
have proceeded to file an 8 (a) (5) charge which would have resulted
in an 8 (a) (5) finding and a bargaining order. But the Union, with
full knowledge of the facts, chose instead to file a representation
petition.14 On December 3, the election was held and the Union was
defeated. The Union, thereafter, on December 10, took a further
step under the Board's representation process and filed objections to
the election. On January 31, 1963, the Regional Director set the elec-
tion aside and directed a new election. Although no second election
has been held, the Union at no time requested that its petition be
withdrawn.
Having proceeded gas described above under the Board's representa-
tion procedures, the Union on December 12 filed 8(a) (5) charges
against Respondent. The charges were based on Respondent's con-
duct on November 12 and thereafter in refusing without justification
to recognize the Union. Under Aiello, this charge would have been
14 The majority suggests , and I have no reason to doubt, that this decision was motivated
by the Union 's desire to expedite matters through the quicker representation route.
. BERNEL FOAM PRODUCTS CO., INC. 1289
dismissed since the Union knew of the Respondent's refusal to bargain
when it went to an election and could have filed charges at that time.15
The basic premise of the Aiello rule is that, since the union chose
one of two courses open to it to prove its majority status, it must be
content with that method of proving its majority status and may not,
after having explored the chosen course, utilize an entirely different
means for proving that it was entitled to recognition. This is merely
.an application of the well-accepted "election of remedies" doctrine.16
While the majority apparently concedes the salutary effect of the doc-
trine of election of remedies, it concludes that this doctrine should
not be applied here for several reasons. None of these reasons seems
persuasive to me.
In arguing that because the election here, as in Aiello, was set aside,
the Union should not be bound by its choice of the representation
route, my colleagues overlook the obvious fact that there is an adequate
remedy provided by the Board where an election is set aside, namely,
another election." In this respect, reliance on the A & P case 19 is
completely misplaced. There, in allowing a party to file objections
to an election based upon preelection conduct,- known to the union
before the election, the Board obviously was guided by the fact that
if the estoppel rule were applied and the election were upheld, there
would be no further. remedy for the party aggrieved by the
unfair election. However, under Aiello the Board's preclusion of
the 8(a) (5) still leaves the union free to file objections to the elec-
tion based on the unlawful conduct of the employer; and if the ob-
jections are upheld, the union is afforded another opportunity to prove
its majority status. Indeed, this is precisely what would occur in
the present case, if Aiello were applied. In that event, the pending
8(a) (5) charge would be dismissed, and the Regional Director would
be free.to direct another election. So, here, unlike A do P, the Board's
representative procedures afford an adequate opportunity for the
Union to show in a fair election that it represents a majority of em-
ployees in the unit.
Nor do I think persuasive the majority's further argument that the
participating Union should not be "bound by an election which has
'b Despite intimations in the majority opinion to the contrary , there can be no question
that the Union chose the election procedure . Thus, it filed a petition, it went to an elec-
tion , it filed objections to the election, and it no doubt would have participated in a new
election if its 8 ( a) (5) charge had been dismissed.
16 The doctrine of election of remedies is largely a rule of policy to prevent vexatious
litigation . See, 28 C.J.S. Election of Remedies § 1.
17I note particularly the statement in the majority opinion that "experience" demon-
strates that a "vast majority" of rerun elections results favor the party which interfered
with the original election , and therefore a second election is not an adequate remedy for
conduct interfering with an election . I do not share this far -reaching conclusion. In any
event, I consider it highly undesirable for the Board, in representation proceedings, to
adhere to its rules concerning the direction of second elections while at the same time, in
reversing Aiello, state in effect that it believes that these rules serve little useful purpose.
28 Footnote 5, supra.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been declared a nullity." While the election may have been set aside,
it is clear that all-prior steps taken by the Union in pursuing the rep-
resentation route are not a "nullity." The Board's decision in Aiello
was based not on the fact that the union was bound by the results of
the election-indeed, the election was set aside in Aiello-but rather
by the fact that by initiating a representation proceeding culminat-
ing in an election, the union had indicated its irrevocable choice to
proceed by means of the representation path to establish its majority
status. It is obvious that the union's commitment to the representa-
tion route is no less a fact merely because the election was set aside."
In this connection, I also consider it significant that since the majority's
"reversal" of Aiello is predicated on the fact that the election was set
aside and was therefore a "nullity," -presumably it would continue to
apply the Aiello rule where the election is not set aside because no
objections were filed or the Regional Director dismissed the
objections ao
Nor can I agree with the majority that the Union should not be
bound by its election choice, because its filing of a petition was in-
duced by an unlawful refusal to bargain and raised no genuine ques-
tion concerning representation. This argument, in my opinion, misses
the entire thrust of the Aiello decision. Even were I to agree that no
genuine question concerning representation existed when the Union
filed its petition because an 8(a) (5) charge could have been filed
against the Respondent-and I consider this to be at best a dubious
proposition-I believe the Union should be estopped from making such
a claim . The si !anificant fact is that the Union filed a petition and went
to an election fully aware of those facts, including the Respondent's
refusal to bargain. To give force now to the Union's claim would be
"I also do not agree with the reasoning of the majority that in order to implement the
right of the employees herein to be represented by a labor organization of their own
choosing, the Board should not find that they are bound by the Un 'ion's original election
to proceed by way of the representation route . On the contrary, it is precisely because
these employees do have a right to choose their collective -bargaining representative that
they should be bound by the course of action, albeit unsuccessful , chosen by such repre-
sentative . Surely the majority would not deny that, if the Union had succeeded in, gaining
recognition , it was acting on behalf of employees in the unit.
Further , while I agree completely with the majority that Board proceedings should not
be treated as a "game," unlike the majority , I can see nothing wrong with the Board act-
ing as a "detached observer" in cases arising under the Act rather than as a partisan of
a particular litigant.
20 Such a case could arise where, as here, the refusal to bargain occurred before the
filing of the petition , which is the cutoff date for unlawful preelection conduct, but the
employer engages in no other unlawful conduct before the election . It is interesting that
other portions of the majority opinion seem to suggest that Aicilo should not be applied
even if the election is not set aside . Thus, the majority says that Aiello is wrong because
there is no inconsistency- between representation and unfair labor practice proceedings
and therefore the election of remedies doctrine is inapplicable ; and, further , that as a
matter of public policy , the Board should not permit an employer to evade responsibility
for violating the Act. Under these theories , there would not seem to be any valid reason
for distinguishing, insofar as Aiello is concerned , between the case where the election is
set aside and where it is not set aside. I am unable to reconcile these apparent incon-
sistencies in the majority opinion.
