D & C Textile Corp.

National Labor Relations Board - Board Decisions

Apr 15, 1971

189 N.L.R.B. 769 (N.L.R.B. 1971)

D & C TEXTILE CORP. 769
D & C Textile Corp . and District 65, Wholesale , Retail,
Office & Processing Union , National Council
Distributive Workers of America. Case
2-CA-12007
April 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 17, 1970, Trial Examiner Samuel
Ross issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner further found that Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision, and a supporting brief.
The General Counsel filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions and recommendations' of the
Trial Examiner, as modified herein.
1. The Trial Examiner found that Respondent
violated Section 8(a)(1) of the Act when, during the
course of the March 10, 1970,2 employee meetings,
Dostis, Respondent's president, in the words of the
Trial Examiner, "threaten[ed ] his employees with less
favorable working conditions if the Union represent-
ed the employees." For the reasons set forth below, we
find that the statements made by Dostis were not
coercive.
Dostis' testimony on this point, which the Trial
Examiner credited, was that he told the employees:
Our relationship in the place won't be as close as it
used to be. I also told them that in the years they
worked for me, my door was always open to any of
their problems whether it was person[al] or
business, anything that came up, my door was
always open to them. I always listened to their
problems and always tried to help them in any
possible manner and I told them that I didn't think
the Union could act in that way. [Emphasis
supplied.]
Taken in its entire context, the thrust of Dostis'
testimony establishes that Dostis sought only to
convey to the employees his opinion of how he
thought the Union's presence, as a third party, would
affect Respondent's past relationship with its employ-
ees. The fact is that the employees themselves sought
to change the nature of this relationship when they
expressed their desire-through their signed authori-
zation cards-to have a bargaining representative
represent them in matters affecting their terms and
conditions of employment. The necessary conse-
quence of selecting such a representative is, of course,
that the employees ordinarily deal with their employer
through an intermediary, thus making less frequent
those occasions when individual employees would
find it necessary to present their own problems
directly to management. We are unable to read
Dostis' statement as a threat to impose less favorable
working conditions upon his employees. In our view,
it amounts to nothing more than a rehearsal of the
past relationship between Respondent and its em-
ployees, and a supportable appraisal of the effect on
that relationship necessarily entailed by the advent of
a union. Accordingly, we find that the statement was
not coercive and we shall dismiss this part of the
complaint.
Although we are dismissing the aforementioned
allegation, we find, for the reasons stated in the Trial
Examiner's Decision, that Dostis' remarks in his
March 10 speeches regarding the pension plan
constituted a promise of benefit, and, therefore,
violated Section 8(a)(1) of the Act.
2. We further find, contrary to the Trial Examiner,
that there is insufficient record evidence to establish,
as alleged by the General Counsel, that Respondent's
April 18 wage increase constituted an independent
violation of Section 8(a)(1) of the Act.
The record shows that, in the 3 years prior to 1970,
Respondent had a practice of conducting an annual
inventory around early March and giving its employ-
ees a pay increase within 2 to 4 weeks thereafter. In
1967 the increases were first received by the employ-
ees on April 15; in 1968 on April 6; and in 1969 on
April 12. The 1970 inventory was completed on
February 28, but as of Friday, April 10, a payday, no
raise had been received.
i We find it unnecessary to pass upon the Trial Examiner's
recommendation , in The Remedy section of his Decision , that a bargaining
order would be appropriate in this case on the bases of the Section 8(a)(1)
violations found by him , even if it were not also found that Respondent
violated Section 8(a)(5) Since we agree that Respondent unlawfully
withdrew recognition from the Union, the applicability of N L R B v
Gissel Packing Co, 395 U S 575 , is not in issue
2 All dates hereinafter refer to 1970, unless otherwise indicated
189 NLRB No. 113
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about that date employee Risbrook called the
Board's Regional Office and asked a Board attorney
how the employees "could be released from the
Union." According to Risbrook, the Board attorney
told him to write a letter to the Union and to
Respondent stating that the employees no longer
desired the Union; this, the Board attorney told
Risbrook, would "release the company from any
obligation to the Union and it would release us from
any obligations from [sic] the Union." Risbrook
prepared such a letter, secured the signatures of all
seven employees who had signed authorization cards,
and, on April 13, mailed copies to the Union,
Respondent, and the Board. At the hearing, Risbrook
denied that he had consulted with Dostis about this
letter before undertaking to prepare and send it.
Employee Anglero, who had cooperated in the
preparation of the letter, testified to the same effect.
On April 14, Dostis, having received his copy of the
letter, called Risbrook in and asked him what it "was
all about." Risbrook told Dostis that the employees
had been concerned about their annual raise, and had
sent the letters on the advice of the Board attorney.
Dostis testified that he then called his own attorney
for advice, was told to do whatever he normally did
with regard to pay increases, and "shortly after that
we granted the people the raises that were coming to
them." The employees received substantial wage
increases in their paychecks of Friday, April 17.
Dostis testified that the reason for the unusual delay
in 1970 between the completion of inventory and the
granting of pay increases was the inability of his
accountant, during the rush of the tax season, to
provide Respondent with a profit-and-loss statement
for the preceding year. Dostis also testified that he
"was on a fence as to whether I should or shouldn't do
it [give a raise]"; as discussed below, it is not clear
from the record precisely what point in time Dostis
was referring to in speaking of this dilemma.
The Trial Examiner inferred from this sequence of
events, "contrary to the testimony and denials of
Anglero, Risbrook, and Dostis, that before the
employees withdrew from the union, they had been
told that their usual annual raise would not be given
unless they did so." While the record furnishes a
support for a serious suspicion that the Trial Examin-
er is correct, we think that the General Counsel's case
is too laden with inferences to satisfy his burden of
proving the violation by a preponderance of the
evidence. The Trial Examiner disbelieved Anglero
and Risbrook's testimony that, fearful that they
would not receive their annual pay raise, they decided
on their own to attempt withdrawal from the Union.
The Examiner felt that when Risbrook called the
Board's office on Friday, April 10, he would have had
no reason to believe the raise would not be forthcom-
ing unless he had been so told by Respondent, since
the increase in the preceding year had not been
received until April 12. But, since April 10 was the
equivalent payday in 1970, it would appear that,
having not received a raise on that day, Risbrook may
have independently concluded that the raises would
be late. Furthermore, the Examiner's argument
depends to some extent on precise recall by Risbrook
as to the date on which the last raise had been
received; it could have as easily been in Risbrook's
mind that, in 1968, raises had already been received
by April 6.
The Examiner further opines that it "defies belief"
that, if Risbrook was concerned about the delay in the
increases , he would not have consulted Dostis as to
why they had not been given. We think that such
reluctance by an employee is entirely conceivable. It
is just as easy to speculate that, in Risbrook's
considered opinion, the raises were being deliberately
delayed because of the advent of the Union, thus
leading to Risbrook's decision to seek employee
withdrawal from the Union. Risbrook's own evalua-
tion of the situation, of course, is not probative of the
question of whether Respondent, in fact, was deliber-
ately withholding the increases.
