Cohen Bros. Fruit Co.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 88 (N.L.R.B. 1967)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cohen Bros . Fruit Company and General Drivers
and Dairy Employees Union Local #563, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica. Cases 30-CA-382 and 30-RC-408.
June 28,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 26, 1966, Trial Examiner Alvin
Lieberman issued his Decision in the above-entitled
proceedings, finding that Respondent had engaged
in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent did not engage in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. The Trial Examiner also found that
certain conduct of the Respondent had interfered
with an election held on April 19, 1966, and recom-
mended that the election be set aside and a second
election held. Thereafter, the General Counsel and
the Charging Party filed exceptions to the Trial Ex-
aminer's Decision, with supporting briefs,' and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
pow:,rs in connection with this case to a
three-member panel.
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 Examiner's Decision, the exceptions, the
briefs, and the entire record in this case, and hereby
adopts the findings,2 conclusions, and recommenda-
tions 3 of the Trial Examiner, except as modified
below.
This case involves events arising out of the
Union's organizational campaign at Respondent's
produce packaging and wholesale distribution plant
in Appleton, Wisconsin. On March 1, 1966, 9 of
Respondent's 15 nonsupervisory employees at-
tended a union meeting and signed authorization
cards. On March 14, the Union requested Respond-
ent to recognize and bargain with it as the majority
representative.4 The Union suggested that the
' The Charging Party's request for oral argument before the Board is
hereby denied as the record, the exceptions, and the briefs adequately
present the issues and positions of the parties
2 In the absence of exceptions thereto, we adopt pro forma the Trial Ex-
aminer's dismissal both of the Section 8 (a)(3) and ( 1) allegations concern-
ing the layoffof Forster, and of the 8(a)(l) allegation of a threat by Cohen,
on April 19, to close the business if the Union got in.
parties begin negotiations on March 23, at which
time it offered to prove its majority status through
a third party card check. On March 15, the Union
filed a representation petition with the Board, which
was served upon Respondent. On March 17,
Respondent's attorney wrote the Union that
Respondent would not meet with it:
As you know, it is not our policy to recommend
the institution of collective-bargaining
proceedings until the bargaining status of the
union has been determined. I presume you will
file a petition for recognition and that we can
give the matter consideration in due course.
The Union repeated its demand on March 30, when
the parties met to conclude a consent-election
agreement. Again, Respondent, through its attor-
ney, refused the demand. An election was held on
April 19, 1966, resulting in a tally of seven votes
for, and eight against, the Union, with one chal-
lenged ballot.
The Union filed both timely objections to the
conduct of the election and unfair labor practice
charges. A complaint was thereafter issued alleging
violations by Respondent of Section 8(a)(1) and (5)
of the Act, and the objections and complaint'
proceedings were consolidated for the purposes of
hearing. Upon the record of such hearing, the Trial
Examiner found that Respondent had violated Sec-
tion 8(a)(1) by threatening and coercively inter-
rogating employee Ramirez on three occasions in
late March and early April 1966. He also concluded
that by this conduct Respondent had interfered with
the employees' exercise of their free choice in the
election and recommended that the election be set
aside and a second election be held. He further
recommended, however, that the remaining 8(a)(1)
allegations and the allegation of violation of Section
8(a)(5) be dismissed.
1. We adopt the Trial Examiner's finding that
Respondent violated Section 8(a)(1) by interrogat-
ing and threatening Ramirez. Thus, the record dis-
closes that on March 18, Cohen, Respondent's pres-
ident, suggested to Ramirez that either he or em-
ployee Emory Plamann had started the Union.
Ramirez denied he was responsible and said he did
not know who was. In response to further inquiries
by Cohen, Ramirez said, however, that he found
out about the Union through a phone call inviting
him to attend a union meeting and that he attended
the meeting along with a majority of the other em-
ployees. He also told Cohen that one of the reasons
why he wanted a union was the low wages paid to
his wife, who was employed by Respondent in the
tomato packing department. On March 24, Cohen
3 We find no ment-in contentions by the General Counsel and the
Charging Party that various credibility findings of the Trial Examiner are
erroneous , for the clear preponderance of all the relevant evidence does
not demonstrate that the credibility findings are incorrect Standard Dry
Wall Products , Inc., 91 NLRB 544, enfd 188 F.2d 362 (C A. 3).
4 On March 17, two more employees signed authorization cards, bring-
ing the total to 11 out of 15
166 NLRB No. 2
COHEN BROS. FRUIT CO. 89
asked Ramirez how he would "survive the union"
and explained this remark by saying that "if the
union gets in, I can cut the tomato business ... and
sell the potato machines." [Emphasis supplied.]
Cohen also warned Ramirez, who had been driving
a preferred route to Green Bay for the previous 4
months, that he could "cut a trip ... to Green Bay
and one to the country" and "give it" to some em-
ployees who had greater seniority.
On a date shortly thereafter, Ramirez, returning
early from his delivery run, asked the foreman, who
was either loading or unloading tomatoes, if he
could help. The foreman replied that there was no
more work to be done that day. As Ramirez turned
to punch out, Cohen, who had been standing near-
by, said to him, " I'ou see Victor, there is no work
and it's all your fault." When asked what he meant,
Cohen said, "Well, you started the Union."
Ramirez protested this was untrue, and that he had
no reason to bring in a union . Cohen replied, "I
know you, you did it."
2. The General Counsel and Charging-Party ex-
cept to the Trial Examiner's failure to find that the
following conduct of Respondent violated Section
8(a)(1). As noted above, Cohen received the
Union's demand for recognition on March 15.
Early the next morning, Cohen called employee
Greening into his office. Cohen said to Greening
that he had heard the employees "wanted to go
union ," and when Greening replied affirmatively,
Cohen inquired if "it's one hundred percent?"
Greening answered he did not know, but that "quite
a few" employees had been "present at the meet-
ing." Cohen then asked "exactly who was there"
and named "the Reffke boys ... Amado [Garcia],
Victor [Ramirez], the girls, and Bud Plamann...."
Greening replied that all of them had attended
and then admitted, in response to Cohen's query,
that he had signed a union card.
That same day, Cohen approached Amado Gar-
cia and asked him if he had joined the Union. Gar-
cia's reply does not appear in the record. The con-
versation ended in less than a minute when Garcia
walked away.5
In concluding that neither conversation was coer-
cive, the Trial Examiner noted that Cohen, having
just received a bargaining demand, possessed a
legitimate reason for inquiring into his employees'
union activities, and did so, moreover, in objective
fashion without expressing any "animosity" toward
the Union. The Trial Exaiminer also took into ac-
count Cohen's friendship with Greening and the
limited scope and duration of Cohen's talk with
Garcia.
We have found that an employer's interrogation
concerning an employee's membership in a union
does not necessarily have a coercive impact upon
employees, if the employer takes certain precau-
tions.6 But Cohen did not do so. He failed to give
Garcia any reason for the inquiry, e.g., the receipt
of the Union's demand. He also failed to give either
Garcia or Greening assurances against reprisal and
an opportunity to refrain from answering the
questions. Furthermore, Cohen's inquiry of Green-
ing as to who attended the meeting went beyond
any privilege which arguably might have been
available here.7 In addition, we note that these in-
terrogations were followed shortly by the threats,
earlier discussed, directed at employee Ramirez, a
sequence which indicates Cohen's actual reason for
probing into details of his employees' concerted ac-
tivities. In the light of these facts, we find, contrary
to the Trial Examiner, that Respondent violated
Section 8(a)(1) of the Act by interrogating em-
ployees Garcia and Greening on March 16.