BERNEL FOAM PRODUCTS CO., INC. 1291
to give the stamp of approval to the Union's delay in the filing of
an 8(a) (5) charge until after the election, thereby circumventing the
Board's sound practice of not conducting an election in the face of
pending 8 (a) (5) charges.
My colleagues reason further in effect that since it is Respondent
which has committed the unfair labor practices, the Union should be
allowed to use any method to remedy its unlawful acts. The majority
position is, however, premised on the assumption that in each Aiello
case, the respondent necessarily has violated 8(a) (5) and the only is-
sue is whether the Board should enter an order and remedy the
violation. But Aiello merely requires the Board to dismiss 8(a) (5)
charges where the union has previously gone to an election. While in
some instances, these charges may be meritorious, in many other situa-
tions, even if the Board were to consider the charges they would have
to be dismissed on the merits. Therefore, the majority begs the ques-
tion when it argues that the 8 (a) (5) charges should be entertained be-
cause the Respondent.violated 8 (a) (5) ; for one of the basic questions to
be decided by the Board is whether, in fact, there was any merit in the
charges. In any event, the majority's position misconstrues the
doctrine of election of remedies. That doctrine is predicated upon the
idea that, assuming there is a wrong to be remedied, the party ag-
grieved must make a choice as to how it will seek redress with due
regard for the convenience of the adjudicating forum and without un-
duly harrassing the other parties to the proceeding. Here, the Union
has taken a number of steps under the Board's representation proce-
dures. However, it now wishes to have its representative status estab-
lished via an unfair labor practice proceeding. Under these circum-
stances, the Board in Aiello decided, and I agree, that it would be
balancing the scales unfairly toward the union side to allow it to have
"two bites at the apple."
Finally, the majority makes much of the fact that the 8(a) (5) pro-
ceeding is long and expensive and therefore, the union, in filing a rep-
resentation petition, must not be deemed to have waived its right to
proceed with an 8(a) (5) charge. However, "the ]aw's delay," while
unfortunate, is a necessary part of doing justice and affording due
process to litigants. In any event, the union has a choice : it may
chance a representation proceeding with its quicker but uncertain re-
sults or it may go to an unfair labor practice proceeding with its
slower but more certain pace. Aiello says only that, once having
made its choice, the union must stick to it. Nothing the majority has
said persuades me to abandon this fundamentally fair approach.
Accordingly, while I am otherwise in agreement with my colleagues,
and for'the reasons stated by them, that the Respondent violated Sec-
tion 8(a) (1) of the Act, and, further, that the Respondent's refusal
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to recognize the Union was unlawfully motivated, I would find that,
by proceeding to an election, the Union-made a binding choice and; it.
is now precluded from filing a charge-alleging that the Respondent
violated Section 8(a) (5) of the Act. I would therefore dismiss the
Section 8 (a) (5) allegation of the complaint.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL , upon request, bargain collectively in good faith with
Textile Workers Union of America , AFL-CIO, as the exclusive
representative of all employees in the bargaining unit described
below with respect to rates of pay, hours of employment, and
other conditions of employment , and, if an understanding is
reached, embody such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees employed at
the Buffalo , New York, plant , including shipping and re-
ceiving employees and plant clerical employees , but exclud-
ing all office clerical employees , guards, professional em-
ployees , and supervisors as defined in the Act.
WE WILL NOT promise benefits to our employees to induce them
or others to withdraw their support or activities on behalf of the
above-named or any other labor organization, or suggest to em-
ployees that .they form a shop committee or shop union. .
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Tex-
tile Workers Union of America, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for
the purpose of mutual aid or protection, and to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section
8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except as
that right may be affected by an agreement requiring membership in
BERNEL FOAM PRODUCTS CO., INC. 1293
a labor' organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as amended.
BERNEL FOAM PRODUCTS CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 120 Delaware Avenue, Buffalo, New York, Telephone No.
Tl. 6-1782, if they have any questions concerning this notice or com-
pliance with itsprovisions.
TRIAL EXAMINER'S DECISION
This proceeding, under Section 10(b) of the National Labor Relations Act (29
U.S.C. Sec . 151, et seq., herein called the Act), was commenced by a complaint I
alleging that, on November 12, 1962, the Charging Party ( herein called the Union),.
representing a majority of Respondent 's employees , requested that Respondent bar-
gain with it as the representative of the employees in an appropriate unit; that
Respondent refused to bargain as requested but engaged in conduct which interfered
with , restrained , and coerced the employees in their organizational activities in order
to undermine the Union and destroy its majority . By such conduct , it is alleged,.
Respondent violated Section 8(a)(5) and ( 1) of the Act.
Respondent answered , admitting that it was engaged in commerce and that the
unit of its employees alleged in the complaint constituted a unit appropriate for
collective bargaining . It denied , however, the commission of the unfair labor prac-
tices alleged . A hearing on the issues so raised was held before Trial Examiner
Sidney D. Goldberg at Buffalo , New York, on May 21 and 22 , 1963 , at which all
parties were represented and afforded full opportunity to introduce evidence and
present oral argument . Briefs were filed by the General Counsel and Respondent
and they have been considered.
For the reasons set forth in detail below , I find that the Respondent , by conduct
on November 30 and December 3, 1962 , interfered with , restrained , and coerced its
employees in their exercise of rights guaranteed them in the Act and that it thereby
violated Section 8(a) (1) thereof . Although I also find that the Union was, on
November 12, 1962 , the collective -bargaining representative of a majority of Re-
spondent 's employees in an appropriate unit and that Respondent 's refusal to recog-
nize and bargain with the Union on that date was not based upon any good -faith,
doubt as to the status of the Union or the appropriateness of the unit , Respondent's
refusal did not, under the Board rule set forth in Aiello Dairy Farms, 110 NLRB
1365 , constitute an unfair labor practice under Section 8(a) (5) of the Act.
Upon the entire record in the case , and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, is engaged at Buffalo , New York, in the
manufacture of foam , plastic, and rubber articles. During the 12 months preceding
the issuance of the complaint , Respondent imported into the State of New York
goods and materials valued at more than $50,000 and , during the same period, sold
and shipped , from its plant to points in the United States outside the State of
New York, products valued at more than $ 50,000. Respondent admits, and I find,
that at all times material herein it was an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
' Issued April 15, 1963, on a charge filed December 12, 1962.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union's organization and request for bargaining
The facts in this case are not seriously in dispute. Early in November 1962,2
the Union, through its representative, James E. Ryan, began organizing the em-
ployees of Respondent. On November 6, at a meeting attended by .16 of the 88
employees in the plant, 14 signed authorization cards and several of them took blank
cards for execution by their fellow employees. By the morning of Monday, Novem-
ber 12, Ryan had 53 signed cards in his possession. Sometime around noon on that
day, Ryan telephoned J. Alan Bernel, Respondent's president, and stated that the
Union represented a majority of Respondent's production and maintenance em-
ployees? He asked Bernet to recognize the Union and to meet with him to discuss
a bargaining unit and a contract.
