Crest Industries Corp.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 490 (N.L.R.B. 1985)

490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crest Industries Corp and Local 1922 , International
Brotherhood of Electrical Workers, AFL-CIO
Cases 29-CA-10979 and 29-CA-11076
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 28 February 1985 Administrative Law Judge
Steven Davis issued the attached decision The Re
spondent filed exceptions and a supporting brief,
the General Counsel filed cross exceptions and a
supporting brief and the Respondent filed an an
swering brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judges rulings findings,' and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Crest Indus
tries Corp, Deer Park, New York its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
I The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Member Dennis agrees that the Respondent s poll was lawful under
Board precedent interpreting Struksnes Construction Co 165 NLRB 1062
(1967) In these circumstances she finds it unnecessary to rely on Ross
more House 269 NLRB 1176 (1984)
Because Member Dennis agrees that the Respondent is obligated to
bargain with the Union based on the results of the poll she finds it un
necessary to decide whether a bargaining order should issue under
NLRB Y Gissel Packing Co 395 U S 575 (1969)
Beatrice Kornbluh Esq Brooklyn New 1 ork for the
General Counsel
J Leonard Samansky Esq New York New York for
the Respondent
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS Administrative Law Judge Pursuant
to a charge filed by Local 1922 International Brother
hood of Electrical Workers AFL-CIO (the Union) in
Case 29-CA- 10979 on January 13 1984 1 and a charge
filed by the Union in Case 29-CA- 11076 on March 2
complaints which were later consolidated for hearing
were issued by Region 29 of the National Labor Rela
tions Board on February 28 and May 8 respectively
against Crest Industries Corp (Respondent) The com
plaints allege that about January 5 a majority of the em
ployees in an appropriate unit designated and selected
the Union as their collective bargaining representative
and on that date Respondent (a) refused the Union s re
quest for recognition (b) interrogated and polled its em
ployees concerning their membership in the Union and
determined that a majority of the employees wished to
be represented by the Union (c) threatened its employ
ees with discharge to induce them to refrain from be
coming or remaining members of the Union or assisting
it and (d) threatened to call the police unless union
agents left its premises The complaint further alleges
that Respondents actions set forth above committed in
order to undermine the Union and destroy its majority
status constitute unfair labor practices so serious and
substantial in character and effect that Respondent has
prevented the holding of a fair election thereby re
quinng mter alia the issuance of a bargaining order as
an appropriate remedy
Respondents answer denied the material allegations of
the complaints and a hearing was held before me on Oc
tober 1 in Brooklyn New York
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Coicnsel and the Respond
ent I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent a New York corporation having its prim
cipal place of business at 593 Acorn Street Deer Park
New York in engaged in the sale and distribution of
lucite and related products Annually Respondent pur
chased lucite and other goods valued in excess of
$50 000 which were transported and delivered to its
place of business directly from points outside New York
State
Respondent admits and I find that it is an employer
enaged in commerce within the meaning of Section 2(2)
(6) and (7) of the Act and that the Umon is a labor orga
mzation within the meaning of Section 2(5) of the Act
II ALLEGED UNFAIR LABOR PRACTICES
A The General Counsels case
In early January Philip Faicco the Union s business
representative received an anonymous call requesting or
ganization of the Respondent A couple of days later on
January 5 he visited Respondents facility with Union
Representatives Dominic Macchia and Joseph Faicco 2
They arrived about 7 30 a in and about 8 30 a in began
I All dates are in 1984 unless otherwise stated
2 Hereafter Faicco will refer to Philip Faicco
276 NLRB No 67
CREST INDUSTRIES CORP
speaking with employees who were reporting to work
The three agents spoke to about 10 workers and Faicco
obtained signed authorization cards from three ware
house employees Thomas Belvezzi Christopher Birdsall
and Earl Fuller Faicco told the three men that they
should complete the cards to apply for union member
ship and that the cards were needed to request recogni
tion or petition for an election He asked when the em
ployees have lunch and was told at noon The three
workers then went into work about 9 o clock and the
union agents left
Around noontime the union agents returned to Re
spondent s facility Faicco at first testified that he asked a
man standing at a coffee truck in the parking lot for his
identity Faicco believes that he was a supervisor Faicco
then said that he wanted to talk to the employees and
the man agreed Faicco then went to the warehouse bay
door a short distance away and spoke to four warehouse
employees who were standing there On cross examina
tion however Faicco stated that he met with the em
ployees at the coffee truck and then walked them to the
bay door
The fourth warehouse employee Michael Barbara