3. We turn now to a consideration of Respond-
ent's motive in refusing on March 17 to recognize
and bargain with the Union. The Trial Examiner
found, and we agree, that the Union had majority
status in an appropriate unit" as of March 14, the
date it requested recognition and bargaining, and
that Respondent refused to bargain. In his opinion,
however, Respondent's "minimal" 8(a)(1) conduct,
involving threats and interrogation of only 1 of 15
employees (Ramirez) and occurring in an environ-
ment free from any other expressions of employer
antiunion sentiment, did not justify an inference of
bad faith in Respondent's insistence upon an elec-
tion and rejection of the Union's bargaining de-
mand. For the reasons set forth below, we disagree
with the Trial Examiner's finding that Respondent
did not violate Section 8(a)(5) of the Act.
An employer may, like the Respondent, decline
to recognize a union and insist upon a Board elec-
tion if the employer is motivated in its refusal by a
good-faith doubt as to the union's representative
status in an appropriate unit. If, on the other hand,
the employer's refusal is motivated by a rejection of
the collective-bargaining principle or a desire to
gain time within which to undermine the union and
dissipate its majority, the refusal is violative of
8(a)(5): 9 Whether or not the General Counsel has
carried his burden of showing that a refusal to bar-
gain was not motivated by a good-faith doubt of
5 The Trial Examiner resolved the testimonial conflict between Cohen
and Garcia by crediting Garcia's testimony only to the extent it was un-
contradicted For the reasons set out by the Examiner, we adopt his
findings as to the conversation.
6 Blue Flash Express, Inc, 109 NLRB 591.
' We disagree with the Trial Examiner's view that since it was Greening
who brought up the subject of the union meeting, Cohen was free to
inquire into its particulars. It is evident from the record that Cohen's ini-
tial queries were particularly calculated to elicit from a friendly employee,
as in fact they did, specific information about the union sympathies and
activities of the other employees.
8 The appropriate unit consists of-
All employees of Cohen Bros . Fruit Company at its Appleton, Wiscon-
sin, location, but excluding office clerical employees , professional, sales
and managerial employees , guards , and supervisors as defined in the Act.
'Joy Silk Mills , Inc., 85 NLRB 1263, enfd . as modified on other
grounds 185 F.2d 732 (C.A.D.C.), cert. dewed 341 U S. 914.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority but by bad faith "of necessity must be
made in the light of all relevant circumstances." 10
The instant case presents the problem in a typical
context wherein the question is one of the proper in-
ferences to be drawn from independent unfair labor
practices.
We consider first the fact that Respondent
learned by its interrogation of Greening that the
Union did indeed have the support of majority of its
employees who attended the union meeting. In a
literal sense then, Respondent, could hardly have
doubted-and in fact Respondent never
questioned-the Union's majority status. Its
motivation in refusing to bargain was in our view
evidenced by its subsequent efforts to undermine
the Union's support.
We disagree with the Trial Examiner's charac-
terization of Cohen's threats to Ramirez as
"minimal" violations of Section 8(a)(1). Threats of
loss of work and income are a type of threat likely
to have the most substantial impact upon employee
attitudes and reactions. By their nature they may
justifiably be regarded as serious violations of the
Act. Such threats, although directed at no more
than 2 employees in a unit of 15,11 may well be suffi-
ciently pervasive in their impact to prevent a fair
election and to undermine a union's support. These
threats thus are inconsistent with Respondent's
professed desire to resolve the Union's status in an
election and indicate a rejection of the
collective-bargaining principle. Moreover, while
threats of reprisal may well, and normally do, affect
persons other than those directly threatened, we
note in the present case that if Respondent's threats
succeeded in dissuading only Ramirez and his wife
from voting for the Union, Respondent was respon-
sible for turning what otherwise would have been a
9-6 union victory into the 7-8 loss which the elec-
tion results disclose.
In addition to the interrogation and threats to
Ramirez which the Trial Examiner found to be
violative of Section 8(a)(1), we take into considera-
tion the interrogations of Greening and Garcia
which, in the circumstances of this case, we have
found to be unlawful. We believe that these viola-
tions also tended to undermine the Union's sup-
port 12 and are similarly probative of Respondent's
motivation in refusing to bargain. Upon the entire
record we find that the General Counsel has carried
his burden of demonstrating that Respondent's
refusal to bargain with the Union was not motivated
by a good-faith doubt of the Union's majority status
in an appropriate unit . We find that Respondent's
refusal to bargain and its insistence upon an election
was in bad faith in that Respondent was motivated
by a rejection of the collective-bargaining principle
and that it sought to undermine the Union's majori-
ty status. Respondent thereby violated Section
8(a)(5) and (1) of the Act.
Since we shall issue a bargaining order to remedy
Respondent's unlawful conduct in this regard, we
do not adopt the Trial Examiner's recommendation,
noted above, that a new election be directed. In-
stead, as no current question concerning represen-
tation exists, we shall dismiss the petition in Case
30-RC-408 and vacate all proceedings held in con-
nection therewith.
CONCLUSIONS OF LAW
We adopt only the Trial Examiner's conclusions
of law Nos. I and 2, and we make the following ad-
ditional conclusions of law:
3. The Respondent violated Section 8(a)(1) of
the Act by threatening its employees with reprisals
if the Union became their representatives and by in-
terrogating its employees concerning their pro-
tected activities and those of fellow employees.
4. At all times since March 15, 1966, the Union
has been the exclusive bargaining representative of
all the employees in the following unit.
All employees of Cohen Bros. Fruit Company at
its Appleton, Wisconsin, location, but excluding of-
fice clerical employees, professional, sales, and
managerial employees, guards, and supervisors as
defined in the Act.
5. Respondent has engaged in and was engaging
in an unfair labor practice within the meaning of
Section 8(a)(5) and (1) of the Act by refusing on and
after March 17, 1966, to bargain collectively with
the Union.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
7. Respondent did not engage in unfair labor
practices within the meaning of Section 8(a)(3) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Cohen Bros. Fruit Company, Appleton,
Aaron Brothers of California, 158 NLRB 1077
11 Cohen 's threat to Ramirez to cut the tomato business was obviously
a threat or reprisal directed at the wife of Ramirez. Consequently, we find
that Cohen 's threats to Ramirez were immediately directed , not merely at
one, but at two of the unit employees
12 We note that altogether four employees were involved in Respond-
ent's 8(a)(1) conduct and that although I I employees signed cards, only
7 employees voted for the Union in the election In view of the size of the
unit (15), the 8(a)(1) conduct found herein is neither minimal nor insignifi-
cant
COHEN BROS . FRUIT CO. 91
Wisconsin, its officers, agents, successors,13 and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concern-
ing their or other employees' activities in support
of, attitudes toward, or membership in General
Drivers and Dairy Employees Union Local #563,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization.
(b) Threatening employees with reduction of
work, loss of overtime, or any other form of reprisal
for supporting, engaging in activities on behalf of,
or voting for General Drivers and Dairy Employees
Union Local #563, affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other labor organization.
(c) Refusing, upon request , to recognize and bar-
gain collectively with General Drivers and Dairy
Employees Union Local #563, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as
the exclusive representative of its employees with
respect to rates of pay, wages, hours of employ-
ment , and other terms and conditions of employ-
ment in the following appropriate unit:
All employees of Cohen Bros. Fruit Company at
its Appleton, Wisconsin, location, but excluding of-
fice clerical employees, professional, sales, and
managerial employees, guards, and supervisors as
defined in the Act.
(d) In any like or related manner interfering
with, restraining, or coercing employees in their
right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, or to engage
in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection
as 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 Sec-
tion 8(a)(3) of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with
General Drivers and Dairy Employees Union
Local #563, affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the ex-
clusive bargaining representative of all employees
in the aforesaid appropriate unit , with respect to the
rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its premises in Appleton , Wisconsin,
copies of the attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the Re-
gional Director for Region 30, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing,
within 10 days from the date of this Decision, what
steps have been taken to comply herewith.
- IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges un-
fair labor practices not specifically found herein.
IT IS FURTHER ORDERED that the Petition for Cer-
tification of Representative, filed in Case
30-RC-408, be, and it hereby is, dismissed, and
that all prior proceedings held thereunder be, and
they hereby are, vacated.