Bernet answered Ryan by saying that he did not know him; and that he did not
know where Ryan could have obtained authorization cards signed by a majority of
the employees and doubted that he had them. In response, Ryan explained that it
was customary under such circumstances for unions to enlist the aid of some im-
partial person, generally a priest, minister, or rabbi, have him count the cards, and
inform the company whether the union represented a majority. Bernet said he
"didn't want to get involved in a thing like this unless he had a chance to talk to
some of his guys." Ryan warned him that he could "get into quite a muddle" and
suggested that he consult a lawyer. Bernet said he knew what his rights were under
the law and, according to his own testimony, when Ryan suggested that "a neutral
person" examine the cards and render "an unbiased report, he stated: "No, Mr.
Ryan, I want you to become certified as the representing union and we'll have a
ballot, a vote within the plant." After a short further exchange in which Ryan sug-
gested that Bernel's answer might provoke a strike and Bernet expressed unconcern
at the prospect, the conversation ended.
Later that day, Bernet sent for James Lesanti, a veteran employee with whom he
had often discussed problems, and told him about the call from Ryan. Berne t asked,
"What's going on? What's the trouble?" and Lesanti said that there were "a lot of
gripes going on in the plant about various things"; that his own complaint was that
the quality of supervision was poor and the supervisors treated the employees "like
dirt." Lesanti testified that, when Bernet told him that Ryan had asserted he had
authorization cards signed by a majority of the employees, he answered: "If he says
he got it , he must have it." 4
Paragraph 9 of the complaint alleges that:
On or about November 6 through 9, 1962, a majority of the employees of
Respondent in the unit described above in paragraph 8, designated or selected
the Union as their representative for the purposes of collective bargaining with
Respondent.
and paragraph 10 alleges that:
Commencing on or about November 12 .... the Union has requested .. .
Respondent to bargain collectively ... .
The record shows that the 53 cards signed between November 6 and 9 (the latter
being a Friday) were in the possession of the Union's representative, James-Ryan,
on Monday, November 12, when he requested recognition from Respondent. There
is neither claim nor evidence that Respondent, before Ryan's call, even knew of the
organizational activity-much less that it had done anything to impede or reverse
its effect-and Respondent has raised no question based,upon these dates. The
General Counsel's motion to conform the pleadings to the proof was adequate, there-
2 All dates herein , unless otherwise designated , are in 1962.
An appropriate unit: see footnote 11 below.
Although Bernel testified that he did "not recall" Lesanti making this statement, he
admitted that he never had any reason to doubt that the Union had cards signed•by a
majority of the employees.
BERNEL FOAM PRODUCTS CO., INC. 1295
fore, to cover this apparent variance and I find that, when it requested recognition
on the 12th, the Union represented a majority of the employees in the unit.5
B. The union meeting of November 13
Late the following day, Bernel again -approached Lesanti and said he had heard
that there was to be a union meeting that evening. Bernel asked whether he could
attend and Lesanti answered: "It's an open meeting. I don't care." As he was
punching out that evening, Lesanti told a number of his fellow employees about the
conversation.
That evening Lesanti and Ryan were outside the meeting hall when Bernel drove
up. Lesanti introduced Bernel to Ryan and both Lesanti and Ryan suggested that
they go inside. There were 25 or 30 day-shift employees present in the meeting hall.
Ryan opened the meeting and introduced Bernel, saying that it was rather irregular
for a company president to come to a union meeting and he hoped Bernel would
reciprocate by inviting him to the next meeting of the board of directors. Ryan then
threw the meeting open for questions to Bernel and for the next hour and a quarter
the employees detailed their dissatisfactions. In most instances, Bernel said he was
unaware of the problems and promised -to consider them or discuss them with
the plant supervisors. Among the subjects discussed were the lack of job classifica-
tions and the differing systems of wage increases for male and female employees.
At the end of this period, Ryan suggested that Bernel leave since. there were other
matters the employees wished to discuss. Bernel then announced that there would
be a meeting in the plant on Friday afternoon and that all employees could attend.
He also invited Ryan to be present. According to the testimony of Ryan, Lesanti,
and Reginald Goodrich, another employee present, Ryan again asked Bernel to
recognize the Union -and Bernel again refused, saying that he wanted "to talk with
some of the boys" and to investigate the Union-that if it was a "good union" he
would even sign a card himself.6
Whether at this meeting Ryan again asked Bernel to recognize and bargain with
the Union is not of vital significance because, pursuant to a course of action adopted
at the meeting, on the following day Lesanti and Goodrich visited Bernel at his office
and requested him to sign an interim agreement prepared in the Union's office. The
proposed agreement provided, inter alia, for recognition of the Union as the rep-
resentative of all employees except salesmen and supervisors, that layoffs and recalls
should be on the basis of seniority, and that an effort to commence contract negotia-
tions should be made within 7 days.?
Bernel read the document. When he had done so, Lesanti and Goodrich asked him
to sign it as recognition of the Union. Bernel said-as all those present agree-that
he would not sign it: that he would have nothing to do with the Union until it
became certified and he doubted that -the Union represented a majority of the em-
ployees. In response to the latter statement Lesanti and Goodrich suggested that
Bernel get "a judge or a minister or anyone to sit down and go through the cards,"
but Bernel repeated his refusal to have anything to do with the Union unless it was
certified.8
5 By the language of paragraphs 9 and 10 of the complaint and by the allegation, in
paragraph 12, that Respondent's conduct since November 12 was "in order to undermine
the Union and destroy its majority," the General Counsel appears to concede that Re-
spondent's efforts were successful and that, after November 12, the Union no longer rep-
resented a majority. There Is nothing in the record on this point, except that the Union's
loss of the election on December 3, referred to in footnote 11, below, supports the con-
clusion as of that date.
e Although Bernel denied this exchange, I accept the testimony of Ryan, Lesanti, and
Goodrich that it occurred. Bernel's testimony appeared to be characterized by an aggres-
sive self-justification which, while entirely consistent with his interest in the result of
this proceeding and the outcome of the events which gave rise to it, is often not persuasive
as to the accuracy of his stated recollection. When opposed to other testimony which is
clear and plausible-as In this instance-and where the lack of objective evidence requires
a resolution of the basis of "credibility" alone, Bernel's testimony must be regarded as
tainted by his attitude and his interest and rejected in favor of that opposed. Fortunately,
as stated above, there are few deep conflicts in the evidence in this case.