who had not yet signed a card was spoken to by Faicco
and the three other warehousemen They told him that
they wanted to have 100 percent signed cards when they
requested recognition and Barbara signed a card All
four cards were signed in Faicco s presence
Faicco then suggested to the four employees that he
would request recognition from Respondent and if the
Union was recognized they could negotiate a contract
and if not (a) Respondent might agree to a card check by
a third party or (b) the Union could petition for an elec
tion The employees agreed that recognition should be
requested
The four workers and the union representatives then
stepped a couple of feet into the warehouse Faicco told
Supervisor David Taylor that he wanted to see Herbert
Adler Respondents president
Faicco testified that Adler approached the group
Faicco and Union Agent Macchia introduced them
selves and Faicco gave Adler his business card Faicco
then said that more than a majority of the workers chose
to become members of the Union and completed cards
for it and requested that Adler recognize the Union and
negotiate a fair and equitable contract Adler looked at
the four employees and asked Is this what you want? 3
The four nodded their heads in an affirmative manner
Faicco who held the cards in his hand asked Adler if he
wanted to see their application cards because he could
demonstrate that the Union represented a majority of the
workers Adler replied No adding that he did not
want to talk on the premises but that if they left the fa
cility he would speak to them Faicco agreed and asked
the four workers to accompany him Adler interjected
that he would speak to the union agents alone Faicco
agreed and the three union agents walked onto the bay
platform As soon as they did so Adler closed the bay
8 Macchia testified that Adler asked Is this what you people are
looking for?
491
door leaving the union agents outside the facility with
Adler and the employees inside
Faicco stated that he then heard through the door
Adler yell If you talk to any of those Union people
again I m going to fire you Faicco then opened the bay
door stepped 1 or 2 feet into the warehouse and shout
ed Who the hell do you think you are threatening
these people? If you fire anyone Ill file unfair labor
practice charges and I 11 throw a picket line4 around the
plant Adler said that he did not care and Faicco re
plied that he better care because this is a serious
matter There was shouting back and forth which ended
when Adler threatened to call the police if they did not
leave The agents then left
The following day January 6 Faicco and Macchia
met with the four card signers and told them that the
Union would file a charge because of Adler s threats
Faicco asked the men if they would picket and strike for
recognition They replied that they would not strike or
picket because they were afraid for their jobs and asked
that the Union request an election Faicco agreed
Between January 10 and 17 the four employees sent
letters to the Union requesting the return of the cards
which they signed The Union did not send back their
cards
On January 13 the Union filed a charge and a petition
for an election On May 14 the Union requested with
drawal of its petition because a complaint had been
issued in the instant case alleging Respondents refusal to
bargain and on May 14 the Regional Director approved
the request for withdrawal
Faicco testified that it is his general procedure in
making a demand for recognition that (a) he introduces
himself and presents a business card and (b) attempts to
have the unit employees present when the demand is
made so that they hear what is said the employer knows
that ti a employees support the demand and they can
answer any questions the employer may have
Macchia testified essentially consistently with Faicco
He corroborated Faicco s changed testimony on cross
examination that at lunchtime on January 5 they they
met the four employees at the coffee truck and walked
to the bay area
B Respondents Case
Respondents president Herbert Adler testified that
about 9 am on January 5 he heard loud noises coming
from the warehouse Supervisor Taylor told hint that
there was a problem in the warehouse Adler went to
the warehouse and found an uproar and commotion
with the employees not working and the three union
agents in the warehouse Adler who denied knowing
who the agents were told them to leave They shouted
at him that We re the Union We re going to get you
and used foul language Adler stated that everyone
was yelling and screaming at each other Adler at first
denied but when confronted with his pretrial affidavit
admitted telling the union agents that if they had any
thing to say they could say it outside the plant Adler
• Reads picket sign in the transcript
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told them many times to leave but they did not Finally
he threatened to call the police if they did not go and
they left As they left the facility apparently Adler put
his hand on the bay door as if to close it but one agent
held it up More words were exchanged and Adler again
told them to leave Adler again put his hand on the door
the union agent let go and the door was closed No one
opened the door after he closed it These events as de
scribed by Adler took place within 25 to 30 minutes
Adler stated that he had no further contact with the
union agents that day the union agents did not introduce
themselves did not present a business card did not