13 Subsequent to the issuance of the Trial Examiner 's Decision, the
General Counsel filed a motion requesting that the record be reopened for
the purpose of taking additional evidence looking toward the joinder of
Cohen & Fielkow , Inc., as a party respondent herein and making that new
respondent subject to any remedial order to be entered herein. The motion
alleged that , on or about January 1, 1967 , Cohen & Fielkow, Inc., became
the "legal successor" to Cohen Bros. Fruit Company, the instant Respond-
ent. The motion further alleged that, since that date, the alleged succes-
sor has continued to operate the business of the Respondent, employing
substantially the same group of employees engaged in performing the
same duties as when they were employed by Respondent . Shortly after
the motion was filed, the Board undertook certain preliminary steps to
determine the propriety of granting the motion to remand . Upon further
deliberation , however , and in light of the circumstances of this case, it
seems more appropriate to defer consideration of the question of succes-
sorship until such time as it may appear that additional proceedings have
become necessary . Accordingly, the motion is denied . It should be noted
that on such facts as are alleged in the General Counsel's motion, a suc-
cessor employer will ordinarily be held responsible for assuming the bar-
gaining obligations of the predecessor employer. See , e.g., Johnson Ready
Mix Co., 142 NLRB 437; Maintenance, Incorporated, 148 NLRB 1299.
Furthermore , a successor employer will , under certain circumstances, be
held responsible for remedying the unfair labor practices of its predeces-
sors. Perma Vinyl Corporation , 164 NLRB 968. It is not apparent from
the moving papers that such circumstances exist in the present case.
Should this issue of successorship later arise, however, the General Coun-
sel may initiate further proceedings to establish the responsibility of the al-
leged successor to comply with the affirmative remedial provisions of the
Order here issued.
14 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 Decree of the United States Court of Appeals, En-
forcing an Order."
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 NOT coercively interrogate any em-
ployee about his or any other employee's
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desires toward any union; or whether he or any
other employee has signed a card designating
or authorizing any union to act as his or any
other employee's collective-bargaining
representative; or whether he or any other em-
ployee has become a member of any union; or
whether he or any other employee has attended
a union meeting.
WE WILL NOT threaten any employee with
reduction of work, loss of overtime, or any
other form of reprisal, for supporting any
union, or for attending a meeting of any union,
or for joining or remaining a member of any
union, or for voting for or against any union in
an election conducted by the National Labor
Relations Board.
WE WILL NOT refuse to recognize and bar-
gain collectively, upon request, with the
General Drivers and Dairy Employees Union
Local #563, affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of our employees in
the appropriate unit with respect to rates of
pay, wages, hours of employment, and other
terms and conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to form labor organizations, to join
or assist the Union or any other labor organiza-
tions, to bargain collectively through represent-
atives of their own choosing, and to engage in
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from any or all such ac-
tivities, except to the extent that such right may
be affected by an agreement requiring member-
ship in a labor organization as a condition of
employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL, upon request, bargain collectively
with the General Drivers and Dairy Em-
ployees Union Local #563, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining represent-
ative of all employees in the appropriate unit,
with respect to the rates of pay, wages, hours
of employment, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The appropriate unit is:
All employees employed by us at
Appleton, Wisconsin, excluding office
clerical employees, professional, sales,
and managerial employees, guards, and
supervisors as defined in the Act.
All our employees are free to become, remain, or
refrain from becoming or remaining, members of
General Drivers and Dairy Employees Union
Local #563, affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any
other union, except to the extent that this right may
be affected by the provisions of the National Labor
Relations Act.
Dated By
COHEN BROS. FRUIT
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Second Floor, Commerce Building, 744
North Fourth Street, Milwaukee, Wisconsin 53203,
Telephone 272-3866.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner : On April 21,
1966,1 General Drivers and Dairy Employees Union
Local #563, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America
(herein called the Union), filed a charge in Case
30-CA-382 alleging that Respondent had engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended (herein called the Act). On the same day, the
Union filed timely objections to conduct affecting the
results of an election held in Case 30-RC-408 on April
19, among Respondent's employees pursuant to a
representation petition filed by the Union on March 15,
and a Stipulation for Certification Upon Consent Elec-
tion .2 On May 27, the Regional Director issued a com-
plaint on the Union 's charge.
On May 31 , the Regional Director reported on his in-
vestigation of the Union's objections to the election. Con-
cluding that the Union's objections raised "substantial is-
sues with respect to credibility " which could "most ex-
peditiously be resolved by ... a hearing" and noting that
"the allegations of the objections are substantially
similar" to those of the complaint , the Regional Director
recommended that the representation case (30-RC-408)
and the complaint case (30-CA-382) "be consolidated.
.. for purposes of hearing, ruling , and decision by a Trial
Examiner." The National Labor Relations Board (herein
called the Board) adopted the Regional Director 's recom-
mendation and on June 22 the consolidation was ordered.
The trial in this consolidated proceeding , with all
parties represented by counsel , was held before me in
' All dates mentioned in this Decision relate to 1966.
z A revised tally of ballots issued by the Director of Region 30 of the
National Labor Relations Board (herein called the Regional Director)
showed that seven ballots were cast for the Union, eight against the
Union, and one ballot was challenged.
COHEN BROS. FRUIT CO. 93
Appleton, Wisconsin, on July 25, 26, and 27. The issues
litigated were whether Respondent had violated Section
8(a)(1), (3), and (5) of the Act,3 and whether Respondent
had engaged in conduct warranting the setting aside of the
election. More particularly, the questions for decision are
as follows:
1. Did Respondent independently violate Section
8(a)(1) of the Act by interrogating and threatening em-
ployees?
2. Did Respondent violate Section 8(a)(3) and (1) of
the Act by laying off an employee?
3. Did Respondent violate Section 8(a)(5) and (1) of
the Act by refusing to recognize or bargain with the
Union?
4. Is Theodore Reffke, Sr., who appears to be in
charge of Respondent's tomato packaging department, a
supervisor within the meaning of the Act.4
5, Should the Union's objections to conduct affecting
the results of the election which was held on April 19, be
sustained and the election set aside?5
Upon the entire record, upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and able
briefs submitted by all parties, I make the following:
FINDINGS OF FACTS
1. RESPONDENT'S BUSINESS
Respondent, a Wisconsin corporation, whose principal
office and place of business is located at Appleton,
Wisconsin, is engaged there and elsewhere in the State of
Wisconsin7 in the packaging and wholesale distribution of
fruits and vegetables. During 1965, a representative
period, Respondent purchased and received at its
Appleton premises products valued at in excess of
$50,000 from suppliers located outside the State of
Wisconsin. Accordingly, I find that Respondent is en-
gaged in commerce within the meaning of the Act and
that the assertion of jurisdiction over this matter by the
Board is warranted. Siemons Mailing Service, 122
NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with the events follow-
ing the institution by the Union of a campaign to establish
itself as the collective-bargaining representative of
Respondent's employees which culminated in its defeat
in a representation election on April 19. Among these
were the Union's demand for, and Respondent's refusal
of, recognition; Respondent's interrogation of employees
and its threatened curtailment of its business; and the
layoff of an employee.
The General Counsel and the Unions contend that
Respondent's refusal to recognize the Union pursuant to
its demand was based upon its determination to gain time
to undermine the Union, hence in violation of Section
8(a)(5) of the Act. In support of this argument the
General Counsel points to Respondent's interrogation of,
and threats to, employees, which he alleges were violative
of Section 8(a)(1) of the Act, and its layoff of an employee
which the General Counsel urges was discriminatory and,
accordingly, in contravention of Section 8(a)(3) of the
Act.
Taking issue with the General Counsel on all points,
Respondent argues that because the Union filed its
representation petition on the day after the demand for
recognition was made it was entitled to await the outcome
of the election before deciding whether to recognize the
Union. Respondent further argues that it did not inter-
rogate or threaten employees in violation of Section
8(a)(1) of the Act, and, while admitting that it laid off an
employee, Respondent asserts that the layoff was neces-
sitated solely by adverse business conditions.