The Examiner then refers to Dostis' testimony
about being "on a fence as to whether I should or
shouldn't do it," and infers that this dilemna must
have been conveyed to Risbrook before he called the
Regional Office, since, as the Trial Examiner puts it,
Risbrook "assertedly inquired and received advice
from the Board attorney, not only on how to
withdraw from the Union, his alleged objective, but
also that the withdrawal letter `would release the
company from any obligation to the Union."'
(Emphasis added.) For one thing, in the context of
Dostis' testimony, we do not think it clear that Dostis'
allusion to being "on a fence" necessarily refers to a
time prior to Risbrook's call to the Board office; it
may be read to allude to Dostis' concern about what
could be done after he had received the withdrawal
letter. For another, Risbrook's testimony does not
show, as the Examiner found, that Risbrook
"inquired" about whether the letter would release the
Company from any obligation from the Union.
Risbrook simply testified that the Board attorney told
him this. At any rate, since it can be as reasonably
surmised that Risbrook was acting from self-generat-
ed fear that the Union's presence was delaying the pay
raise as that he was acting in collusion with Dostis,
such a question would be a natural one to put to the
Board agent.
While we cannot say that the question is free from
doubt, we believe, all things considered, that the
General Counsel has not carried his burden on this
allegation, and we shall dismiss this portion of the
D & C TEXTILE CORP. 771
complaint. In so doing, however, we affirm the Trial
Examiner's additional finding that Respondent's
failure to bargain with the Union about the wage
raises (as well as the unilateral extension of the lunch
hour), at a time when the Union was the statutory
bargaining representative of the employees, violated
Section 8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act,as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner, and orders that the
Respondent, D & C Textile Corporation, New York,
New York, its officers, agents, succesors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order, as herein modified.
1. Substitute the following in place of subpara-
graph 1(b) of the Trial Examiner's recommended
Order:
"(b) Promising employees pensions to discourage
support of District 65, Wholesale, Retail, Office &
Processing Union, National Council Distributive
Workers of America, or any other labor organiza-
tion."
2. In footnote 70 of the Trial Examiner's Decision
change "10" to "20" days.
3. Substitute the attached notice for the Trial
Examiner's notice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice,
and we intend to carry out the Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do any thing that interferes with
these rights. More specifically,
WE WILL NOT coercively interrogate you about
your union membership, activities, or sympathies.
WE WILL NOT make promises of benefits to
discourage your support of District 65, Wholesale,
Retail , Office & Processing Union, National
Council Distributive Workers of America, or any
other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights to self-organization, to
form labor organizations, to join or assist District
65, Wholesale, Retail, Office & Processing Union,
National Council Distributive Workers of Ameri-
ca, or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain
from any or all such activities, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Sec-
tion 8(a)(3) of the Act.
WE WILL, upon request, bargain collectively
with Distract 65, Wholesale, Retail, Office &
Processing Union, National Council Distributive
Workers of America, as the exclusive representa-
tive of all employees in the bargaining unit
described below, concerning rates of pay, wages,
hours of employment, and other terms and
conditions of employment, and, if an understand-
ing is reached, embody it in a signed agreement.
The bargaining unit is: All our warehouse and
clerical employees employed at 220 West 19th
Street, New York, New York, excluding salesmen,
guards, watchmen and all supervisors as defined in
the Act.
D & C TEXTILE CORP.
(Employer)
Dated By
(Representative) (Title)
This an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 36th Floor, Federal Building, 26 Federal
Plaza, New York, New York 10007, Telephone
212-264-0300.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner: Upon a charge filed on
March 11, 1970, by District 65, Wholesale, Retail, Office &
Processing Union, National Council Distributive Workers
of America I (herein called the Union), the General Counsel
of the National Labor Relations Board issued a complaint
on May 8, 1970, which alleges that D & C Textile Corp.
(herein called the Company or the Respondent) had
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) and (5) and Section 2(6) and
(7) of the Act. More specifically, the complaint alleges that
after the Respondent was apprised that the Union
represented a majority of its employees in a unit
appropriate for collective bargaining, it agreed to recognize
the Union and bargained with it, but thereafter withdrew
the previously accorded recognition and refused to bargain
further with the Union. In addition, the complaint alleges
that the Respondent unlawfully interrogated its employees
regarding their union membership, threatened them with
plant closure and other reprisals, and promised them wage
increases and other benefits to encourage their withdrawal
from union membership and to dissipate the Union's
majority status.2 The Respondent filed an answer to the
complaint which denies the substantive allegations of the
complaint and the commission of unfair labor practices.
Pursuant to due notice, a hearing on the complaint was
conducted before me at New York, New York, on July 13,
14, 15, and 27, 1970. Upon the entire record, and by
observation of the witnesses and their demeanor, and after
due consideration of the briefs filed by the parties, I make
the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, a New York corporation whose office
and principal place of business is located in the city of New
York, is engaged in the business of converting, selling, and
distributing textiles and related products. During the past
year, an admittedly representative period, the Respondent
purchased and caused to be delivered to its place of
business in the State of New York, directly from places
outside the said State, goods and materials valued in excess
of $50,000.