The interim agreement also provided that the Employer discuss grievances with the
Union ; that deduction of union dues and assessments should begin at once ; and that the
agreement be terminable by either party on 24 hours' notice without any duty or liability
under Section 8(d) of the Act.
s Bernel denied that a card check was again discussed but his denial is not credited.
744-670-65-vol. 146---83
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before leaving Bernel's office, Lesanti said that the employees would show their
strength by staging a 15-minute walkout.
C. Work stoppage of November 15
The working day at Respondent's plant begins at 8 a.m. On November 15,
Bernel arrived shortly before 8 and found employees Lesanti, Goodrich, and some
others standing with Ryan on the street. He went inside and, when the starting
bell rang at 8, some of the employees who had clocked in started to walk out.
Bernel announced that anyone going out of the plant was required by the rules to
punch out. He persuaded at least one employee, Trueman Seymour, not to leave
but to hear what he had to say and he called the employees who remained in the
plant to a meeting. According to Irene Jones, one of the employees who did not
walk out,9 Bernel -told the gathering that the Union was trying to get into the plant
and had requested recognition but -that he had asked that it be first certified by
an election; that he would rather "have unity in the plant" and that if anybody
had any gripes, he wished they would come to him and tell him. He also said that
he did not think the Union was the right thing at this time and if he thought it was
a good union he would accept it.10
At the end of 15 minutes, Bernel asked employee Seymour to go out and tell the
people to come back to work; that there would be no ill feelings but that "we are
going to do it in accordance to the law." All those who had left returned to work.
As the employees were returning to the plant, Ryan sent a message to Bernel that
he would like to see him but Bernel answered that he had nothing to say to Ryan until
the Union was certified.
Later that day, Ryan and Lesanti visited the local office of the New York State
Board of Mediation. The director tried to arrange a meeting for the following day
but reported that Respondent had refused to attend a meeting with the Union until
it was certified. Ryan then went to the Board's Regional Office and file a petition
for an election."
Except for a short conversation between Ryan and Bernel on November 16, in
which Ryan asked Bernel whether he was going to hold his promised meeting with
his employees and whether he, Ryan, was still invited, and in which Bernel was in-
6 Both Trueman Seymour and Irene Jones had signed union authorization cards. Of the
67 employees in the day shift, 26 walked out. Respondent, however, does not rely upon
these figures as a basis for doubt concerning the Union's majority.
10 These statements of Bernel are not alleged to be in violation of Section 8(a) (1).
11 Case No. 3-RC-3005. At the hearing in this case, the General Counsel requested that
official notice be taken of the proceedings in the representation case. The request was a
proper one (Plant City Welding and Tank Company, 123 NLRB 1146, 1150; Seine and
Line Fishermen'8 Union of San Pedro, affiliated with Seafarers' International Union,
AFL-CIO (William J. Horner, et al. ), 136 NLRB 1, 3) and properly made at the time
to afford the other parties an opportunity, In accordance with Section 7(d) of the
Administrative Procedure Act, to controvert the accuracy of the record in that case. No
objection was made to the request, which was granted, and no question has been raised
as to the accuracy of the record. Examination of the public file in the representation
case (which, for convenience In reference, has been marked In evidence as Trial Examiner's
Exhibit No. 1) shows that, as stated, the Union filed a petition on November 16, describ-
ing the unit sought to be represented as:
All production and maintenance employees including shipping and receiving em-
ployees and plant,clerical employees, excluding all office clerical employees, guards,
professional employees, and supervisors as defined in the Act.
At no time In the representation case was any question raised as to the appropriateness
of the unit, the allegation thereof in the complaint herein was not denied, and a produc-
tion and maintenance unit is routinely considered appropriate. Accordingly, I find that
the stated unit is appropriate for collective bargaining under Section 9 of the Act.
The file also shows that: On November 26, Respondent and the Union entered into an
agreement for consent election which was approved by the Regional Director ; the tally of
ballots dated December 3 certified that an election held that day resulted in 34 votes for
the Union and 53 votes against It; on December 10 the Union filed objections to certain
conduct alleged to have affected the results of the election ; and on January 31, 1963, the
Regional Director issued his report on objections, finding merit in certain of the objections,
setting the election aside and directing that a new election be held. There is no indication
that the new election has been held.
BERNEL FOAM PRODUCTS CO., INC. 1297
definite about whether the meeting would be held but said that , "after what happened
yesterday ," he did not believe Ryan was still invited , there were no significant occur-
rences until the end of that month.
D. The meetings on November 30
On November 29, according to Bernel, employee Stanley Grzebielucha (pro-
nounce Job-a-lua) said to him: "Al, the employees want you to talk to them. You
have not said one word to them since the morning of November 15." Bernel there-
upon posted notices on the timeclock and in the luncheon area stating that, on No-
vember 30 at 12:15 and 8:45 p.m.' in the shipping room area, he would "review
this company's past history, present and future intentions" to all interested em-
ployees; that the discussion would be on the employees' free time and that attend-
ance was not compulsory although "each employee who is interested in the con-
tinued progress of the company is urged to attend." Bernel also testified that a
reason for holding the meetings was that he had periodically-at approximately
6-month intervals-called the employees together to inform them of the Company's
business position; that he had held a similar meeting in late September or early
October at which he had announced certain wage increases but had pointed out
that the reason why there was no pension plan or sickness insurance beyond that
required by State law was because the Company's margin of profit was insufficient.
At that time, he had also told the employees about the Company's investment in
new equipment and promised to review the situation at the end of 3 months.
At the meetings on November 30, Berne] testified, he again admitted that the em-
ployees lacked "fringe benefits" but said that the only way these could be obtained
was for the Company to make more money and that the employees could help it do
so by saving time and material. He also said that he wanted "a happy family."
After these few remarks, according to Bernel, there was a question-and-answer period,
during which he assured the employees that, on the basis of orders received, their
jobs were secure for at least 3 months and that no one would be laid off or "treated
poorly" because they were for or against the Union.
In addition to Bernel's account of the matters discussed at the meetings of No-
vember 30, it appears from the credited testimony of all five of the employees who
testified that they were at the meeting of the day shift, that Bernel suggested the
formation of a committee to be chosen by the employees and with which he would
negotiate concerning grievances.12 They also testified that there was some discussion
about job classification and health insurance.