With respect to the election, the Union contends that
it should be set aside because, inter alia, of Respondent's
conduct after the representation petition was filed which
it, like the General Counsel, claims was independently
violative of Section 8(a)(1) of the Act. Respondent, on the
other hand, argues that the election was fairly conducted
and that no reason exists for setting it aside.
B. Facts and Conclusions Relating to the Supervisory
Status of Theodore Reffke, Sr."
Reffke, Senior, at all material times was in charge of
Respondent 's tomato packaging department . Although
many witnesses testified concerning the functions, duties,
and authority of Reffke, Senior , the issue here under con-
sideration can be resolved on the basis of the testimony
which he, himself, gave.
Thus, Reffke, Senior, interviews and hires applicants
for full- and part-time employment in the tomato packag-
ing department . He has discharged at least two em-
ployees. Furthermore , without consultation with any
other representative of Respondent and depending on the
number of orders on hand Reffke , Senior, determines
how many hours employees in the tomato packaging de-
partment should work each day and , when necessary,
authorizes and directs overtime work.
On the foregoing I find that Reffke, Senior , in the exer-
cise of independent judgment hires, discharges, and
3 During the trial the complaint was amended by adding a new para-
graph, numbered 11, alleging that Respondent had violated Section 8(a)(3)
of the Act.
4 This issue is material only because of the General Counsel's claim
that Reffke, Senior, carried threats from Respondent's president to em-
ployees in the tomato packaging department to the effect that Respondent
would sell its equipment in that department upon the Union 's success in
obtaining recognition.
5 In view of the conclusion of the Regional Director, adopted by the
Board , that the "allegations of the objections are substantially similar" to
those of the complaint, separate findings of fact with respect to the objec-
tions will not be made. Instead the findings of fact referring to the com-
plaint will relate to the objections insofar as they are applicable.
8 The motion to dismiss the complaint made by Respondent at the close
of the trial is disposed of in accordance with the findings and conclusions
set forth in this Decision.
' Respondent also has a place of business at Fond du Lad, Wisconsin.
The facts in this case , however, relate only to Respondent 's Appleton
plant.
B As the contentions of the General Counsel and the Union are similar
in almost every respect they will, except where otherwise noted,'be
referred to hereinafter as the General Counsel' s contentions.
9 The General Counsel claims that Reffke , Senior , is, and Respondent
contends that he is not, a supervisor within the meaning of the Act.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibly directs employees . Accordingly, I,conclude
that his supervisory status has been established. Ohio
Power Co. v. N.L.R.B., 176 F.2d 385, 387 (C.A. 6).
C. Facts Concerning Respondent's Alleged Independ-
ent Violations of Section 8(a)(1) of the Act
The Union began organizing Respondent's employees
on March 1. On March 14, in a letter to Respondent, the
Union stated that it represented a majority of Respond-
ent's employees and demanded "recognition for pur-
poses of collective bargaining as the exclusive representa-
tive of such employees." On the next day, the Union filed
its representation petition. Respondent received the
Union's letter on March 15, and was served with the
Union's petition on March 16. The General Counsel
claims that thereafter, on several occasions, Respondent
committed independent violations of Section 8(a)(1) of
the Act by way of threats and interrogation. In point of
time the first of these occurred, according to the General
Counsel, on March 15 or 16, and involved a group of em-
ployees who work in Respondent's tomato packaging de-
partment. Carol Forster testified that on the day in
question, Reffke, Senior, who is in charge of Respond-
ent's tomato packaging department and who I have
concluded is a supervisor, told her and two other em-
ployees, Helen Emmer and Lena Hameister, that he had
just been informed by Frank Cohen, Respondent's pre-
sident, that "if this union goes through [Cohen] wouldn't
need us girls any more, that they were going to sell the to-
mato machines ... they wouldn't put out onions ... and
that they could cut down on the truckdrivers."
Emmer and Hameister, who Forster testified were
present at the time, both denied ever having heard Reffke,
Senior, make the statement attributed to him by Forster.
Reffke, Senior, denied that Cohen said to him, and that he
had told Forster that Cohen had stated, that the tomato
packaging machines would be sold "if the union came in."
Finally, Cohen denied ever making such a remark to
Reffke, Senior. In the face of these denials, and taking
into account the demeanor of all the witnesses as they
testified concerning this matter I do not credit Forster's
uncorroborated testimony.10 Accordingly, I find that the
General Counsel has not established that Cohen told
Reffke, Senior, that upon the advent of the Union he
would sell the tomato packaging machines and discon-
tinue the employment of the girls in that department or,
regardless of whether Cohen had made such a statement
to Reffke, Senior, that Reffke, Senior, told Forster and
other employees in the tomato packaging department that
Cohen had said this to him.
The next incident alleged to have been violative of Sec-
tion 8(a)(1) of the Act involved Amado Garcia, another
employee of Respondent. Garcia first testified" that on
March 16, the day following Respondent's receipt of the
Union's demand for recognition and the day on which it
was served with the Union 's representation petition, he
was asked by Cohen, Respondent 's president , who had
joined the Union , whether he, himself, had joined the
Union , and "who goes in there." Shortly after having
given the foregoing testimony Garcia reversed himself
and stated that Cohen did not ask "any questions con-
cerning the union and ... other employees."12
The General Counsel also asked Garcia if he recalled
whether Cohen had inquired , during this conversation,
about his being "against the company ." Garcia originally
gave a negative reply to this question . The General Coun-
sel, not being satisfied with this answer, asked the
question again . This time Garcia stated that he didn't un-
derstand it. Finally, the question having been put to Gar-
cia in virtually the same words a third time , Garcia
testified that he remembered Cohen's inquiry in this re-
gard.
Garcia further testified that this conversation lasted
less than a minute and that duringg its course Cohen did
not make any derogatory statement with respect to the
Union.13
As noted above (fn. 11), part of Garcia's testimony was
given through the medium of a Spanish interpreter. While
being so examined , Garcia testified that "at times [he
has] difficulty in understanding Mr. Cohen."
In view of Garcia's sparse knowledge of English, his
admission that he sometimes had difficulty in understand-
ing Cohen , and his contradictory and vacillating
testimony covering his conversation with Cohen on
March 16, I will credit only so much of Garcia's version
of his interrogation on that occasion as has not been con-
tradicted . Accordingly , I find that on March 16 , Cohen,
during a conversation with Garcia , the duration of which
was less than a minute, asked Garcia only whether he
had joined the Union.
Gordon Greening and Victor Ramirez14 are also em-
ployed by Respondent . Both are truckdrivers. The
General Counsel claims that Respondent further violated
Section 8 (a)(1) of the Act during a conversation on March
16, between Cohen, its president , and Greening , and dur-
ing a series of conversations starting on March 18,
between Cohen and Ramirez.
Greening has worked for Respondent since 1953. He
is one of Respondent 's senior employees and his relation-
ship with Cohen appears to be a very friendly one.15
On March 16 , Cohen stated to Greening that he had
heard that the employees "wanted to go union," and
asked whether "it 's a hundred percent." Greening replied
that although quite a few employees had been present at
a union meeting , he did not know whether all favored the
Union . Greening having opened the subject of the meet-
ing, Cohen inquired as to whether certain employees had
attended and Greening answered that they had. During
this conversation Cohen also asked Greening whether he
had signed a union card . Greening told Cohen that he had
done so.16
10 In assessing the credibility of Emmer and Hameister I have duly con-
sidered the fact that they are both sisters of Reffke, Senior
11 Garcia's command of English is limited , and although English was
the language used at the commencement of his examination , his testimony
was completed with the aid of a Spanish interpreter
12 Cohen admitted asking Garcia only whether he had joined the Union.
13 This portion of Garcia's examination was conducted in English.
14 Ramirez ' wife works in Respondent 's tomato packaging department.
is Greening testified, in this regard, that "over the years [he and Cohen
had] been somewhat close"; that "from time to time [Cohen had] come
to his assistance financially"; and that, as Greening put it, "I believe I'd
come to his too." ,
16 These findings are based on Greening's credible testimony. Although
Cohen denied , generally, talking to Respondent's employees concerning
the Union and specifically denied telling any employee that work was
"slow ... because he started the union," he admitted asking Garcia
whether he had joined the Union, admitted asked Greening to "tell [him]
what's going on," and admitted "maybe" asking other employees about a
union meeting but pleaded an inability to remember details In view of the
inconsistency between Cohen 's general denial and his admissions and par-
tial admissions , and his demeanor while testifying with respect to this
phase of the case, I find his denials unpersuasive and will not credit them
unless corroborated by credible evidence.