I find on the above-admitted facts that the Respondent is
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein, the Union has been and is a
I The names of the parties in the caption appear as amended at the
hearing
2 During the hearing, the complaint was amended to add allegations
that the Respondent further violated Sec 8(a)(1) of the Act by granting its
employees salary increases on April 18, 1970, and by reducing on or about
May 16, 1970, the number of hours which its employees were required to
work for their salary
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent's Staff of Employees
According to the stipulation of the parties, on February
9,3 the date when the Union requested Respondent to
recognize it as the collective-bargaining representative of
Respondent's employees, the following constituted the
entire personnel complement of the Respondent:
Officers:
Samuel Dostis-President
Abraham Kaufman-Treasurer
Raymond Flax-Secretary
Salesmen:
Ralph Lee
Sheldon Barkoff
Office Employees:
Shirley Hochman-Bookkeeper
Georgina Nunez-Billing Operator and Clerk
Sophie Litwak-Telephone Operator
Other Employees:
Antonio Anglero-Truckdnver
Elmer Morales-Shipping Clerk
Nick Nowik-Converter
Robert Risbrook-Order picker
Ronald Smith-Helper
Wagner Roman-Helper
George Smith-Helper
Warehouse Supervisor:
Arthur Lustig
B. The Union's Organizing Campaign
On January 22, after preliminary discussions with Union
Organizers Frank Cherry and Gus Davila, three of
Respondent's employees visited the Union's headquarters
and signed cards accepting membership in the Union and
authorizing it to represent them "as a collective bargaining
agency in all matters pertaining to rates of pay, wages,
hours, or other conditions of employment." In addition,
these three employees paid the Union an initiation fee of $ 5
each and, on the reverse side of the card, signed
authorizations for the Respondent to deduct their union
dues from their salary and to pay it to the Union.4 Before
signing the cards, these employees were told of the wages
and other benefits which workers received under the
Union's contracts, and that to achieve recognition status, it
was necessary that a majority of the employees sign cards.5
On the following evening (January 23), Anglero, Roman,
and George Smith returned to the Union's headquarters
accompanied by two additional employees, Elmer Morales
and Robert Risbrook, who also executed and signed union
3 Unless otherwise noted, all dates refer to 1970
4 The employees who signed these cards on January 22 were Antonio
Anglero, Wagner Roman, and George Smith See G C Exh . 2a, 2b, and 2c
5 According to the uncontroverted testimony of Cherry which is
credited in this regard, no reference was made that the cards would be used
for the purpose of seeking an election
D & C TEXTILE CORP. 773
authorization cards and dues checkoff authorizations and
paid to the Union their $5 initiation fee .6 In addition, at this
meeting Anglero turned over to Cherry an additional union
authorization card and dues checkoff authorization which
had been completed and signed by office employee
Georgina Nunez in Anglero's presence.? At this meeting,
Cherry told the five employees who were present that "we
still got to push for a majority," and was informed by them
that another employee, "a converter," was also interested in
the Union and that they would bring him down to the next
meeting.
On February 4, all five of the employees who had
previously visited the Union's headquarters and had signed
union cards there returned with Nick Nowik, the Respon-
dent's converter. After Nowik explained the nature of his
duties to Cherry, the latter assured Nowik that the Union's
contracts covered converters with like duties and told him
that they "were making more money than he." Nowik then
stated that he, too, "wanted to join the Union," and he
executed and signed a union authorization card and dues
checkoff authorization and paid his union initiation fee.8
With Nowik's card, the Union on February 4, had in its
possession designations from 7 of the Respondent's 10
warehouse and office clerical employees.
C. The Union's Demand for Recognition
Alvin Dicker, the Union's vice president whose junsdic-
tion includes the textile and the knitwear industries, was a
participant in a number of the meetings with Respondent's
employees, including the February 4 meeting at which
Nowik signed his union authorization card. At that
meeting, Dicker discussed with the employees the nature of
the contract demands which the Union would request of
the Respondent, and an employees' negotiating committee,
consisting of Antonio Anglero, Robert Risbrook, and Nick
Nowik, was selected by the employees. According to
Dicker's credited testimony, after the discussion of their
demands, the employees requested him "to go in for a
contract immediately," but, because his duties required him
to leave town, Dicker told them that he would arrange for
Abe Cohen, Assistant Organization Director of the Union,
to take over in his place.
On February 9, Cohen and Organizers Cherry and Davila
visited the Respondent's premises and met Treasurer
Abraham Kaufman. Cohen told Kaufman that they were
from the Union, that a majority of the Respondent's
employees "had signed up" with the Union, and that they
"were there to make an appointment to begin negotiations
for a contract." Kaufman asked Cohen if he could bring in
Mr. Flax, "a partner in the business," and Cohen agreed.
When Secretary Raymond Flax entered the office, he was
introduced by Kaufman to the Union's representatives, and
Kaufman then asked Cohen whether he could prove that
the Union "represented a majority of the workers." Union
Organizer Cherry then produced two sheets of paper on
which there were reproduced photostatic copies of the
seven cards which Respondent's employees had signed and
gave them to Kaufman.9 Kaufman "studied" the two sheets
for a few minutes and then turned them over to Flax who
looked at them for a like period. Flax then returned the two
sheets to Kaufman who "copied all seven names down" on
a sheet of paper and then said that the Union apparently
had signed up a majority of the people" and that
Respondent would negotiate, but not until Samuel Dostis,
the Respondent's president, returned from his Florida
vacation which was expected to last "the rest of the month."
Cohen replied that it would be impossible for the Union to
wait that long, and he suggested that contract negotiations
commence promptly and that Respondent could "bring
Mr. Dostis in" before negotiations were concluded.
Kaufman responded that he wanted Dostis in and present
during the "entire negotiations," and thus avoid the
necessity for Dostis to rely on secondhand reports from
Kaufman. Cohen reported that it was "impossible for us to
wait until the end of the month" for negotiations to start,
and Kaufman promised to call Dostis in Florida and to try
to "get him back sooner." The meeting ended with
Kaufman stating that he would call Cohen "by Thursday or
Friday at the latest [February 12 or 13 ], and let me know
when we could meet, when Mr. Dostis would be back." 10
6 See G C Exhs 3A and 3B
r See G C Exh 4 Anglero so testified without contradiction and I
credit his testimony to this extent In addition, the parties stipulated that
the signatures on the union card were those of Nunez Nunez did not
attend the meeting and did not pay her initiation fee
8 See G C Exh 5
9 See G C Exhs 6 and 7
is The findings and quotes above are based on the testimony of Cohen
and Cherry which I credit in these respects. Kaufman's version of this
meeting vaned significantly from that of Cohen and Cherry which I credit
Thus, although Kaufman admitted that he agreed to arrange a further
meeting with the Union when Dostis returned and that he also agreed to
attempt to accelerate the date of that meeting , Kaufman denied that his
agreement was for a meeting to negotiate a contract and he testified that it
was for all purposes , including "discussions" as to whether or not the
Union represented a majority of Respondent's employees and should or
should not be recognized as their collective-bargaining representative
Kaufman also in effect denied knowledge of the Union's majority status
Thus , although Kaufman admitted that the Union showed him one sheet of
paper similar to G C Exh 6 (which contained photostatic copies of six of
the union cards signed by Respondent 's employees ), he denied that he was
also shown a copy of G.C Exh 7, which contained a photostat of the
seventh card in the Union's possession Moreover, in respect to the copy of
G C Exh 6, Kaufman testified that he observed thereon only "rectangular
shapes" of "printed forms" which were "very unclear," "none of it very
legible," that he "didn't look to see what it was particularly" or examine it
"closely," and that, since he "never saw a union card before," he did not
"know what" the paper was I do not credit Kaufman's testimony in these
respects for I regard it as implausible and unworthy of belief , especially in
the light of subsequent events which undisputedly occurred I base these
conclusions on the following considerations : The copy of G.C Exh 6
admittedly was shown to Kaufman by the Union 's representatives only
when, according to Kaufman 's own testimony, he expressed a doubt that
the Union represented "anybody" In this context , I regard it incredible
and impossible to believe that with photostats of seven cards signed by
Respondent's employees in its possession the Union would exhibit to
Kaufman photostats of only six, and not also the seventh Moreover, in the
light of Kaufman's admittedly expressed doubt of the Union's majority
status, I also do not believe that Kaufman would not then have examined
the Union 's proof of majority status "closely," nor do I believe that if what
Kaufman was shown was "illegible," or if, as he testified, he did not know
what the "paper" was, he would not then have made some inquiry about it,
as he concededly did not . Kaufman did not controvert Cohen's and
Cherry's testimony that he made a list of the names of the card signers
Moreover, when, as described hereinafter , the Respondent conducted later
meetings with its employees regarding the Union , precisely the same seven
employees who signed union cards were the ones who were summoned to
attend In view of the foregoing, as well as his demeanor, I regard
(Continued)
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
In respect to the foregoing the Respondent first contends
that the Union did not on February 9 represent a majority
of its employees in a unit appropriate for collective-
bargaining purposes. The Respondent's argument in
support of this contention may be summarized as follows:
The Union when demanding recognition claimed to
represent a majority of the "workers"; by stipulation of the
parties, the "workers" included Supervisor Arthur Lustig
and two salesmen, or 13 persons in all; of the seven cards
admittedly signed by the employees and in the Union's
possession, four should not be counted, three because the
photostats of the cards exhibited to Kaufman and Flax
were not complete and "illegible"" and the fourth
(Georgina Nunez's) because she assertedly requested the
return of her card before February 9. I regard all of these
contentions as devoid of merit.