demand recognition and did not offer to show him the
signed cards However Adler did not recall if the agents
told him that they had signed cards
Asler denied telling any employee that if he talked to a
union agent he would be discharged
Respondents admitted warehouse supervisor Patrick
Carrington testified that on January 5 he saw two union
agents speaking to warehousemen at 8 45 am and that
at 9 am the employees entered the facility and began
work He further stated that between 9 30 and 10 a in he
saw two union agents inside the warehouse and one in
the bay doorway sometime between 9 30 and 10 am
speaking to the four warehousemen between the open
bay door Carrington who could not hear their conver
sation told the workers the morning break was over but
they continued to speak with the agents Supervisor
Taylor told Faicco to speak to the men in the bay door
area and then left Taylor returned with Adler who
spoke with the two union agents but Carrington could
not at first hear their conversation
The discussion began at a louder than normal tone and
after a couple of minutes Adler told them to leave The
discourse became progressively louder with much shout
ing Adler again told them to leave and they did so and
also engaged in namecalling As they began to walk
toward the bay door Carrington left the area and when
he returned the bay door was closed He stated that he
did not know whether the union agent reentered the
warehouse after the door was closed but he conceded
hearing more screaming and shouting after he left the
area presumably at or after the time the door was
closed
Carrington denied hearing the Union request recogni
tion or offer to show the cards to Adler
Carrington stated that on January 6 or 7 employee
Barbara was frightened and emotionally upset about
signing the union card and asked Carrington for advice
Carrington told him that he could not advise him
C Credibility Resolutions
This case presents a difficult issue of resolving two dif
ferent versions of the events which occurred at the con
frontation between Adler and the union representatives
The Union s witnesses testifed consistently that they
signed up three employees in the morning and retuned at
lunchtime when they obtained the fourth card and re
quested recognition I do not regard as significant the
fact that Faicco at first testified that at noon he asked a
supervisor at the coffee truck to speak to the employees
but changed his testimony and stated that he met the
workers at the truck and walked with them to the bay
door In fact Faicco s later testimony is again consistent
with that of Union Agent Macchia
Respondents main argument is that the union agents
account is false because according to them their meet
mg with Adler occurred about 12 or 12 30 p in during
which a coffee truck was present and according to the
Respondents witnesses the truck was not there at that
time and did not amve that day until about 1 30 p in
However this theory does not address the content of the
meeting only as to when it occurred It is undisputed
that Adler met the union representatives that day The
union agents claim it occurred about noon Adler states
that it took place in the morning The time that it hap
pened is unimportant-what happened is the crucial issue
The version of the two union witnesses is I believe
on the whole more credible than that of Adler b Their
testimony was consistent straightfoward and candidly
delivered as for example when Faicco searched his
memory but could not recall if Joseph Faicco was
present during some of the events They gave detailed
descriptions of the precise conversation between the par
ticipants Adler on the other hand did not give an exact
version using the words spoken between him and the
two umon agents He stated that there was a commo
tion shouting screaming and yelling and words were ex
changed He contradicted his pretrial affidavit in an im
portant manner He testified that he did not tell the
union representatives that if they had anything to say
they could say it outside the plant but admitted that his
affidavit contains that remark which he made This is
some support for the union agents testimony that Adler
invited them to speak with him outside the shop but
then closed the door leaving them outside In addition
he stated that he had no reason to and did not call his
attorney prior to January 5 but conceded that his phone
bill lists a call to his lawyer on January 4
Moreover his testimony on cross examination is in
structive in which he attempted to interpret his affidavit
concerning the responsibilities of the office clerical em
ployees in a manner not warranted by the plain language
of the affidavit which states
The office clerical employees are physically sepa
rate from the warehouse employees David Taylor
supervisor picks up orders from the office of mer
chandise which has to be pulled Generally the
office clerical employees have no working contact
with the warehouse employees
The following colloquy took place between the Gen
eral Counsel and Adler
Q And let me ask my question again In either of
those affidavits is there any mention of anyone
other than Dave Taylor [who] picks up the orders
' Supervisor Carrington who denied hearing the Union request recog
ration or offer to show the cards did not have an opportunity to hear the
conversations between Adler and the union agents because he testified
that he did not hear their conversation
CREST INDUSTRIES CORP 493
and takes them to the warehouse to show which
merchandise has to be pulled?