Employee Maragliano, who was on the night shift and attended the meeting held
at 8:45 p.m., was the only employee witness concerning the night meeting. He
testified that Bernel, after summarizing certain financial aspects of Respondent,
stated that "job classification was being worked on to some extent and that we were
going to get it" and that the employees "would get Blue Cross and Blue Shield and
the other benefits, union or no union, eventually." Bernel then said that the em-
ployees could have "a shop committee or a shop union"; that it would be done by
means of "a democratic election the same as the Union"; and that they "could have
posters all over the place" if they wanted to.
I find that at both meetings it was Bernel who suggested the formation of a com-
mittee to represent the employees and deal with him concerning grievances. .
Maragliano's testimony concerning Bernel's- statements about job classification
and additional health benefits was specific and I find that, at-the meeting of the
night shift, he made them. While it appears'that they were mentioned at the meet-
ings of the day shift on November 30 and that they had been mentioned at meetings
between Bernel and the employees prior to the Union's organizational campaign, the
evidence concerning these statements at the noon meeting is too vague to justify a
finding.
12 Bernel's testimony on this point-on cross-examination-was that Grzebielucha asked
him whether the employees could form a committee to represent them and that he an-
swered: "You have committees already; a Christmas and picnic committee. If you want
to use that, I'm willing to listen to anyone as long as it's democratic and represents all
employees." As stated above, I credit the testimony of the five employees: they all testi-
fied that it was Bernel who made the suggestion and Bernel, as pointed out above, was
not a credible witness. Moreover, Grzebielucha, although still an employee, did not testify.
As a sidelight to Bernel's choice of an employee to whom to. attribute the suggestion for
formation of a grievance committee, it appears that, prior to the election, there was
brought into the factory a large painted sign-not displayed. until after the election-say-
ing: "Elect Irene Bryk and Stan Grzeblelucha."
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At both meetings , according to the testimony of employees present , Bernel said
that Respondent did not charge the employees $60'a year to keep their jobs "so
why should [they] pay that sum to the Union to keep [their ] jobs?" Bernel did
not deny these remarks and I find that he made them.
E. The December 3 leaflets
November 30 was a Friday and, except for completion of the night shift's work,
the plant does not operate Saturday. On Monday, December 3, as the employees
came to work, they were handed leaflets signed by the "Organizing Committee" of
the Union which purported to meet or answer statements alleged to have been made
by Bernel at the November 30 meetings. Within 3 hours Berne[ had com-
posed, reproduced, and begun to distribute a handbill of his own which, referring
to the one handed out by the Union earlier in the day, tried to meet the points made
by the Union. Neither of the handbills appears to raise matters not covered by the
evidence concerning the exchanges at prior meetings-formal and informal-be-
tween Bernel and the employees, nor to carry these matters substantially further than
they had been discussed at those meetings, except that, on the subject of job clas-
sification, Bernet's leaflet stated: "I agree that this program shall be put into effect
as soon as possible." Considering that these handbills represented a last-minute
exchange of arguments prior to the election of that afternoon, both leaflets display
a heartening reasonableness in their efforts to persuade and a welcome absence of
the viciousness sometimes seen in such exchanges.
F. Discussion and conclusions
1. Interference , restraint , and coercion
a. Interrogation of Lesanti
The complaint alleges interrogation of employees on November 12 and the Gen-
eral Counsel, in his evidence and brief, identifies this incident as the conduct of
Bernel, after receiving Ryan's telephoned demand for recognition, in going to Lesanti
and asking: "What's going on?" Lesanti's answer, showing that he understood
that Bernel referred to union organizational activity, was that there were "a lot of
gripes going on in the plant" and that his personal gripe was that he did not think
that the supervision was very good.
Lesanti was one of the principal witnesses for the General Counsel and one of
the leaders in the organizational movement. He gave a clear account of his union
activity and of his dealings with Bernel. In doing so, he made an excellent im-
pression upon me as an intelligent person and I have no difficulty in accepting
Bernet's statement that he discussed "many things" with him concerning the opera-
tion of the plant. Bernet's question, although not confined to determining whether
a,majority of the employees had actually designated the Union as their representative
and so protected under the Blue Flash 13 rule, was nevertheless not part of a sys-
tematic or coercive interrogation but was Bernet's spontaneous reaction to the Union's
demand for recognition. Under the circumstances, it was quite natural for
Bernel to ask Lesanti this preliminary question. Considering the men involved
and their relationship, I find nothing in this conversation to form a basis for a con-
clusion that Bernel thereby "interfered with, restrained, or coerced" Lesanti in his
organizational rights. While the words used by Bernel, or almost any words in an
appropriate context , might justify an inference of coercion , the facts here, in my
opinion, leave no room for any such conclusion. Accordingly, I recommend dis-
missal of this allegation of the complaint.
b. Bernel's presence at the union meeting
Bernet's presence at the union meeting of November 13 is alleged as interference
with the employees' organizational activities. Interestingly, nowhere is this conduct
characterized by the General Counsel as "surveillance": probably because the Board
has often held that the presence of management representatives pat union meetings
by invitation or acquiescence does not constitute surveillance.14 In support of his
13 Blue Flash Express, Inc., 109 NLRB 591.
" See: Union Transfer & Storage Company, 134 NLRB 24, 28; Rural Electric Company,
Inc., 130 NLRB 799, 812 ; E. E. Majeroni and L. E. Majeroni, d/b/a Home Restaurant
Drive-in, 127 NLRB 635, 650; Butcher Boy Refrigerator Door Company, 127 NLRB 1360,
1376; Cullman Electric Cooperative, 99 NLRB 753, footnote 2; Roxanna of Texas, Inc.,
98 NLRB 1151, 1161.
o °
BERNEL FOAM PRODUCTS CO., INC. 1299
position , however, the General Counsel cites Majestic Metal Specialties , Inc., 92
NLRB 1854 , wherein the Board , reversing the Trial Examiner 's finding that ". .
Respondent did not exercise surveillance over its employees by the presence of its
supervisors at the meeting because it had neither instructed its supervisors to attend
the meeting nor received a report from them as to what had transpired ," stated
(p. 1855):
it is well established that the mere presence of supervisors at a union meet-
ing exerts a coercive influence on employees and is therefore violative of Sec-
tion 8 (a) (1) of the Act ( Premier Worsted Mills, 85 NLRB 985 , and cases cited
therein).
The difficulty with the argument so advanced is that Majestic Metal Specialties,
Premier Worsted Mills, and the cases cited in the latter , are all surveillance cases.