Under the Act, supervisors are specifically excluded from
the definition of "employees," and it is well established that
they may not properly be included in a unit of employees
for collective-bargaining purposes. When Cohen stated to
Kaufman on February 9 that he represented a majority of
the Respondent's "workers," he obviously could not
reasonably have been regarded as referring to Lustig, the
nephew of President Dostis, who admittedly was a
supervisor and a highly paid one at that.12 He also could
not reasonably have been referring to the two salesmen
whose weekly salaries then were $ 385 and $375 per week as
included in the "workers" of whom he claimed to represent
a majority. Kaufman made no request of Cohen to
particularize what classifications he included in his
demand. I therefore regard it as specious for the
Respondent to contend that, because the parties stipulated
that Respondent also employed Lustig and two salesmen,
they thereby were included in the unit sought by the
Union. i3
The original union authorization cards signed by
Risbrook, George Smith, and Elmer Morales are part of the
record in this case, and it is not disputed that the signatures
of these employees thereto are genuine and that they were
obtained without misrepresentation or coercion. It is
therefore obvious that these three cards may and should be
counted as part of the Union's majority on February 9,
even assuming that the photostats thereof which were
shown to Kaufman were illegible.14
We come then to the card of Georgina Nunez which the
Respondent contends should not be counted because its
return was requested before February 9, when recognition
was requested. The issue thus posed is for the most part one
of deciding the relative credibility of two witnesses. On the
one hand, Union Organizer Cherry first testified that no
request for the return of her card was made, but later
conceded that on March 10 he was told by employee
Anglero that "Georgina Nunez was frightened and afraid
Kaufman's testimony as generally unreliable and, in respect to the
February 9 meeting with the Union's representatives, I credit it only to the
extent that it accords with the testimony of Cherry and Cohen which I
credit in these regards.
11 Robert Risbrook's, George Smith's, and Elmer Morales'
12 Lustig's weekly salary was then $400 The highest paid warehouse
employee received $170 per week
she was going to lose her job and wanted her card back."
On the other hand, employee Anglero testified that, when
Nunez signed the card at his solicitation on January 23, she
asked him to promise to get it back if she asked for it and he
agreed that he would try to get it back if so requested.
Anglero further testified that Nunez did request him to get
her card back from the Union, but, despite repeated
prodding by Respondent's counsel to refresh his jaded
memory, he was unable to recall the date of her request.
Later, however, when questioned by the Union's counsel,
Anglero's memory suddenly revived as follows:
Q. Do you remember when exactly she asked you?
A. Many times. I couldn't remember when, but she
wanted it back.
Q. After she signed the card?
A. After she signed it, the minute she signed it, she
wanted it back.
Q. What-
A. The following day she said, "Could you get it
back for me?" I asked the man. He said, "Once you sign
a card you can never get it back."
I regard Anglero's testimony regarding the date when
Nunez asked for the return of her union card as
implausible, and I also regard his testimony as generally
unworthy of credence for the following reasons:
Nunez signed her card on January 23, but the Respon-
dent first obtained knowledge thereof on February 9, when
the Union demanded recognition and exhibited to
Kaufman the photostatic copies of all the cards signed by
the employees. The record thus discloses no intervening
event (prior to February 9) which likely would have caused
Nunez to ask for the return of her card. Nunez was present
at the hearing but was not called by Respondent to testify
regarding when she asked for the return of her union card.
As appears infra, on February 9 after the Union's demand
for recognition, Kaufman admittedly interrogated employ-
ees as to whether they had sigred cards, and he was told by
Nunez that she had signed one but was sorry that she did.
On the following day, for the first time , Nunez told
Kaufman that "she was trying to get her card back." In the
light of the foregoing, and Anglero' s initial lack of memory
regarding when Nunez requested the return of her union
card, I regard his later alleged recollection that she did so
either "the minute she signed it" or "the following day" as
implausible and unworthy of credence.
Anglero was one of the first union adherents, he was
active in its behalf, and he was selected as one of the
employee members of the Union's negotiating committee.
Until the Respondent, as described infra, refused to meet
further with the Union and petitioned for a Board election,
Anglero was a frequent visitor to the Union's headquarters
and attended the nightly meetings there of the employees
with the organizers. All that changed after the Union failed
to achieve a quick contract with the Respondent. In April,
before the hearing in this case, Anglero, Risbrook, Nowik,
13 1 note in this regard that both at the hearing in this case and in an
RM petition filed by Respondent on March 9 (Case 2-RM-1611),
Respondent conceded that its supervisors and salesmen are not properly
part of an appropriate unit of its employees
14 As previously noted (see fn 10 , supra ), I do not believe Kaufman's
testimony that the photostats he was shown were illegible
D & C TEXTILE CORP. 775
and all the other union card signers revoked their union
authorization cards, and promptly thereafter were given a
raise in salary by Respondent and, later, an extension of
their lunch period without diminution of salary, conduct
which is charged herein as unfair labor practices by the
Respondent. At the hearing, although called as a witness by
the General Counsel, Anglero displayed open hostility and
defiance to the Union, and partiality toward the Respon-
dent. On the basis of his demeanor, as well as the
implausibility of his testimony noted above, I regard
Anglero's testimony as generally unworthy of reliance.