A. No, because this was an answer to the ques-
tion that was asked and in general-
Q. Sir, would you please answer my question yes
or no.
A. In general David Taylor picks up the orders,
in general . Not all the time . This is what it states.
That David Taylor picks up the orders.
I.reject Adler 's denial that the, union agents introduced
themselves , tendered a business card , or requested recog-
nition . It would make no sense for the union agents, in
the circumstances present here in which they represented
all of the unit employees to "strongarm " their way into
the shop and not identify themselves . They discussed
with the employees prior to their entry that they would
request recognition , and that is what they did-with the
employees present.
It is also significant to note the Adler did not recall
(but did not deny) that the Union told him that they had
signed cards . In addition, the facts that (a) employee Bar-
bara told Supervisor Carrington that he was frightened
and emotionally upset because he signed a union card
and asked him for advice , (b) all employees told the
union agents on January 6 that they were afraid of losing
their jobs , and (c) all employees requested the return of
their cards , suggests that the threat to discharge the men
occurred as testified to by the union agents and lends
support to a finding that the union representatives' ver-
sion of the facts should be believed.
Finally , Carrington contradicted Adler's testimony
that there was a commotion before he (Adler) arrived in
the warehouse . Carrington stated that the union ' agents
spoke with the employees in such a manner that he could
not hear their conversation . He also contradicted Adler's
testimony that on Adler 's.meeting the union agents there
was much screaming and shouting . Carrington testified
that he at first could not hear the discussion between the
union representatives and Adler . Carrington thus essen-
tially corroborates the union witnesses ' version that they
spoke quietly , with the men at the bay door ; requested
Supervisor Taylor to have Adler come to the bay door
area; and then requested recognition in a civil discussion
with Adler , prior to the time they were shutout of the
warehouse.
For all of the above reasons , I credit the testimony of
Faicco and Macchia.j,
C. The Unit and the Union 's Majority Status
The complaint alleges that the following • collective-
bargaining unit is appropriate:
All full-time and regular part-time production,
maintenance, shipping and receiving employees of
Respondent , employed at its Deer Park , New York
jobsite exclusive of all office clerical employees,
professional employees , guards, and all supervisors
as defined in Section 2(1) of the Act.'
On January 5, there were four warehouse employees,
Michael Barbara, Thomas Belvezzi, Christopher Birdsall,
and Earl Fuller, and two admitted supervisors, Patrick
Carrington and David Taylor. In addition, there were six
clerical employees and two admitted supervisors of the
clericals.
The General Counsel argues that the unit should not
include the office clerical workers, while Respondent as-
serts that they should be included.
Respondent is an importer which receives at its ware-
house finished goods from the Orient and,then transports
them to its customers. Its warehouse. employees unload
trucks that arrive at its premises; put the articles in their
proper place in the warehouse; pick items in the ware-
house and pack them for shipment. They do whatever is
necessary to pull and' ship the orders.
The clerical employees work in an office area which is
physically separated from the warehouse by a door.
Their duties include general" office tasks such as filing;
billing customers; receiving orders by phone from cus-
tomers and speaking with customers who have inquiries
concerning their orders. The clerical employees also
write orders for merchandise to be handled in the ware-
house; prepare the packing slips; check the shipping re-
ceipts ; and prepare'-bills of lading. They compare the
bills of lading to the bills, compute the United Parcel
Service charges, and add that figure to the customer's
bill. Occasionally, the clerical employees- will open car-
tons of merchandise, remove the items and put labels or
stock numbers on them, and replace the goods in the
box.