I have found only one case ( Ben Corson Manufacturing Co., et al., 112 NLRB 323,
342-343 ) in which an effort was made to separate "interference" from "surveillance"
growing out of a supervisor 's presence at a union meeting and in that case, as the
Trial Examiner points out, the supervisor was not invited and his presence was
terminated prior to the opening of the meeting . Accordingly , the conduct could
not be labeled "surveillance ," but the supervisor 's prior declaration that he was going
to "bust up" the union and the respondent 's strong antiunion bias impelled the Trial
Examiner to find , in this supervisor 's acts, a violation of Section 8(a)(1) that was
adopted by the Board without comment . Such considerations are not present in
this case.
Passing to direct consideration of what actually occurred at the meeting, it ap-
pears that , during the time he was present, Bernel was the center of an intense dis-
cussion of the plant problems which had persuaded the employees to call upon the
Union to assist them. There is no evidence that the employees felt coerced or
restrained . by Bernel 's presence in the activity in which they were then engaged:
it could not have gone on without him. For an hour and a quarter Bernel listened
to complaints , tried to explain his problems , and promised to "look into" the mat-
ters they discussed. When the employees decided they had given enough time to
discussion with Bernel and wished to consider their own affairs , they asked him to
leave-which he did. In these facts I can see no evidence of interference , coercion,
or restraint by Respondent.
While there is no doubt that , between the demand for recognition on November
12 and the election on December 3, the Union lost its majority and that, as will be
seen, Bernel 's statements and activities in their totality were a producing factor in
this loss of majority , to assign to Bernel's mere presence at this meeting some iden-
tifiable portion of that result would be sheer speculation . Accordingly , I shall rec-
ommend dismissal of this allegation of the complaint.
c. Bernel's suggestion that a committee be formed
It has been found that Bernel , at the meetings of November 30, suggested that
the employees elect a committee with which he promised to negotiate concerning
grievances . This tactic of undercutting one type of employee self-organization, i.e.,
union membership, which is distasteful to the employer , by offering another, more
amenable type, with a promise to deal with it, has been often condemned by the
Board 15 and Bernel 's suggestion constituted an interference with the employees' right
to self-organization that violated Section 8(a)(1) of the Act.
d. Statements concerning job classification and additional health benefits
It has been found that , at the meeting of the night shift on November 30 at 8:45
p.m., Bernel said that job classification "was being worked on" and that the em-
ployees were "going to get it." He also said that the employees "would get Blue
Cross, Blue Shield and the other benefits, union or no union , eventually."
Despite the Union 's statement , in the leaflet it distributed on the day of the election,
that Respondent had "made no firm promises"-,an argument which could justifiably
be made at that time without it being construed as an admission against interest
'fi Savoy Leather Mfg. Corp ., 139 NLRB 425 ; Greystone Knitwear Corp . and Donwood,
Ltd., 136 NLRB 573; Alberto Culver Company , 136 NLRB 1432 ; S-P Machine Shop,
Inc., 135 NLRB 1097, 1107 ; Dallas Egg Products , Inc., 121 NLRB 873, enfd. 283 F. 2d
871 (C.A. 6).
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at this time 16-I conclude that these statements by Bernel constituted promises of
benefit, albeit vague, for votes against the Union. Moreover, these statements were
coercive in that they had the reasonably probable effect of persuading the employees
that, since the benefits involved would come to them "union or no union," there
was no need for their further adherence to or support of the Union. As the Board
wrote, in The Trane Company (Clarksville Manufacturing Division), 137 NLRB
1506, 1510:
Thus, the letters to employees conveyed the message that the Employer had a
unilaterally established wage and employee benefit policy, that benefits had
been accorded in the past and would be accorded in the future on the basis of
this policy without the intervention of a union, that the policy would not
be changed even if a union were selected to represent the employees, and
therefore that the selection of such a representative was an unnecessary expense
and futile. Such an attitude is not only inconsistent with good-faith bargaining,
it is also reasonably calculated to have a coercive effect upon employees who,
no more than the generality of mankind, are inclined to indulge in futile acts. ° o
There is no more effective way to dissuade employees from voting for a
collective-bargaining representative than to tell them that their votes for such a
representative will avail them nothing.
Accordingly, I hold that by these statements of Bernel, Respondent violated Section
8(a)(1) of the Act.
e. Other promises of benefit
At the evening meeting on November 30, Bernel made the statement that union
dues amounted to $60 per year and that Respondent did not charge its employees $60
per year to keep their jobs. The allegation in paragraph 7(d) of the complaint that
"on . . . November 30 . . . Bernel promised . employees . . . other benefits
if they refrained from .. . giving . . . support to [the Union]," appears to be
directed to this conduct.
The Union's leaflet, which showed accurate knowledge of what occurred at that
meeting, did not dispute the amount of the dues but outlined the benefits of union
membership. In The Trane Company, supra, the Board held that statements by an
employer informing the employees about the dues and fees for union membership
was "legitimate propaganda" but in that case, because the information given was un-
true and its release was timed so as to deny the union an opportunity to point out
the falsehood, sustained the objections to the election. Here, no claim has been
made that Bernel's statement was untrue and the Union did respond. Since under the
Trane decision, where the applicable standard was a stricter one than here, truthful
reference to union dues at an appropriate time would have been permissible, I con-
clude that Bernel 's reference to the amount of the Union's dues did not violate Section
8(a)(1) of theAct. 17
2. The refusal to bargain
a. The merits
When Ryan requested that Respondent recognize the Union as the collective-
bargaining representative for its production and maintenance employees, he had 53
signed authorization cards in his possession as compared with the 88 employees in
the unit. Although Bernel responded to Ryan by saying that he doubted Ryan had
the cards, when Ryan offered to submit the cards to an impartial person for checking,
Bernel said he "was not interested." That same day, Lesanti assured Bernel that
Ryan's statement was true and Bernel testified that he had no basis-"none whatso-
19 The statement in the General -Counsel's brief that "until the time of the distribution
of the [employer's] leaflet , the employer's promises for the future could well have been
considered by the employees as too indefinite to justify reliance thereon" was made in
support of his argument on an entirely different point.
17 See Suburban Drugs, Inc., and La Grange Highland Drugs, Inc., 138 NLRB 787, 793.
In Watertown Undergarment Corporation, 137 NLRB 287, 299-300, the statement by the
son of the president of the company, who acted as a representative of its management,
that "$48 a year was a lot of money for the benefits . .. they.could be getting the bene-
fits without the payments" was a direct promise of benefit, made in the context of re-
peated threats to close the plant if the hitherto-recognized union continued to function
as the collective-bargaining representative of the employees.