Contrary to the Respondent's contentions, I conclude
from all the foregoing that on February 9, the Union
represented 7, a majority of the Respondent's 10 warehouse
and office clerical employees; that the Respondent did not
then either question the appropriateness of the unit for
which the Union sought recognition, or the inclusion therein
of clerical employees; 15 that such a unit of all the
employees therefore was appropriate for the purposes of
collective bargaining under the Act; and that the Respon-
dent then agreed to recognize the Union as the representa-
tive of its said "workers" and to engage in later negotiations
with the Union for a collective-bargaining contract when its
president, Dostis, returned from Florida.
D. Interrogation of Employees
1. By Treasurer Kaufman
On February 9, after the Union's representatives left his
office, Respondent's treasurer, Kaufman, admittedly
initiated conversations about the Union with employees
Robert Risbrook, Elmer Morales, Nick Nowik, Antonio
Anglero, "and maybe one or two others" According to
Kaufman, in each such instance he asked the employees
"whether they had signed the [union] cards, and they said
yes, and that was the end of the conversation " Kaufman
further testified that later that same day, employee
Georgina Nunez "came over to me [and] she told me that
she signed the [union] card and that she's sorry she did it."
In addition, Kaufman testified that on the following day
(February 10), Nunez told him that "she was trying to get
her card back." 16
2. By President Dostis
Respondent's president, Samuel Dostis, returned from his
Florida vacation on February 26. According to the
testimony of employee Antonio Anglero, about 3 or 4 days
later, Dostis called together all six of the warehouse
employees who had signed union cardsi7 and first asked
them if "we had signed with the union. "Anglero replied
that they had all signed Dostis then asked the employees,
15 As found above a photostatic copy of the authorization card of
Nunez, a clerical employee, was one of those which was shown to
Kaufman and Flax
16 Kaufman's testimony above was not controverted and is regarded as
admissions contrary to the Respondent's interest It therefore is credited to
this extent, notwithstanding my lack of regard for the reliability of his
testimony generally
17 Of the seven card signers for the Union, only office employee
Georgina Nunez was not present at this meeting Ronald Smith, the only
warehouse employee who did not sign a union card, also did not attend
this meeting
"why we signed with the union." Anglero answered that it
was because the Union "offered pension[s] and benefits
and a lot of things." Dostis then said, "The union won't get
in there unless there 's an election ," and that he "wanted an
election to make sure everybody was happy with the union
one way or the other." That ended the meeting and the
employees returned to work.18
Concluding Findings
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by interrogating employees as to whether
they had signed union cards. In respect to the recurring
question of the lawfulness of such interrogation, the Board
said in its decision in Struksnes Construction Co., Inc.:
In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism
generally tends to cause fear of reprisal in the mind of
the employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 rights. As
we have pointed out, "An employer cannot discriminate
against union adherents without first determining who
they are." [Citation omitted.] That such employee fear is
not without foundation is demonstrated by the
innumerable cases in which the prelude to discrimina-
tion was the employer's inquines as to the umon
sympathies of his employees.19
That such fear was engendered by Kaufman's interrogation
is clearly disclosed by the statement of Nunez to Kaufman,
after he had questioned a number of employees, that she
had signed a union card but was sorry that she did so.
Furthermore, the interrogation by Dostis clearly expressed
Respondent's oppostion to bargaining with the Union.
Accordingly, I am persuaded by the foregoing that the
interrogation of the employees by both Kaufman and
Dostis interfered with, restrained, and coerced employees
in the exercise of their Section 7 rights and that the
Respondent thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act 2°
E. The Bargaining Negotiations Between Respondent
and the Union
1. The retention by Respondent of Attorney
Ostrov
When Dostis returned to New York, he consulted with
his "partners," Kaufman and Flax, and then telephoned
and retained Solomon Ostrov, an attorney who previously
had represented Respondent in a similar matter, to
represent it in its dealings with the Union. According to
Ostrov, whom I credit in this regard, he was told by Dostis
"to check and see whether there was anyway that he did not
18 Except for the date of Dostis' return from Florida , the findings above
are based on the testimony of Anglero which was not specifically
controverted by Dostis and is credited to this extent My reason for so
crediting Anglero (notwithstanding my lack of regard for the reliability of
his testimony) is that in view of this obvious hostility to the Union and his
partiality to the Respondent , his undenied testimony adverse to the
Respondent may be worthy of credence
1s 165 NLRB 1062
20 Struksnes Construction Co, Inc, supra, Barry Industries, Inc, 181
NLRB No 159
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to join up with the Union." Ostrov further credibly
testified that he was given "no instructions at all" from
Dostis regarding the course of action he should pursue in
this regard and that the handling of the matter was "left in
my hands." 21
On or about March 2, Dostis visited Ostrov's office and
furnished him with a list of all of Respondent's employees
and their weekly salaries. Together, Dostis and Ostrov then
went over the list and Ostrov noted alongside the names of
the employees the nature of his or her job and whether
Dostis "wanted" the specific employee included or
"excluded from any contract or any negotiation we would
have ..." 22 The list as so noted (G.C. Exh. 13) marked as
excluded from the unit Respondent's two salesmen and
Arthur Lustig, who is Dostis' nephew and warehouse
supervisor.23
2. The arrangements for a negotiation meeting
After his retention by Respondent, Ostrov telephoned
Union Vice President Dicker. According to the latter's
credited testimony, Ostrov said that he knew the Union,
that he had dealt with it before, and that he would "try to
work out a fair and equitable agreement," and that he
would meet with Dicker on March 3 at 1 p.m. at Ostrov's
office. Dicker in reply, agreed to the date and place of the
meeting, and he told Ostrov that he would be accompanied
by Organizer Cherry and the Employees' Negotiating
Committee "so we could commence the bargaining." 24
After speaking to Dicker, Ostrov advised Dostis of the
meeting which he had arranged with the Union. According
to Dostis whom I credit to this extent, he asked Ostrov
"what was the purpose of the meeting," and he added that
he didn't see any purpose for the meeting at all." Ostrov
agreed that there was "no purpose for the meeting," but he
added that he "just wanted to see what they [the Union]
wanted."