Orders of merchandise to be picked are prepared in
the office. Respondent's president Adler testified that the
two warehouse supervisors or the office clerical employ-
ees might bring the orders to the warehouse. However,
in his pretrial affidavit, Adler stated that Warehouse Su-
pervisor Taylor takes the orders to the warehouse, and
that, generally, the clericals have no working contact
with the warehouse employees.
At times when the warehousemen run out of stencils
or labels, they will go into the office and -ask a clerical
employee to prepare additional paperwork so that the
order could be completed
The warehouse employees have lunch from 12 to
12:30 p.m. and have a morning and afternoon break of 15
minutes each . The clerical . employees have staggered
lunchtimes, from noon through 2 p.m., and do not have
the same breaks as the warehouse employees. A small
lunchroom or kitchen in the office area contains a table
and four chairs which the warehousemen, clericals, and
company officials occasionally use, sometimes together.
III. ANALYSIS AND DISCUSSION
The Alleged Unfair Labor Practices
A. The 8(a)(1) Allegations
The General Counsel alleges that on January 5, Re-
spondent (a) interrogated and polled its employees con-
cerningtheir union membership , (b) threatened its em-
ployees :with discharge to induce them to refrain from
becoming or remaining union members , and (c) threat-
ened to call the police unless the union agents left, its
premises.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As set forth, I have credited the testimony of the
union witnesses and found the facts as they stated.
The. threat to discharge the employees if they spoke to
the union agents is clearly, unlawful. American. Medical
Transport, 272 NLRB 285; 292 (1984).
The Board has reaffirmed the test for evaluating
whether certain -inquiries violate 'the Act as "whether
under all of the circumstances' the interrogation reason-
ably 'tends' to -restrain, coerce, or interfere with rights
guaranteed by the Act." , Rossmore House,- 269 NLRB
1176 (1984) I'am-unable to find that-unlawful' polling or
unlawful interrogation occurred here. Upon the demand
for recognition, and the Union's assertion that a majority
of employees signed cards, Adler asked 'the employees,
"Is this what you want?" or words to that effect. Al-
though the poll was not conducted, with the standards
set forth in Struksnes Construction, Co., 165 NLRB 1062
(1967), Adler's question, in the circumstances, • does not
justify the conclusion. that Respondent restrained, co-
erced, or interfered with its ,employees'. Section 7 rights.
The Union's representatives were present when the poll
was conducted, Union Agent Faicco had the autlioriza-
iion cards in his hand and. immediately offered to show
them to Adler to,confirm the employees' affirmative re-
sponse to the. poll, and, Faicco's purpose in having the
employees accompany him when he made a demand for
bargaining , was to enable the employees to-answer any
questions the employer might have. Alco Venetian Blind
Co., 253 NLRB 1216, 1220 (1981); Red's Novelty Co.;.222
NLRB.899 (1976); Bushnell's-Kitchens, 222 NLRB. 110
(1976). By appearing ' with, the union- representatives
when they requested recognition, the, employees.-could
therefore be viewed as _'open and active" union adher-
ents, and. as to whom interrogation, about their union
membership would be -lawful. Rossmore House, supra.
Moreover, having been first told that more than a major-
ity 'of the employees had signed cards, Adler sought to
confirm that. ' • -
I accordingly find that- no unlawful interrogation or
polling of employees occurred. -
Adler threatened to call the. police if the union repre-
sentatives did not leave the-premises.
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956),
involved an employer's' refusal to permit distribution of
union literature by nonemployee union organizers on
company-owned parking lots. The Supreme Court held
that there must be an accommodation between .the em-
ployees' Section 7 rights to organize and the employer's
right to prohibit its property from being used by outsid-
ers. The Court stated:
Accommodation between the two must be obtained
with as little destruction of one as is consistent with
the maintenance of the other. [351 U.S. at 112.]
In defining how the balance ' might be'' struck, the Court
held that "union organizers who seek to solicit for union
membership may' intrude on an employer's private prop-
erty: if no alternative means 'exists 'for -communicating
with the employees." Hudgens v. NLRB, 424 U.S. 510,
511 (1976).