BERNEL FOAM PRODUCTS CO., INC. 1301
ever" was his expression-for doubting the authenticity of the cards.18 It is also
clear from the record that on numerous occasions, in fact, every time the question
arose, Bernel said he was not interested in the Union's representative status based
upon the authorization cards but he steadfastly insisted that the Union prove its
position by victory in a Board election. It appears, therefore, to have been Bernel's
view that the employees' written designations of the Union as their collective-
bargaining representative were ineffective for that purpose and could be safely
disregarded. Consistent with that view, Respondent's counsel, in their brief, state
that:
Election procedure would be rendered useless if signatures to application or
authorization cards were to be considered as a binding expression of an em-
ployee's intent.
There is no doubt that an employer who refuses to recognize the union representing
a majority of the employees in anappropriate unit so that he may so secure time to
destroy the Union's position, thereby commits an unfair labor practice. This is the
typical Joy Silk Mills 19 violation and most of the decided cases fall into this area.
It is also clear that an employer having -a valid factual basis for doubt concerning
the union's representation of a majority of the employees may refuse to recognize
the union without thereby violating the Act?a
The General Counsel, in keeping with his duty as prosecutor herein, takes the posi-
tion that Bernel 's questioning of Lesanti and his attendance at the union meeting,
following closely upon Respondent's rejection of the Union's request for recognition,
constituted both interference with the employees' organizational rights and proof
that Respondent's refusal to recognize the Union was for the purpose of securing
time to undermine its status. Adoption of the General Counsel's position would
undoubtedly simplify decision on this aspect of the case-whatever effect it might
have on other aspects-by making it a routine Joy Silk Mills case.
On the basis of the evidence, however, I !am unable to conclude that Respondent's
refusal to recognize the Union on November 12 and its insistence upon an election
were dictated by a desire to secure time to dissipate the Union's majority. In reach-
ing this negative conclusion I have taken into consideration the finding above set
forth that Bernel's question to Lesanti on the 12th and his attendance at the union
meeting on the 13th were not interference, restraint, or coercion; that Respondent
made no effort to impede or delay the Board election but consented promptly thereto
and, finally, that it was not until more than 2 weeks later-the last working day before
the election-that Bernel made the promises of benefit which did constitute unlawful
interference.
On the other band, there is absolutely no evidence in the record to establish a
valid, factual basis for Bernel's statement of doubt that the Union represented a
majority of Respondent's production and maintenance employees on November 12.
On the witness stand, Bernel stated that he had no -basis-"none whatsoever"-for
doubting the authenticity of the cards which Ryan suggested be checked by an im-
partial person and he showed nothing else to support a doubt of the majority
representation by the Union. Accordingly, while Bernel might express a doubt,
he could not, on the basis of this record, entertain one which might be justifiably
labeled a "good-faith doubt." `
Bernel's position that he would not recognize the Union unless and until it proved
its representation status in a Board-conducted election, under the circumstances of
this case, poses the question whether there is an area, between the two outlined
above, in which an employer, faced with a union's demand for recognition based
upon card designations by a majority of the employees in an appropriate unit, may
lawfully reject such card designations as a basis for the claim of majority representa-
tion and demand that the Union prove its majority in a Board -conducted election.
There is no area and Respondent's position is not tenable. The Board, in United
Butchers Abattoir, Inc., 123 NLRB 946, 957, and Fred Snow, et al., d/bla Snow &
Sons, 134 NLRB 709, 710, enfd. 308 F. 2d 687, 691 (C.A. 9), has unequivocally
stated that an employer does not have an absolute right to a Board-conducted elec-
18 At the hearing , Respondent raised the question as to whether the signed cards repre-
sented the employees ' uncoerced designations of the Union as their bargaining representa-
tive. All 53 of the cards were proved to have been validly and voluntarily signed and
the one witness who said that she tried to get her card back, Shirley ^Sloat, testified that
she did so because she was afraid of losing her job.
1985 NLRB 1263 , enfd . 185 F. 2d 732 (C.A.D.C.).
20 See, for example, Norlee Togs, Inc., 129 NLRB 14; Neuman Transit Co ., Inc., 138
NLRB 659, 678. -
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion; that absent a good-faith doubt with respect to either the appropriateness of the
unit or the union 's majority status , its refusal to recognize the union constitutes a fail-
ure to fulfill the bargaining requirements under the Act and a violation of Section
8(a) (5) thereof . The Second Circuit Court of Appeals, in N.L.R.B. v. Philamon
Laboratories, Inc., 298 F. 2d 176, 179, enforcing the Board 's Decision and Order (131
NLRB 80), clearly and succinctly stated the rule as follows:
The Act imposes a duty to bargain in good faith upon request whenever a
labor organization has been designated by a majority of employees in an ap-
propriate bargaining unit. The employer must recognize and bargain with
such an organization whether or not it has been certified by the Labor Board.
United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62
(1956); N.L.R.B. v. Sunrise Lumber & Trim Corp., 241 F. 2d 620 (2 Cir.
1957), cert. denied 355 U.S. 818 (1957). To be sure, an employer laboring
under a good faith doubt as to a union 's majority status need not extend rec-
ognition . Nevertheless, in the absence of such a doubt, the employer has no
vested right to an election . N.L.R.B. v. Trimfit of California, 211 F. 2d 206
(9 Cir. 1954).
Moreover, in rejecting the employer 's defense that, when it refused to bargain it
had a "good faith doubt" of the Union's majority representation , the court wrote,
in language applicable here:
Finally, respondent contends it had a good faith doubt as to the union's
majority status . The record shows, however, that respondent in fact deliberate-
ly shut its eyes to the facts of its industrial life and assiduously avoided giving
the union any opportunity to substantiate its claims. Such conduct is not indica-
tive of good faith.
In view of the foregoing , I would conclude-absent the considerations set forth
immediately hereafter-that Respondent 's refusal to recognize and bargain with
the Union, on November 12 and thereafter , constituted a "rejection of the collective
bargaining principle" and a violation of Section 8(a) (5) of the Act.21
b. Applicability of the "Aiello Dairy" rule
The record herein , briefly summarized, shows the following: on November 12
the Union, having been designated as their collective-bargaining representative
by a majority of Respondent 's employees in an appropriate unit requested that
Respondent recognize and bargain with it as such representative and that Respondent
then refused and has since refused to do so; pursuant to a petition filed by the
Union and an agreement signed by Respondent and the Union , a Board election
was set for Monday, December 3, beginning at 3 p.m.; on Friday, November 30,
meetings of Respondent 's employees were held in its plant at 12:15 and 8:45 p.m.
at which Respondent 's president , J. Alan Bernel, made promises of benefit to the
employees which interfered with their rights of self-organization under the Act and
one of these promises was repeated and made more definite in the leaflet distributed
by Respondent to its employees about 11 a.m. on December 3; at or before 9 a.m.'
on December 3, the Union had knowledge of the promises made by Respondent on
November 30 and, about 4 p.m. on December 3, learned of the promise made
in the leaflet ; the election was held as scheduled on December 3 and resulted in the
rejection of the Union ; and, finally, the Regional Director subsequently sustained the
Union 's objections to the election and set the election aside but has not yet fixed a
date for another election.