3. The March 3 bargaining negotiations
The parties met on March 3 at the scheduled time and
place. For the Union, there were present Dicker, Cherry,
and the Employees' Negotiating Committee consisting of
employees Anglero, Risbrook, and Nowik. The Company
was represented by Ostrov, President Dostis, and Secretary
Flax. With the single exception of Flax, all of the
21 According to Dostis, he told Ostrov when he retained him that he
"wanted an election" to determine the Union's majority status Ostrov,
however, specifically denied receiving any such instruction from Dostis
Although, as noted hereinafter, I regard the testimony of both Ostrov and
Dostis as unreliable in many respects , I credit Ostrov in this regard for the
following reasons As will appear hereinafter , Ostrov not only did not
petition the Board for an election , but, instead , arranged for and engaged
in a meeting with the Union at which preliminary negotiations of a
collective-bargaining contract occurred No reason is disclosed by the
record why Ostrov, an attorney with prior experience in a Board election
proceeding on behalf of the Respondent, would deliberately have
disregarded and flouted his client's instructions to petition for an election if
such instructions had been given. I do not believe that they were
22 The quotes are from Ostrov' s testimony which is uncontroverted and
credited to this extent
23 The list did not clearly indicate whether the office clericals were
regarded by Respondent as included or excluded
24 Ostrov 's version of this conversation with Dicker was as follows that
he told Dicker that he had been retained by Respondent to represent it,
participants at this meeting testified regarding what
transpired. There is considerable conflict in the record
regarding what did or did not occur and what was or was
not said. Based on my assessment of the demeanor of the
witnesses, their interest and/or bias, the consistency of their
testimony with established facts and/or with affidavits
previously given, and the inherent plausibility or implausi-
bility of their testimony, I find that the following transpired
at this meeting, and that, to the extent that any witness
testified otherwise, his testimony is unworthy of credence.
According to union witnesses Cherry and Dicker whom I
credit in these regards, the meeting started with Dicker
stating that he was there " to negotiate a contract." Ostrov
asked, "What are the demands?" Dicker then, according to
Company President Dostis, admittedly gave Ostrov two
documents and told him that one was the Union's current
contract with the textile industry and the other was the
Union's demands for the 1970 contract renewal negotia-
tions. Ostrov glanced at the documents and, according to
Dicker's and Cherry's credited testimony, asked Dicker
what unit the Union sought to represent. Dicker replied,
"Everybody except the salesmen, and then explained that
he was referring to all the warehouse employees and the
office clerical staff." Ostrov then inquired whether Dostis'
nephew, Warehouse Supervisor Arthur Lustig, was sought
to be included in the unit, and Dicker said, "No." Dostis
then questioned Dicker about the inclusion of the
bookkeeper in the unit, and Dicker replied that the Union
covered bookkeepers under its regular textile agreements.
Ostrov continued to leaf through the Union's current
contract and inquired and received an explanation from
Dicker regarding the hiring procedures under the "New
Workers" clause. According to Company President Dostis,
Ostrov also noted that some of the paid holidays and the
paid sick leave contained in the Union's demands were not
included in the "paper box" contract with which he was
familiar According to Dostis and Risbrook, a witness for
Respondent, Ostrov and Dicker also discussed briefly the
"seniority" and the "Basic Crew" provisions of the Union's
proposed contract.
Finally, after leafing through the Union's documents for
about 20 minutes, according to Dicker's credited testimony,
Ostrov said to him, "Look, I have examined and I know
your contracts. I beleive we can agree to about 70 percent
of the things you have in here. Why should we spend all day
that he understood the Union wanted "an immediate appointment", and
that he "would be pleased to make the appointment with him [Dicker] at
my office [on March 3 at 1 o'clock] " To the extent that Ostrov's testimony
may be regarded as a denial of Dicker 's testimony credited above, I do not
credit it for the following reasons According to Ostrov's further testimony,
the "only purpose" of the March 3 meeting to which he thus assented was
to "find out whether or not they [the Union] had sufficient representation
to be the bargaining agent." If that was the purpose for which the meeting
was intended , Ostrov would have disclosed that purpose to Dicker so that
he could bung to the meeting the authorization cards which the
Respondent's employees had signed , and Ostrov could ascertain whether or
not the Union represented a majority of his client's employees However,
according to Ostrov's own testimony , this asserted purpose of the meeting
was not disclosed to the Union. Because of this and other implausible
testimony noted infra, I credit Ostrov 's testimony regarding the
conversation arranging the meeting only to the extent that it accords with
that of Dicker, and I do not credit Ostrov's testimony regarding the alleged
limited purpose of the meeting
D & C TEXTILE CORP.
going through every clause and every paragraph? Leave this
with me and I will get back to you and we will be able to
clean everything up either tomorrow or the next day."
Dicker agreed but Dostis said that he could not be available
on those dates. Ostrov then suggested Thursday, March 12,
9 days later. Dicker indicated his agreement to the delay in
meeting, provided that Respondent agreed to make any
contract that was negotiated effective as of the following
Monday, March 9.25 Ostrov said, "that sounds fair," and
Dostis said, "okay." The meeting then ended with the
understanding that Ostrov would call Dicker on Friday,
March 6, and advise him what provisions he agreed to and
what issues remained for discussion on March 12.26
F. The Refusal of the Respondent to Recognize and
Bargain Further With the Union
1. The Respondent's retention of new counsel
Having learned at the March 3 meeting the nature of the
Union's contract demands, the Respondent apparently
decided not to bargain further with the Umon. On March 4,
the day following the meeting with the Union, the
Respondent retained new counsel to represent it, and
without disclosing to Ostrov that he was being substituted,
and under the guise that "he wanted to look them over,"
Treasurer Kaufman obtained from Ostrov the copy of the
Union's current contract and 1970 demands which had
been given to Ostrov at the March 3 negotiations.
On Friday, March 6, Ostrov called Dicker at the latter's
office, but Dicker was not in. On Monday, March 9, Dicker
called Ostrov back and asked him which provisions of the
proposed union contract he agreed to. According to
Dicker's credited testimony, Ostrov replied, "I think the
boss is fooling around and I don't know what's going to
happen. I got to talk to him again and I will get back to you
tomorrow." On the following day, March 10, Ostrov called
Dicker and told him that Respondent "doesn't want to sign
a contract with a umon and I have been replaced as the
attorney for the company."
Ostrov was first advised of his dismissal as counsel for
25 Union Organizer Cherry testified that the retroactive date agreed to
by the parties was February 9, but his testimony in this regard was
repudiated by Dicker as erroneous, and I am so persuaded
26 As noted above, I have in the main credited the testimony of Union
Agents Cherry and Dicker that the March 3 meeting was one at which the
Respondent and the Union engaged in preliminary negotiations of a
collective-bargaining agreement. In so concluding, I have refused to credit
Respondent's witnesses who testified on direct examination that this
meeting was devoted to meaningless social amenities and pleasantries.