Hudgens involved picketing to protest an employer's
failure to agree to the union's contract demands. The
picketing occurred at a shopping. center and was en-
gaged in by employees' of the store being picketed, al-
though they were actually working at the store's ware-
house not located in the shopping center. The Supreme
Court emphasized the difference between the picketing
in Babcock & Wilcox, conducted by "outsiders," and that
conducted in Hudgens by the employees of the picketed
store, and stated that the accommodation between the
two conflicting rights "may fall at differing points along
the spectrum depending on the nature and strength of
the respective Section 7 rights and private property
rights asserted in any given context." 424 U.S, at 522.
On remand, the Board in Scott Hudgens, 230 NLRB
414, 416 (1977), in finding that the employer's threat to
cause the arrest of the pickets violated the Act, noted
that, in Babcock & Wilcox, the intended audience was the
employees sought to be. organized, and that:
[I]f the employees are beyond the reach of reasona-
ble union efforts to communicate with them, it is
the employees' right to receive information on the
right to organize that is abrogated when an employ-
er denies nonemployee union organizers access to
the employer's property. .
The Board further noted that:
In an organizational campaign, the group of em-
ployees whose support the union seeks is specific
and often is accessible by means .of communication
other than direct entry of the, union organizers onto
the.,employer's property, such as meeting employees
on the street, home visits, letters, and telephone
calls. [Id.]
The Supreme Court made the following observation:
Experience with trespassory organisational solicita-
tion by nonemployees is instructive in this regard.
While Babcock indicates that an employer may not
always bar nonemployee union organizers from his
property, 'his right to do so remains the general
rule. To gain access, the union has the burden-of
showing that no other reasonable means of commu-
nicating its organizational message to the employees
exists-or that the employer 's access rules discrimi-
nate against union solicitation. That the burden im-
posed on the Union is a heavy one is evidenced by
the fact that the balanced struck by the Board and
the courts under the Babcock accommodation prin-
ciple has rarely been in favor of trespassory organi-
zational activity. [Sears, Roebuck & Co. v. Carpen-
ters, 436 U.S. 180, 205 (1978).] -
I accordingly find and conclude that there is no show-
ing that the Union lacked an alternative means of com-
municating with Respondent's employees, and that a bal-
ancing of the conflicting'interests must be struck in favor
of Respondent's private property rights, and thus .Re-
spondent did not act unlawfully in'threatening to call the
police if the union agents did not leave its premises. -
CREST INDUSTRIES CORP 495
B. The 8(a)(5) Allegations
1 The unit
The warehousemen, which is the only classification of
employees employed in the unit sought by the General
Counsel, perform traditional warehousemen tasks- the
unloading, storage, selection, and shipping of merchan-
dise.
The warehousemen share virtually no community of
interest with the office clerical employees. They work in
the warehouse, which is separate from the office. They
are separately supervised and perform job functions dis-
similar to those of the office clericals, who perform clas-
sic office clerical functions. There is minimal contact be-
tween the two groups and no interchange. Institutional
Food Services, 258 NLRB 650, 651 (1981); Sears, Roebuck
& Co., 235 NLRB 678, 679 (1978). The occasional, mini-
mal involvement between the clericals and warehouse
employees, such as bringing orders to the warehouse, un-
packing, marking and packing cartons, and preparing pa-
perwork, cannot serve to provide a community of inter-
est between those two groups of employees. Wickes Fur-
niture, 255 NLRB 545, 548 (1981); Jacques Syl Knitwear,
247 NLRB 1525, 1533-34 (1980), I accordingly find that
the appropriate bargaining unit , as set forth in the com-
plaint, properly excluded office clerical employees, and
that the'•office clerical employees employed by Respond-
ent share no community of interest with the warehouse
employees and are therefore not includible in the unit de-
manded or alleged.
• 2. The Union's majority status -
Respondent objects to the cards of Birdsall and Fuller
on the ground that their cards are dated "1/5/84" but
have the "4" written over a "3." It is clear that the cards
were signed on January 5, according to the undisputed
testimony of the union witnesses, and that "83" was first
written by inadvertence. The cards could not have been
signed in January 1983 since the two employees were
not employed at that time In these circumstances, "the
mere correction of the date . . . does not destroy its va-
lidity." Standard-Coosa-Thatcher, Inc., 257 NLRB 304,
310 (1981).