In Aiello Dairy Farms, 110 NLRB 1365 , the Board had before it for consideration
a case in which the charging union , representing a majority of ,the employees in an
appropriate unit, had demanded and been refused recognition as the collective-
bargaining representative ; had thereafter filed a representation petition and par-
ticipated in a Board -conducted election which it lost and, subsequently, filed a
charge based upon the employer 's refusal to bargain. The Board refused to find
a violation of Section 8(a) (5) of the Act on the ground that the Union, by proceed-
ing to the representation election despite its belief that the employer had unlawfully
refused to bargain , was estopped from asserting that the employer had thereby
violated the section.
The General Counsel argues that the Aiello Dairy rule should not be applied to
this case because the promise of benefit in connection with the institution of a job
classification System-lack of which was a major factor in aid of union organization-
was made by Respondent so close to the time set for the election that the Union
21 George Groh and Sons, 141 NLRB 931.
BERNEL FOAM PRODUCTS CO., INC. 1303
had no reasonable opportunity to make a choice between the two methods of estab-
lishing its position as majority representative-either by proceeding with the elec-
tion or by discontinuing that process and filing an unfair labor practice charge.
The acts of Respondent found herein to constitute unfair labor practices in viola-
tion of Section 8(a) (1) of the Act occurred, it is true, extremely close to the time
set for the election. It is also -true that some of them, as appears above, were not
so obviously unlawful that their establishment in a Board proceeding could have
been deemed to be a foregone conclusion. The difficulty with the General Coun-
sel's argument is that, as I read the Board decision in the Aiello case, the commis-
sion of unfair labor practices, other than the refusal to bargain, are not essential
elements underlying the rule. The Board, after stating the facts and outlining the
two procedures available for establishment of a Union's majority status, wrote (pp.
1367-1368):
Had the Union earlier filed its charge of refusal to bargain, the Board under
its long standing practice would not have conducted the representation election
until the charges were disposed of. Nor would the Board have accepted a
waiver of such a charge as sufficient reason for permitting the election to
proceed. A reason for this is that although either a representation proceeding
or an unfair labor practice proceeding alone might be, in the light of the par-
ticular circumstances, the procedure appropriate for establishment of the Union's
status, both cannot at once be appropriate because they are based on funda-
mentally different premises. Thus for the Board to proceed upon a representa-
tion petition requires the Board to find that a question of representation exists,
to be resolved by an election. On the other hand, a charge of unlawful re-
fusal to bargain under Section 8(a)(5) of the Act must allege in effect that
there is no question of representation and that the union involved is in fact
the exclusive representative, with whom the employer is legally required to
bargain. The bases of the two proceedings are thus mutually inconsistent.
Although in most of the cases in which the Aiello Dairy doctrine was applied there
were found to have been unfair labor practices under sections of the Act other than
8(a) (5), their presence, in my opinion, served only to establish a refusal to bargain-
of the Joy Silk Mills type-without which it would have been unnecessary to involve
the Aiello Dairy rule. As pointed out in Atlas Boot Manufacturing Co., Inc., 116
NLRB 565, 570-571) the election of remedy doctrine of Aiello Dairy is applicable
only to the choice of "inconsistent remedies . . . in an attempt to establish officially
the same result." Moreover, in none of the cases have I found any intimation that
the Aiello Dairy rule is applicable only in connection with refusals to bargain which
would otherwise be found violative of Section 8(a)(5) under the Joy Silk Mills
doctrine. In any event, the Union here had knowledge of Respondent's conduct
detrimental to its cause when it participated in the election.
It is true that the Board, in at least one case, failed to apply the Aiello Dairy
rule where it was, according to the dissenting Board Members, applicable.22 More-
over, in a recent case in which the Trial Examiner found no violation of Section
8(a)(5): (a) by application of the Aiello Dairy rule and (b) because there had
been no "clear and unequivocal demand for bargaining," a majority of the Board
stated that, in affirming the Trial Examiner's conclusion that there had been no
violation of Section 8(a) (5), they did "not rest their decision upon the principle laid
down in Aiello Dairy Farms, 110 NLRB 1365.1123 Nevertheless, I have no reason
to believe that it is not a subsisting rule of decision. Whatever may be my private
views, therefore, concerning the wisdom of such a rule in the administration of a
public, remedial statute, my duties and functions as a Trial Examiner of the Board
do not include the right to criticize or depart from it 24 Accordingly, I find that
Respondent did not violate Section 8(a)(5) of the Act and I recommend that the
complaint be dismissed to the extent that it so alleges.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices as set
forth in section III, above, occurring in connection with Respondent's operations
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 commerce and the free flow of commerce.
'Traders Oil Company of Houston, 119 NLRB 746, 755.
= Barker's East Main Corporation, 142 NLRB 1194.
24lnsurance Agents' International Union, AFL-CIO (The Prudential Insurance Com-
pany of America), 119 NLRB 768, 773.
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain conduct interfering with,
restraining , and coercing employees in the exercise of rights guaranteed in the Act
and constituting unfair labor practices affecting commerce , I shall recommend that
it cease and desist therefrom , and take certain affirmative action in order to ef-
fectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2 (2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By promises of benefit on November 30 and December 3, 1962, Respondent inter-
fered with , restrained , and coerced its employees in the exercise of rights guaranteed
by Section 7 of the Act, and thereby engaged in unfair labor practices within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
4. Respondents have not refused to bargain with the Union or otherwise engaged
in unfair labor practices as alleged in the complaint.
[Recommended Order omitted from publication.]
Rhodes-Holland Chevrolet Co. and Lodge 1049 of the Inter-
national Association of Machinists , AFL-CIO. Case No. 9-CA-
0889. May 4, 1964
DECISION AND ORDER
On December 24, 1963, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Decision. Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief.
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 Mem-
bers Leedom 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 brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
In finding that Respondent violated its obligation to bargain in
good faith, we, like the Trial Examiner, have not relied solely on the
positions taken by Respondent on substantive contract terms, a factor
which, standing alone, we agree might not have provided sufficient
basis for the violation found, but have considered that factor as simply
146 NLRB No. 156.