Indeed, as noted above, at least two of said witnesses, President Dostis and
employee Risbrook (a former umon protagonist who later actively opposed
the Union and solicited the withdrawal of employees therefrom), admitted
that some discussion and negotiation of the Union's proposals took place
Ostrov's testimony of what occurred at the meeting vaned from that of
all the other witnesses He testified that other than "small talk," all that
transpired was that he asked Dicker if he "had any of the cards alleged to
have been signed by the workers of D & C Textile Corp so that I can
verify whether or not Local 65 was the bargaining representative of the
workers," and that Dicker replied that he did not have the signed cards
with him According to Ostrov, he then suggested that another meeting be
scheduled so that he could "verify" and "decide" whether the Union
represented a majority of Respondent's employees, and "whether or not I
was in a position to talk to him [Dicker] . " I have previously indicated
my disbelief of Ostrov's testimony that the March 3 meeting was arranged
by him for the limited purpose of ascertaining whether or not the Union
represented a majority of Respondent's employees (see In 23, supra ) I
also do not credit his testimony regarding what transpired at the meeting
for the following reasons Ostrov's notes (G C Exh 14) admittedly made
777
Respondent on or about March 9. On March 11, he sent
Respondent the following bill for the services he had
rendered: 27
March 11, 70
D & C Textile Corporation
220 West 19th Street
New York, N.Y. 10011
To conferences with representatives of Union of
Local 65 and committee of employees; to
conferences had with Messrs. Dostis and Flax; to
examination of contract form of District 65 and
new demands for 1970; to advices rendered; to
being advised not to proceed with appointment
for 3/12/70;
Fee on time basis ........... 135.00
Thereafter on April 22, at the request of President Dostis,
Ostrov wrote the following letter to Respondent: 28
April 22, 1970
D & C Textile Corp.
220 West 19th Street
New York, New York
ATTENTION: MR. SAM DOSTIS
Dear Sam:
This is to clarify my bill to you of March 11, 1970. At no
time was there any negotiation with Local 65 or any
recognition of Local 65 as the designated bargaining
representatives of your employees. The meeting was
only for the purpose of learning just what the position
of the Union was and whether the employees had in fact
designated the Union. No designations were presented
and an appointment to determine such fact was
at the meeting, corroborate Cherry's and Dicker's testimony that the
parties discussed the unit coverage which the Umon sought. In this regard,
the notes state that the Union "want[s ] all office & warehouse
help-exclude Arthur Lustig." According to Ostrov, the Union's contract
and demands were given to him by Dicker at the conclusion of the meeting
as the parties were about to leave . However, most of the witnesses,
including Respondent 's president , Dostis, either testified or admitted that
these documents were given to Ostrov at the outset of the meeting and that
at least some of the provisions therein were discussed by Ostrov with
Dicker as Ostrov leafed through the pages of these documents
Significantly, Ostrov's copy of the Union's demands (Resp. Exh 2-A)
contains notations , admittedly made by Ostrov, which appear to indicate
that the parties discussed "basic crew," "holidays," and an 11-percent
increase to the employees over a 2-year contract period According to
Ostrov, these notations were made by him in the document after the parties
left the meeting, for the purpose of later discussion with the Union, just in
case it established its majority status and bargaining later ensued
However, I regard Ostrov's explanation for making these notations as
implausible and unworthy of credence , and I am persuaded that all of
these notations were of subjects discussed by the parties at the meeting
Finally, Ostrov admitted that at the meeting , in response to his question,
Dicker told him that the Union was seeking an I1-percent increase for
employees over a 2-year contract period , an admission which I regard as
inconsistent with Ostrov's other testimony that no negotiations were
conducted at this meeting.
27 G C Exh 15
28 Resp Exh. I
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tentatively scheduled for March 12, 1970 which was
never kept.
The union contract form was left only for perusal and
information. No discussion of terms or negotiation or
even recognition was held at the March 3, 1970 meeting
at my office.
Very truly yours,
Solomon Ostrov
filed a petition with the Board on behalf of the Respondent
seeking an election to determine whether the Union
represented its employees. According to the petition, the
unit involved "included all warehouse employees," and
"excluded office employees, salesmen , and supervisors as
defined in the Act." A copy of this petition was received by
the Union on March 10.31
3. The meeting of the Union and Respondent
with the State Board of Mediation
According to Dostis, Ostrov sent him this letter pursuant to
his request that Ostrov "clarify his invoice" and state
"exactly what work he did for the invoice he presented us."
According to Ostrov, he sent Dostis the letter as a result of
the following conversation with Dostis:
Dostis: Look, I have your bill. I would like to have,
before I pay it,-a resume of what happened up at the
meeting.
Ostrov: Is that what is holding up payment of the bill,
or does your new counsel want it?
Dostis: What difference does it make, send it to me.
Both Dostis and Ostrov denied that Dostis asked Ostrov to
comment on whether or not Respondent had negotiated
with the Union at the meeting of March 3.
I regard the testimony and denials of both Dostis and
Ostrov regarding the letter as implausible and unworthy of
credence, and I conclude, contrary to their testimony and
denials, that Dostis specifically requested Ostrov to deny in
the letter that recognition or bargaining had occurred at the
March 3 meeting. My reasons for so concluding are as
follows: (a) Ostrov's bill of March 11 clearly and
specifically stated the nature of the services rendered and
for which he was charging. There was thus, no need for
clarification of Ostrov's bill. (b) Ostrov's letter in response
to the alleged request for clarification does not even
attempt to clarify the nature of the services he rendered. To
the contrary, the letter only negates that recognition of the
Union or bargaining occurred at the March 3 meeting. (c)
At the time Dostis asked for and Ostrov sent this letter, the
Respondent had notice of the pendency before the Board of
the Union's instant charge of unfair labor practices.
Therein it was alleged that after recognizing and commenc-
ing negotiations with the Union, the Respondent broke off
further negotiations and thereby violated the Act. All of the
foregoing, including the contents of Ostrov's letter, make it
quite apparent to me that the denial in the letter of
recognition and bargaining was specifically solicited by
Dostis from Ostrov for the purpose of defense against the
unfair labor practice charges then pending against
Respondent.29
2. The Respondent's petition for an election
On Monday, March 9, Respondent's new attorneys30
29 As the Supreme Court said in N L R B v Walton Manufacturing Co,
369 U S 404, 408, quoting with approval from the opinion of Judge
Learned Hand in Dyer v McDougall, 201 F 2d 265, 269 (C A 2)
For the demeanor of a witness
may satisfy the tribunal, not only that the witness' testimony
is not true, but that the truth is the opposite of his story, for the denial
of one, who has a motive to deny, may be uttered with such hesitation,
discomfort, arrogance or defiance, as to give assurance that he is
On March 18, pursuant to a request made by the Union, a
meeting between Respondent and the Union was held by
the New York State Board of Mediation. At that meeting,
William Krupman, a member of Respondent's new law
firm, stated that regardless of the Company's prior course
of conduct in respect to the Union, it would not negotiate
with the Union unless it was certified by the Board. In
response, the Union accused the Respondent of stalling to
give it time to coerce the employees and proposed that an
election be conducted by Krupman that same day.
Krupman left the meeting stating he would call his client
and, when he came back, he said that his client insisted on a
Labor Board election. The session ended without any
agreement by the parties for meeting further. There has
been no meeting or further bargaining between the
Respondent and the Union since that date.