COHEN BROS. FRUIT CO.
The record contains evidence of two other conversa-
tions concerning the Union between Cohen and
Greening.17 The first occurred at an unspecified time
between the filing of the Union's representation petition
and the date of the election. On the date in question
Greening had left his truck at a garage to have a flat tire
repaired and was being driven back to Respondent's plant
by Cohen. As Cohen credibly testified, he took advantage
of the occasion to discuss with Greening a rumor that
Greening intended to quit his employment with Respond-
ent and told him: "I want you to stick with me, and re-
gardless, if it goes union or not union , thats up to the
majority. I am still wanting to be your friend, and I want
you to stay on with me."
The second conversation, in a somewhat similar vein,
between Cohen and Greening took place on April 19, the
day of the election, just prior to the time Greening cast his
ballot. As related by Greening, while in Cohen's office for
the purpose of turning in his delivery tickets Cohen said
to him "no matter how the election turns out, we'll always
be friends, but I think you owe me a No vote."
Greening further testified the he never heard Cohen
make any derogatory statement with respect to the
Union; that he never heard Cohen promise benefits to
any employee conditioned upon his rejection of the
Union; and that he never heard Cohen threaten to reduce
the hours of work of any employee if he voted for, or
joined, the Union.
The first of the conversations between Cohen, Respond-
ent's president, and Ramirez, claimed by the General
Counsel to have been violative of Section 8(a)(1) of the
Act, occurred on March 18.111 On this date, Cohen asked
Ramirez "who started the union" and suggested that it
was either Ramirez or Emory Plamann , another em-
ployee. When Ramirez denied that he had done so and
professed ignorance as to who had, Cohen inquired as to
how he "found out about the union." Ramirez replied that
he attended a meeting of the Union after receiving a
telephone call about it and found a majority of the em-
ployees there.
On March 24, Cohen and Ramirez had another conver-
sation concerning the Union. On this occasion Cohen
asked Ramirez how he would "survive the union." When
requested by Ramirez to explain this cryptic remark,
Cohen stated that "if the union gets in [he could] cut the
tomato business . . . and sell the tomato machines."
Cohen then asked Ramirez whether he was "going to the
union for ... seniority." Upon receiving an affirmative
response, Cohen told Ramirez that Respondent had em-
ployees who were greatly senior to him and that he,
Cohen, could "cut a trip to Green Bay and one to the
country and give it to them."19
17 The General Counsel does not contend that either of these conversa-
tions were violative of the Act, but both , in my opinion , bear upon the
question of whether Cohen's interrogation of Greening on March 16 was
coercive.
18 The findings concerning Cohen 's conversations with Ramirez about
the Union are based on testimony given by Ramirez , who by his demeanor
impressed me as being a credible and truthful witness. Not only was I
favorably impressed by Ramirez ' demeanor, but I have also taken into ac-
count in assessing his testimony that at the time of the trial he was in
Respondent 's employ and therefore was, in a sense , testifying under peril
of reprisal . See Georgia Rug Mill, 131 NLRB 1304, 1305, modified on
other grounds 308 F. 2d 89 (C.A. 5).
19 At the time in question Ramirez was regularly driving to Green Bay,
Wisconsin , and had been doing so for about 5 months . Before that, he
drove the "country" route ; i.e., he serviced Respondent 's customers
located in the smaller "country" towns.
95
The last conversation between Cohen and Ramirez in
which the General Counsel contends Respondent vio-
lated Section 8(a)(1) of the Act occurred toward the end
of March, or beginning of April.20 On the date in
question, Ramirez had come back to Respondent's plant
about 11:45 a.m. after making his deliveries. Customari-
ly, upon returning to Respondent's plant following the
completion of his deliveries Ramirez did no additional
work. He would normally "punch out" and wait for his
wife, who generally finished her work about noon.
On the occasion under consideration several em-
ployees were loading or unloading tomatoes when
Ramirez arrived at Respondent's premises. Hoping to oc-
cupy himself gainfully while waiting for his wife,
Ramirez, instead of "punching out," as he usually did,
asked Respondent's foreman whether he could assist in
that work. The foreman, however, told Ramirez, in es-
sence, that there was nothing further to be done.21
As Ramirez turned away from the foreman, Cohen,
Respondent's president, who, although there, had not par-
ticipated in the conversation between Ramirez and the
foreman, remarked to Ramirez "You see Victor, there is
no work and its all your fault." Upon being asked what he
meant by this, Cohen said, "Well you started the
Union. `22
The last incident claimed to have been violative of Sec-
tion 8(a)(1) of the Act occurred on April 19,23 the day on
which the representation election was conducted among
Respondent's employees. Shortly before the polls closed
Peter Succa, a representative of the Appleton Building
Trades Council (herein call Trades Council), came to
Respondent's plant.24 While waiting for the end of the
balloting, Succa, Cohen, Respondent's president, Arthur
Schaffer, one of its employees, and Reffke, Senior, whom
I have found to be a supervisor, gathered in Respondent's
warehouse and talked. During the course of their conver-
sation, Succa testified, Cohen said in a voice louder than
his normal tone "if a union gets in, I'll lock my doors, my
son and 1 will run it, I'll be G-d- if I'll let any . . . Mex-
ican telling me how to run my business." Succa further
testified that as Cohen made this statement Leona Co-
onen, one of Respondent's employees, was about 20 to 25
feet away and, in his opinion, was in a position to hear
what Cohen said.
Cohen denied making the statement attributed to him
by Succa. Schaffer, who by his demeanor impressed me
as being a very truthful witness, testified that the conver-
sation in question related only to personal matters; that
the Union was not mentioned at all by anyone present;
and, specifically, that Cohen did not make any derogatory
statement with respect to any employee, nor did he make
any "comment ... against the union." Coonen testified
20 Much uncertainty was displayed by Ramirez with respect to the date
of this conversation. From the context of Ramirez' entire testimony, how-
ever, I find that it took place at about the time indicated in the text
21 Ramirez admitted, and insofar as it may be material I find, that the
work in question had, in fact, been completed at the time Ramirez made
his request.
22 As noted above (fn. 16) Cohen denied telling any employee that work
"was slow .. . because [he ] started the union." Insofar as this denial may
relate to my findings with respect to the incident here under discussion I
do not credit it for the reason set forth in fn. 16
23 The Union, alone , urges the violative nature of this event
24 The Union is not an affiliate of the Trades Council and Succa was not
present at Respondent's plant as a representative of either the Union or
the Trades Council. As Succa put it, he had heard about the election and
was "curious as to [its] outcome."
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that as she entered Respondent's warehouse on the day
of the election she saw Cohen at the door; that they
greeted each other; and that she did not hear Cohen say
anything else while she was in the warehouse.
Unlike Schaffer, Succa's bearing while on the witness
stand did not strike me as that of a witness determined to
tell the truth in all respects. On the contrary, his
demeanor was such that I am compelled to discredit his
testimony concerning the statements which he said
Cohen made as to locking Respondent's doors and with
regard to Respondent's Mexican employees. Further-
more, and demeanor aside, Cohen denied making the
statement ascribed to him by Succa and this denial was
corroborated by Schaffer, who, according to Succa, was
in Cohen's presence when he allegedly made the state-
ments in question, and by Coonen, who, Succa testified,
was within hearing distance of Cohen's voice. Cohen's
denials being thus corroborated are credited.25
Accordingly, I reject Succa's testimony concerning
Cohen's remarks here under discussion as being un-
worthy of belief and I specifically find that Cohen did not
make them.