Respondent further attacks all four cards on the
ground that the employees revoked their authorization
cards by requesting the 'return thereof from the Union.
.As set forth above, all four card signers sent letters to
the Union between January 10 and 16 requesting the
return of their cards.
An employee seeking to revoke an authorization card,
and thereby preclude the card from being counted in de-
termining the issue of majority status, must actually
notify the union of that desire prior to the demand for
recognition. Photo Drive Up, 267 NLRB 329, 364 fn. 224
(1983). Thus, since the four employees did not attempt to
revoke their designations of the Union as their bargain-
ing agent prior to January 5, the date of the demand for
recognition, their attempted withdrawals did not cause
the invalidity of their authorization for the purpose 'of es-
tablishing the Union's majority as of January 5.
All four cards were signed in Faicco's presence and
were authenticated by him. The cards unambiguously au-
thorize the Union to represent the employees regarding
collective bargaining Inasmuch as the four warehouse-
men who signed cards constitute the entire bargaining
unit, I find. and conclude that on January 5 the Union
represented a majority of the employees in such unit.
3 Respondent's obligation to recognize and bargain
In the complaint, argument at the hearing, and in her
brief, the General Counsel urges that Respondent be
found to be obligated to bargain with the Union pursuant
to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The
Supreme Court there approved the issuance of bargain-
ing orders in "exceptional" cases marked by "outra-
geous" and "pervasive" unfair labor practices, or "in less
extraordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine
majority strength and impede the election process." I am
unable to find that a bargaining order is warranted under
this theory The only unfair labor practice I have found
is a single threat to discharge the employees if they
spoke to union representatives. The sole threat is neither
so extensive in nature nor so pervasive in character as to
,preclude the holding of a fair election.
However, I find that Respondent is obligated to bar-
gain with the Union based on the poll it took of its em-
ployees upon the demand for bargaining. The complaint
alleges that Respondent refused to bargain by polling its
employees in which it "determined that a majority of the
employees wished to be represented by the Union "
The Board, in Green Briar Nursing Home, 201 NLRB
503 (1973), summarized the applicable law with respect
to Respondent's obligation to bargain.
In Linden Lumber [190 NLRB 718 (1971)] and our
later decision in Sullivan Electric Company, 199
NLRB 809 (1972), we made it clear that an employ-
er will not be found in violation of Section 8(a)(5)
of the Act solely upon the basis of his refusal to
accept union-proffered evidence of majority status
other than the results of a Board election, unless his
conduct precluded resort to an election. In those
cases we pointed out that an election will be pre-
cluded by substantial employer misconduct in viola-
tion of the Act, by an employer's action in agreeing
upon another method of ascertaining whether a
union majority existed, or by an employer's conduct
of a poll of employees which establishes the existence of
a majority. [Emphasis added.]
I have found above that, after the Union requested
recognition, Respondent's president Adler turned to the
four assembled employees and asked, "Is this what you
want?" or "is this what you people are looking for?" The
men then nodded affirmatively.6 That Adler understood
6 Their silent , but clear confirmation that they desire to be represented
by the Union is sufficient to find that they wished union representation
Gregory Chevrolet, 258 NLRB 233, 239 (1981)
496 DECISIONS OF-NATIONAL LABOR RELATIONS -BOARD
the,employees' action as desiring union representation is
demonstrated by the events which immediately followed.
He asked the union agents to step outside , closed the
door behind them, and proceded to threaten his employ-
ees with discharge if they spoke to the union representa-
tives . The Board states in E. S. Merriman & Sons, 219
NLRB 972, 973 (1975): -
It is well settled that an employer who elects to
poll or interrogate his employees following a
union's demand for recognition is bound by the re-
sults of that poll. An employer who undertakes his
own substitute for a Board-conducted election and
thereby confirms the union's claim of -majority
status, may not thereafter decline to bargain with
that union . He cannot repudiate the route he himself
has selected to test the union's majority claim
merely because the results are not to his liking
.... Respondents, having thus confirmed the
Union's claim of majority status , were "stuck" with
the results. Accordingly, we find that by refusing to
recognize and bargain with the Union on and after
April 10, Respondents have violated and continue
to violate Section 8(a)(5) and (1) of the Act.