Before ending this discussion of the facts concerning
Respondent's alleged independent violations of Section
8(a)(1) of the Act I find that, except with respect to Vic-
tor Ramirez, a truckdriver employed by Respondent,
neither Cohen, respondent's president, nor any other su-
pervisor or representative of Respondent made any
derogatory remarks concerning the Union to, or
threatened, any employee with reprisal for joining, sup-
porting, or voting for the Union. I further find, again ex-
cepting Victor Ramirez, that neither Cohen, nor any
other supervisor or representative of Respondent,
promised benefits to any employee to induce him to reject
or refrain from supporting the Union.L6
D. Concluding Findings as to Respondent's Alleged In-
dependent Violations of Section 8(a) (1) of the Act
The General Counsel and the Union contend that
Respondent violated Section 8(a)(1) of the Act by its in-
terrogation of, and threats to, employees. Summing up the
facts in this regard, I have found that on March 16, the
day on which the Union's representation petition was
served upon Respondent and the day following its receipt
of the Union's recognition demand, Cohen, Respondent's
president, interrogated two employees, Garcia and
Greening, and that thereafter and prior to the election,
Cohen, on several occasions, interrogated and threatened
a third employee, Victor Ramirez.
Section 8(a)(1) of the Act is violated by an employer
who engages in conduct which, in the language of the
statute, operates "to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in sec-
tion 7." Interrogation of employees as to their activities,
or those of other employees, on behalf of a union con-
travenes Section 8(a)(1) of the Act only when it is coer-
cive. Blue Flash Express, Inc., 109 NLRB 591. On the
other hand, threats of economic reprisal for supporting a
union are, in and of themselves, coercive, and hence
violative of Section 8(a)(1) of the Act. Hendrix Manufac-
turing Company, Inc. v. N.L.R.B., 321 F.2d 100, 105
(C. A. 5).
Cohen's interrogation of Garcia, as I have found, lasted
less than a minute and consisted only of one question;
namely, whether Garcia had joined the Union. On the
same day Cohen asked Greening, who enjoyed a very
friendly relationship with Cohen, whether he had signed
an authorization card, whether all of Respondent's em-
ployees favored the Union, and whether certain em-
ployees had attended a union meeting.
Sequentially, Cohen's conversations with Garcia and
Greening followed hard on the heels of Respondent's
receipt of the Union's bargaining demand, which included
a claim that it represented a majority of Respondent's em-
ployees, and petition. At no time during Cohen's separate
talks on March 16, with Garcia and Greening, did Cohen
express animosity toward the Union and there is nothing
within the four corners of those conversations from which
it can be inferred that such a disposition on Cohen's part
was conveyed to the employees in question. In fact, on
two other occasions, as I have found, within the period
here under consideration; i.e., between Respondent's
receipt of the Union's bargaining demand and petition
and the conduct of the election, Cohen reassured Green-
ing that regardless of the outcome of the election they
would still be friends, and on one of these Cohen impor-
tuned Greening to remain in Respondent's employ.
Under these circumstances and on the record before
me, I cannot find that Cohen's questioning of either Gar-
cia or Greening was coercive. Bernel Foam Products
Co., Inc., 146 NLRB 1277, 1278, 1298; N.L.R.B. v.
Chicago Perforating Company, 346 F.2d 233, 236 (C.A.
7). Accordingly, I conclude that Respondent did not vio-
late Section 8(a)(1) of the Act in connection with the in-
terrogation of Garcia and Greening. I will, therefore,
recommend that paragraph 5(a) of the complaint be
dismissed.
A different result is required, however, with respect to
Cohen's interrogation of, and threats to, Ramirez. The
threats were intrinsically coercive and imparted a coer-
cive nature to the interrogation. Continental Motors,
Inc., 145 NLRB 1075, 1076, 1079-80; N.L.R.B. v.
General Shoe Corporation, 207 F.2d 598 (C.A. 6). Ac-
cordingly, I conclude that Respondent independently vio-
lated Section 8(a)(l) of the Act by its conduct with
respect to Ramirez.
E. Facts Concerning Respondent's Alleged Violation of
Section 8((a)(3) of the Act
Carol Jean Forster, whose layoff is alleged in the
amended complaint 27 as having been violative of Sec-
tion 8(a)(3) of the Act,26 was hired by Respondent in or
about May 1964, and assigned to work in its tomato
packaging department. She was laid off on March 19, on
which date she was, with the possible exception of
Leonor Ramirez, the most junior employee in that depart-
25 I have earlier stated (fn 16) that I would credit Cohen's testimony
with respect to this phase of the case when corroborated by credible
evidence.
26 These findings are based on credible testimony given by Amado Gar-
cia, Gordon Greening, Carol Forster, Emory Plamann, Leona Coonen,
Theodore Reffke, Jr., Donald Reffke, Arthur Schaffer, Leonor Ramirez,
Lena Hameister, Reinhart Wichman, Helen Emmer, Edward J. Binsfield,
and Leo Eggener The foregoing people together with Victor Ramirez
constitute Respondent 's entire employee complement.
2' See fn. 3.
28 As noted above, Respondent contends that Forster was laid off
because of adverse business conditions.
COHEN BROS. FRUIT CO.
ment.2s She returned to work on April 9, and was still in
Respondent's employ at the time of the trial.30
Prior to Forster's layoff she had signed a card designat-
ing the Union as her collective-bargaining representative.
She also attended at least one of its meetings.'311 find that
this was the extent of the union activity engaged in by
Forster before she was laid off.
Theodore Reffke, Jr., an employee of Respondent,
who, like Forster, had signed an authorization card,
testified, without in any way fixing the time, that on
several occasions Forster "threw ... in [his] face that
[he] was going to get a raise if [he] voted [against the
Union]" and that he had told his father, Theodore
Reffke, Sr., whom I have found to be a supervisor, of this.
Forster denied ever having stated to Reffke, Junior, that
he had been promised, or would be given, a raise if he
voted against the Union. Despite Forster's denial, the
General Counsel would have me find, notwithstanding
the absence of testimony as to the time of these events,
that they actually occurred; that they took place prior to
Forster's layoff; that Forster was, in this connection
"prosletizing [sic] for the Union"; and that Respondent
was chargeable with knowledge of this activity on behalf
of the Union by Forster because Reffke, Junior, had in-
formed his father of his encounters with Forster.
Forster's denial aside, and assuming the truth of the
testimony given by Reffke, Junior, lacking evidence as to
the time of these events, I cannot find that they occurred
before Forster's layoff. Not being able to make this find-
ing, findings as to the character of Forster's conduct in
this regard and as to Respondent's knowledge become
immaterial.
In view of Respondent's contention that it laid Forster
off because of adverse business conditions findings must
be made concerning the state of Respondent's business at
the time of Forster's layoff and Respondent's general
practice with respect to layoffs. With respect to the latter,
Hameister, who has been employed in Respondent's to-
mato packaging department since 1959, credibly testified
without contradiction, and I find, that during slack
periods available work is customarily given to the senior
employees.
Concerning Respondent's economic condition,
Respondent is, as I have found, engaged in the packaging
and wholesale distribution of fruits and vegetables. A
substantial portion of Respondent's business consists of
the packaging and sale of tomatoes.
Respondent sells merchandise to two types of
customers, those who operate only one store, and those
who conduct a chain store operation. All of Respondent's
sales are at wholesale. Nevertheless, its single-store
customers are referred to by Respondent as "retail" ac-
counts and its chain store customers are referred to as
29 The finding with respect to Forster's seniority is based upon uncon-
tradicted testimony given by Forster, Hameister, and Coonen which
establishes the hiring dates of four of the five employees in the tomato
packaging department to be as follows: Emmer, 1952; Hameister, 1959;
Coonen, 1961; and, as set forth in the text, Forster, 1964. The record does
not show when Leonor Ramirez, the department's fifth employee, began
to work for Respondent However, it is pertinent to note, in this connec-
tion, that Leonor Ramirez' husband, Victor Ramirez, has been employed
by Respondent since about 1960
30 The findings concerning the period of time during which Forster was
in a layoff status are based upon a stipulation entered into by the parties.
31 These findings are based on testimony given by Forster and Marvin
De Vries, a representative of the Union, and the authorization card signed
by Forster, which was received in evidence
97
"wholesale" accounts . Although Respondent sells all
types of merchandise to its "wholesale " customers, its
principal business with them consists of the sale of
packaged tomatoes.32
On March 1, Respondent had five chain store
customers . These were Kroger Grocery Co., The Copps
Co., Red Owl Stores , Inc., Super Value Stores , Inc., and
Schultz Stores, Inc. On March 4 The Copps Co. discon-
tinued its purchases from Respondent . Between March
I and 19,33 Respondent 's business with all its other chain
store customers , except Super Value Stores, Inc.
(hereafter called Super Value), had declined substantially
over the corresponding periods in January and Febru-
ary 34 Respondent ' s records, which were received in
evidence alsoo show, in this regard , that in January
Respondent 's sales to its chain store customers totaled
$ 14,380; in February , $ 11,113; and in March , $7,761.
In addition to the decline in Respondent's chain store
business of over $3,000 between February and March
and an overall drop of more than $6,500 between January
and March , Respondent , as Cohen, its president , testified
without contradiction , early in March , was compelled to
discard a carload of tomatoes as being unfit for use.
Respondent thereby suffered a further financial setback.
F. Concluding Findings Concerning Respondent's
Alleged Violation of Section 8(a)(3)
In support of his contention that Forster's layoff on
March 19 was discriminatory and hence violative of Sec-
tion 8(a)(3) of the Act the General Counsel, in essence,
makes the following argument. Respondent received the
Union's demand for recognition on March 15, and its
representation petition on March 16. On March 15 or 16,
Reffke, Senior, Respondent's supervisor, relayed to
Forster and other employees in Respondent's tomato
packaging department a threat by Cohen, Respondent's
president, that upon advent of the Union he would sell the
tomato packaging machines and discontinue the employ-
ment of the people in that department. Finally, Cohen,
after being informed that Forster was proselytizing for
the Union insofar as Reffke, Junior, was concerned, laid
her off because of her activity on behalf of the Union.
The General Counsel's conclusion that Forster was
laid off for union activity is, however, not soundly
premised. First I have found that the General Counsel
has not established as a fact that Cohen said to Reffke,
Senior, that if the Union came in he would sell the tomato
packaging machines and terminate the employment of the
people who worked in the tomato packaging department
or that Reffke, Senior, told Forster and other employees
in that department that Cohen had made such a state-
ment. Second, I have been unable to find on the record of
32 As Jack Fielkow, Respondent 's sales manager , testified "In March,
as always, our mainstay of our wholesale accounts has been our tomato
business."
33 I use March 19, as the cutoff date because this was the last day of
which Forster worked for Respondent prior to her recall on April 9. Ac-
cordingly, unless otherwise indicated, when months are referred to
hereafter only the first 19 days of the particular month will be taken into
account.
3' In March , Respondent 's business with Super Value totaled $3,709,
whereas it was $2,081 in February. Notwithstanding this increase in
March over February, Respondent' s business with Super Value in March
was considerably below that which was done in January, in which month
Respondent's sales to this customer amounted to $5,299
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, that Forster's proselytizing of Reffke, Junior, if
it occurred at a1l,35 took place prior to her layoff. Ac-
cordingly, I cannot agree with the General Counsel's con-
clusion that Forster was laid off because of her activity on
behalf of the Union.
Respondent's contention, on the other hand, that
Forster's layoff was occasioned by the decline in its busi-
ness during March and its necessity, in that month, to jet-
tison a carload of tomatoes is well founded in fact. Faced
with these adverse economic factors Respondent, follow-
ing its usual practice in such situations, chose Forster, a
junior employee, if not the most junior, in its tomato
packaging department for layoff. Furthermore, there is no
evidence, direct or circumstantial, to show that in doing
so Respondent was in any way motivated by the support
which Forster had earlier given the Union.
That Forster had supported the Union prior to her
layoff cannot be gainsaid. She did, as I have found, sign
a card designating the Union as her collective-bargaining
agent and she did, as I have also found, attend one of the
Union's meetings. However, as the Board aptly stated in
Mitchell Transport, Inc., 151 NLRB 122, 123, affd. 358
F.2d 281 (C.A. 7), "Engaging in protected, concerted ac-
tivity ... does not perforce immunize employees against
[layoff] for legitimate reasons."
Accordingly, I conclude that the General Counsel has
not sustained his burden of proving by a preponderance
of the evidence that by laying off Forster Respondent vio-
lated Section 8(a)(3) of the Act. I will, therefore, recom-
mend that paragraph 11 of the complaint, as amended at
the trial, be dismissed.
G. Facts with Respect to Respondent's Alleged
Violation of Section 8(a)(5) of the Act
As noted above, and as Respondent admits, on March
15, Respondent received a letter from the Union stating
that it was the designated collective-bargaining represen-
tative of a majority of Respondent's employees in a unit
consisting of "all the employees employed by
[Respondent] in Appleton, Wisconsin, excluding office
clerical, professional, sales and managerial employees,
guards and supervisors as defined in the Act."36 In this
letter the Union demanded recognition from Respondent
as the collective-bargaining representative of the em-
ployees in the foregoing unit, and informed Respondent
that one of its representatives would call on Respondent
on March 23, or some other mutually convenient date for
the purpose of negotiating a collective-bargaining agree-
ment. The Union further stated in its letter that it was
"willing to permit a neutral person to check [its]
authorization cards at the time of such meeting for pur-
pose of verifying [its] majority status in the bargaining
unit."
Also on March 15, the Union filed a representation
petition (30-RC-408). As Cohen, Respondent's pre-
sident, testified, a copy of the Union's petition was served
upon Respondent March 16.
35 It will be recalled, in this connection, that Forster denied having done
this
36 In its answer Respondent admitted, and I find, that the unit described
in the Union's letter is appropriate for collective-bargaining purposes.
34 In its answer Respondent admitted that the Union requested recogni-
tion and bargaining. The findings as to Respondent's refusal to accede and
is insistence on an election are based upon the letter to the Union, dated
March 17, from Respondent's lawyer and the uncontradicted testimony
of Robert Schliever, an officer of the Union.
Upon receipt of the Union 's letter, Cohen turned it
over to Respondent 's lawyer , who, in reply and probably
without knowledge that the Union's petition had already
been filed , informed the Union , on March 17, by letter,
that Respondent would not meet with the Union on
March 23 "for the purpose of starting negotiations." In
his letter to the Union Respondent 's lawyer also said:
. it is not our policy to recommend the institu-
tion of collective bargaining proceedings until the
bargaining status of the Union has been determined.
I presume you will file a petition for recognition and
that we can give the matter consideration in due
course.
On March 30, at a conference in connection with the
Union's petition , the Union renewed its offer to prove its
majority by a card check and again requested that
Respondent bargain with it. Respondent 's lawyer, how-
ever, reiterated that Respondent would not bargain until
the Union had been certified by the Board as the collec-
tive-bargaining representative of the employees con-
cerned.37
Insofar as the majority status of the Union may be
material in view of my conclusion with respect to this
phase of the case, I find that on March 15, the day on
which the Union 's demand was received , there were 15
employees in the unit found to be appropriate . Of these,
nine previously had voluntarily signed cards designating
the Union as their collective -bargaining representative.38
On March 17 , two additional employees in the unit
signed cards similarly designating the Union as their col-
lective-bargaining representative.39 Accordingly, I con-
clude that at all material times the Union represented a
majority of Respondent 's employees in a unit appropriate
for collective bargaining.