I accordingly find and conclude that upon learning
that a majority of the unit employees desired union rep-
resentation, Respondent was bound by the results -of the
poll and was obligated to comply with the Union's
demand for exclusive recognition and bargaining.' Be-
cause Respondent failed to do this, I find that it violated
Section 8(a)(5) of the Act. English Bros. Pattern & Found-
ry, 253 NLRB 530, 535 (1980); Direct Image Corp., , 233
NLRB 365, 371-372 (1972). - -
CONCLUSIONS OF LAW
1. Respondent is, and has been at all material times, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. `
2. The Union is a-labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing on and after January 5, 1984, to recog-
nize and bargain collectively with Local 1922, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO
(Local 1922), as the exclusive bargaining representative
of its employees in the appropriate unit set forth below,
Respondent has engaged in and is engaging in unfair
labor practices in violation of Section 8(a)(1) and (5) of
the Act. The appropriate unit is:
All full-time and regular part-time production,
maintenance , shipping and receiving employees of
Respondent, employed at its Deer Park, New York
jobsite, exclusive of all office clerical employees,
professional employees, guards and supervisors as
defined in Section 2(11) of the Act.
4. By threatening to discharge employees if they spoke
to union representatives , Respondent has violated Sec-
tion 8(a)(1) of the Act.
The fact that the poll was not unlawful does not change this result.
English Bras, mfrs , •
5. Respondent has not otherwise violated the Act.
6. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and'desist therefrom and to take cer-
tain affirmative -action designed to effectuate the policies
of the Act.
Having found that Respondent on and after January 5,
1984, has failed and refused to recognize and bargain
with the Union in violation of Section 8(a)(1) and (5)_ of-
the Act, it will be recommended that Respondent, on re-
quest, be ordered to recognize and bargain • with the
Union as the exclusive bargaining agent of its employees
and, if an understanding is reached , embody same in a
written, signed agreement. - - -
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER -
The Respondent , Crest Industries Corp., Deer Park,
New York, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
Local 1922, International Brotherhood of Electrical
Workers, AFL-CIO as the exclusive bargaining repre-
sentative of its employees in the following appropriate
unit: - -
All full-time and regular part-time production,
maintenance , shipping and receiving employees of
Respondent, employed at its Deer Park, New York
jobsite, exclusive of all office clerical employees,
professional employees, guards and supervisors as
defined in Section 2(11) of the Act.
(b) Threatening to discharge employees if they • spoke
to union representatives.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the polices of the Act. - -
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is- reached, embody the un-
derstanding in a signed agreement.
(b) 'Post 'at its place of business in Deer Park, New
York, copies of the attached notice marked "Appen-
6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and egulations, the • findings , conclusions, and recommended
Order shat as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses-
CREST INDUSTRIES CORP
dix 9 Copies of the notice on forms provided by the
Regional Director for Region 29 after being signed by
the Respondents authorized representative shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus
tomanly posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered de
faced or covered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS ALSO RECOMMENDED that the complaint be dis
missed insofar as it alleges violations of the Act not spe
cifically found herein
If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
497
WE WILL NOT refuse to recognize and bargain in good
faith with Local 1922 International Brotherhood of
Electrical Workers AFL-CIO as the exclusive collec
Live bargammg agent of our bargaining unit employees
All production maintenance shipping and receiving
employees of Respondent employed at its Deer
Park New York plant exclusive of all office Glen
cal employees professional employees guards and
all supervisors as defined in Section 2(11) of the
Act
WE WILL NOT threaten our employees with discharge
if they speak to union representatives
WE WILL NOT in any tike or related manner interfere
with restrain or coerce employees in the exercise of the
rights guaranteed them under Section 7 of the Act
WE WILL on request recognize and bargain with
Local 1922 International Brotherhood of Electrical
Workers AFL-CIO as the exclusive collective bargain
mg agent of our employees in the bargaining unit set
forth above and if an understanding is reached embody
such understanding in a signed agreement
CREST INDUSTRIES CORP