H. Concluding Findings as to Respondent's Alleged
Violation of8(a)(5) ofAct
Respondent has never bargained with the Union. It has
always insisted that the Union first establish its majority
through the election process. The General Counsel con-
tends that Respondent's insistence upon an election was
not because it had any doubt as to the Union's majority
status, but because it desired to, and did, gain time within
which to dissipate that status by committing unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act. For the reasons set forth below I disagree with
the General Counsel.
I have concluded that Respondent did not violate Sec-
tion 8(a)(3) of the Act and although I have found that
Respondent violated Section 8(a)(1) of the Act, not every
such violation "regardless of its nature or gravity," when
coupled with a card showing of a majority and an em-
ployer's insistence upon an election "will necessarily sup-
port a refusal-to-bargain finding." Aaron Brothers Com-
pany of California, 158 NLRB 1077. The violation must
be substantial and extensive and must be of such a
character as to indicate an underlying intent to reject
38 In pertinent part, the cards contained the following recital:
"I, the undersigned, hereby.. voluntarily choose and designate [the
Union] as my representative for purposes of collective bargain-
ing. .
39 These findings are based on the cards, which were received in
evidence the testimony of Martin De Vries, a representative of the Union,
in whose presence all cards were signed, and the testimony of the follow-
ing employees who signed cards: Forster, Garcia, Greening , Plamann,
and Victor Ramirez.
COHEN BROS. FRUIT CO.
completely the principle of collective bargaining. Aaron
Brothers Company of California, supra; Hammond &
Irving, Incorporated, 154 NLRB 1071; Cameo Lingerie,
Inc., et al, 148 NLRB 535, 538.
Applying the foregoing principles to the case under
consideration I cannot conclude that Respondent's
minimal violation of Section 8(a)(1) of the Act which, as
I have found, consisted of its threats to, and interrogation
of, only one employee out of a total unit complement of
15 was so "extensive [as to] evidence the employer's un-
lawful motive and to [justify] an inference of bad faith."
Hammonds & Irving, Incorporated, supra. Nor can I find
that by interrogating and threatening one employee in the
circumstances described by the record, Respondent has
"engaged in substantial unfair labor practices calculated
to dissipate union support" so as to give rise to the con-
clusion that Respondent 's "insistence on an election was
not motivated by a good-faith doubt as to the union's
majority, but rather by a rejection of the collective-bar-
gaining principle or by a desire to gain time within which
to undermine the Union." Aaron Brothers Company of
California, supra. Especially are the foregoing conclu-
sions warranted when it is remembered that none of the
other employees in the unit, 14 in number, were ever
threatened for joining or supporting the Union or given
promises of benefit to induce them to reject or refrain
from supporting the Union, nor did any of them ever hear
any of Respondent's officials or supervisors make any
derogatory remark about the Union.
Perhaps by way of a tacit concession that Respondent's
unfair labor practices, as described by the record, were
not extensive or substantial, the Union argues in its brief,
that being in fact the majority representative of Respond-
ent's employees in an appropriate unit it was entitled to
recognition regardless of the nature of Respondent's
doubt as to its majority and that for this reason Respond-
ent's failure to bargain with it constitutes a violation of
Section 8(a)(5) of the Act. The Union recognizes, how-
ever, that "it is the Board's position that it is not the fact
of majority status that is important, but instead the `state
of mind' of the employer which is controlling." (Union's
br., p. 15, emphasis in original.)40 As a Trial Examiner it
is my duty to follow established Board precedent. The
Prudential Insurance Company of America, 119 NLRB
768, 773, reversed on other grounds sub nom. Insurance
Agents' International Union, 361 U.S. 477. I must, there-
fore, reject the Union's argument in this regard.
Accordingly, I conclude that the General Counsel has
not sustained his burden of proving by a preponderance
40 The question of how to ascertain an employer's state of mind in this
area is a most vexatious one. In a series of recent cases , including Aaron
Brothers , Hammond & Irving , and Cameo Lingerie, the Board has irr
dicated that the determinative factor is the nature and gravity of the em-
ployer's unfair labor practices; e.g., whether they are "substantial"
(Aaronn Brothers), "extensive" (Hammond & Irving), or "serious"
(Clermont's Inc., 154 NLRB 1397) Thus, in Aaron Brothers, etc., 158
NLRB 1077, the Board stated (fn. omitted):
Absent an affirmative showing of bad faith , an employer, presented
with a majority card showing and a bargaining request, win not be
held to have violated his bargaining obligation under the law simply
because he refuses to rely upon cards , rather than an election, as the
method for determining the union 's majority.
Whether an employer is acting in good or bad faith in questioning the
union' s majority is a determination which of necessity must be made
in the light of all the relevant facts of the case, including any unlawful
conduct of the employer , the sequence of events and the time lapse
99
of the evidence that Respondent violated Section 8(a)(5)
of the Act -f will, therefore, recommend that paragraph 9,
and the relating portions of paragraph 10, of the complaint
be dismissed.
1. The Conduct Affecting the Results of the Election
The Board has held that the critical period within which
objectionable conduct will be deemed to affect the results
of an election starts on the date on which the representa-
tion petition is filed, in this case March 15. Goodyear
Tire and Rubber Company, 138 NLRB 453, 454. It has
also been held that "Conduct violative of Section 8(a)(1)
is, a fortiori, conduct which interferes with the exercise
of a free and untrammeled choice in an election." Dal-
Tex Optical Company, Inc., 137 NLRB 1782,1786.
The interrogations of, and threats to, Respondent's em-
ployee, Victor Ramirez, by Cohen, its president, which
constitute Respondent's violation of Section 8(a)(1) of the
Act, commenced, as I have found, on March 18, 3 days
after the filing of the petition. I conclude, therefore, that
the election in this case, which was held on April 19,
must, perforce, be set aside.41
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with its operations as set forth in
section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, my Recommended Order
will direct Respondent to cease and desist therefrom and
to take the affirmative action normally required in such
cases to effectuate the policies of the Act. My Recom-
mended Order will further require that the election con-
ducted on April 19, be set aside and that the representa-
tion case (30-RC-408) be remanded to the Regional
Director for the purpose of conducting a new election at
such time as he deems that circumstances will permit the
free choice of a collective-bargaining representative by
the employees concerned.
between the refusal and the unlawful conduct. Where a company has
engaged in substantial unfair labor practices calculated to dissipate
union support, the Board, with the courts ' approval, has concluded
that employer insistence on an election was not motivated by a
good-faith doubt of the union's majority, but rather by a rejection of
the collective-bargaining principle or by a desire to gain time within
which to undermine the union. However, this does not mean that any
employer conduct found violative of Section 8(a)(1) of the Act, re-
gardless of its nature or gravity , will necessarily support a
refusal-to-bargain finding. For instance , where an employer 's unfair
labor practices are not of such a character as to reflect a purpose to
evade an obligation to bargain, the Board will not draw an inference
of bad faith.
41 Implicit in this conclusion is the sustaining of the Union's first objec-
tion to conduct affecting the results of the election insofar as it relates to
the violations of Section 8(a)(1) of the Act, which I have concluded were
committed by Respondent . In view of this, I find it unnecessary to con-
sider the Union's other objections.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and 2. The Union is a labor organization within the mean-
upon the entire record in this case, I make the following: ing of Section 2(5) of the Act.
3. By the conduct set forth in section III, C, hereof,
Respondent engaged in unfair labor practices within the
meamng of Section 8(a)(1) of the Act, but only to the ex-
CONCLUSIONS OF LAW tent set forth in section III, D, of this Decision.
4. Respondent did not engage in unfair labor practices
1. Respondent is an employer within the meaning of within the meaning of Section 8(a)(3) or (5) of the Act.
Section 2(2) of the Act and is engaged in commerce,
within the meaning of Section 2(6) of the Act. [Recommended Order omitted from publication.]