G. Concluding Findings in Respect to the Refusal
to Recognize and Bargain
As found above, on February 9, following an inspection
by Respondent's treasurer, Kaufman, of photostatic copies
of seven union authorization cards signed by employees of
the Company, Kaufman agreed that Respondent would
recognize the Union as the collective-bargaining represent-
ative of its employees and that bargaining negotiations
would begin when Respondent's president, Dostis, returned
from Florida. Thereafter, on March 3, the Respondent
ascertained the nature of the Union's contract and
monetary demands, engaged in preliminary negotiations
with it in respect to inclusions in and exclusions from the
unit, new hires, basic crew, seniority, and holidays, agreed
to meet again on March 12 for further negotiations, and
also agreed that any contract thereafter negotiated would
be effective as of March 9. However, following its March 3
negotiations with the Union, the Respondent changed its
mind about further recognizing it, filed an RM petition
with the Board to conduct an election among its employees
to determine the Union's majority status, and refused to
bargain further with the Union. On March 9 when the
Respondent filed its RM petition, it knew that the Union
still represented a majority of its employees in any and all
units appropriate for collective-bargaining purposes.32
fabricating, and that, if he is, there is no alternative but to assume the
truth of what he denies
30 Ostrov was succeeded as counsel for Respondent by the law firm
which represents it in this case
31 See fn 12, supra The Company's petition was later dismissed by the
Regional Director on May 11 because he regarded the Union's charge in
this case as meritorious and had issued a complaint thereon
32 The identity of the seven employees who signed union cards was
D & C TEXTILE CORP. 779
There was thus no basis for a good-faith doubt by the
Respondent of the Union's majority status.
In N L.R.B. v. Gissel Packing Co,33 the Supreme Court,
referring to its earlier decision in United Mine Workers of
America v. Arkansas Oak Flooring Co.,34 said:
We therefore pointed out in that case, where the union
had obtained signed authorization cards from a
majority of the employees, that "[i ]n the absence of any
bona fide dispute as to the existence of the required
majority of eligible employees, the employer's denial of
recognition would have violated Section 8(a)(5) of the
Act." We see no reason to reject this approach to
bargaining obligations now ... .
The same rationale applies to this case where the employer
granted recognition on the basis of authorization cards,
commenced bargaining, and then withdrew recognition and
refused to bargain further. It is by now well settled that,
absent conflicting union claims, an employer may lawfully
recognize a labor organization as the exclusive representa-
tive of his employees in an appropriate unit on the basis of a
card established majority.35 Once recognition is thus
validly accorded the union, the Board has held that, as in
the case of certifications, refusal-to-bargain orders, and
settlement agreements, the parties are entitled to a
reasonable time to negotiate a collective-bargaining
agreement, regardless of an interim loss of majority or an
intervening representation claim of another union 36 Thus,
the Board has found that an employer defaulted in his
bargaining obligation in violation of Section 8(a)(5) of the
Act where, after the first bargaining session, the employer
withdrew recognition on the ground that the union, which
had previously been lawfully recognized, no longer
represented a majority of the employees as a result of a
substantial employee turnover.37 or employee
disaffection.38 Conversely, the Board has upheld a union-
security agreement concluded by an employer with a
voluntarily recognized majority representative within a
reasonable time after recognition, even though at the time
of the contract the union had lost the support of a majority
of the employees.39
The Respondent's contention in respect to the foregoing
is that it neither recognized the Union as the majority
representative of its employees, nor negotiated thereafter
with it, but I have found to the contrary on the basis of the
evidence which I credit.40 Accordingly, it follows that since
made known to the Respondent by the Union on February 9, and by
Respondent's unlawful interrogation of employees on that day and
thereafter Of the seven employees who signed the union cards, only
Georgina Nunez had by March 9 indicated a possible lack of interest in the
Union, and her expression of regret for signing apparently resulted from
Kaufman's unlawful interrogation of employees on February 9 In the light
of the continued adherence to the Union of the remaining six card signers
as disclosed by their joint affidavit given to the Union on March I1 (G C
Exh I1), I regard Dostis' testimony, that one or two employees had
expressed an interest in a Board election, as unworthy of credence and I do
not believe it The Respondent thus had knowledge that the Union
represented 6 of the 7 employees in the warehouse unit which it conceded
was appropriate in its RM petition and at least 6 of the 10 employees in the
appropriate unit sought by the Union which included office clerical
employees
33 395 U S 575 at 597-598
34 351 U S 62
35 N L R B v Gissel Packing Co, supra, 595-600
36 Keller Plastics Eastern, Inc, 157 NLRB 583, Ozella Harrington, d/b/a
Kimbrough Trucking Co, 160 NLRB 954, San Clemente Publishing
the Union was the employees' lawfully recognized repre-
sentative entitled to a reasonable time within which to
bargain for a contract and the Respondent refused after
March 3 to resume negotiations, under controlling
precedent, it defaulted in its statutory obligation, and
thereby engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.41
H. Additional Unfair Labor Practices
After the Respondent retained new counsel, in addition
to refusing to bargain further with the Union, it engaged in
three other activities, each of which is alleged by the
amended complaint to constitute additional violations of
the Act. The three such allegedly illegal activities of the
Respondent were President Dostis' March 10 speeches to
the employees who signed union authorization cards, an
April 18 raise in pay to all its unit employees, and a May
extension of their lunch period without diminution of
salary. Each of these activities of Respondent will be
considered seriatim.
1. Dostis' speeches to the employees on March 10
On March 10, President Dostis twice convened meetings
of the seven employees who had signed union cards and
spoke to them.42 That afternoon after work ended, six of
the employees to whom Dostis had thus spoken 43 attended
a meeting called by the Union to consider what course of
action should be taken in the light of the Respondent's
refusal to bargain further with the Union. At this meeting,
according to the credited testimony of Union Agents
Cherry and Dicker, the employees reported that Dostis had
threatened and intimidated them in his speeches. The
union agents accordingly brought the six employees to the
office of Donald Grody, the Union's general counsel, and,
according to his credited testimony, he questioned them
regarding what Dostis said at the two speeches he had
made that very day On the basis of the employees'
responses, Grody prepared a draft of a joint affidavit for
the six employees to sign which he read to them. However,
because of the lateness of the hour, the affidavit could not
be typed that evening.
The following afternoon after work, the same six
employees returned to Grody's office, and according to the
credited testimony of Grace Case, Grody's secretary, she
Corporation, 167 NLRB 6, cf Allied Supermarkets, Inc, 169 NLRB No
135
37 Kimbrough Trucking Co, supra
38 San Clemente Publishing Corporation, supra, see also Universal Gear
Service Corporation, 157 NLRB 1169
39 Keller plastics, supra
40 At the hearing , the Respondent also urged that Attorney Ostrov
exceeded his authority if in fact he bargained with the Union, but that
contention is not raised in the Respondent's brief and apparently has been
abandoned In any event , I regard the contention as without merit since no
notice of any limitation on Ostrov's authority to negotiate was conveyed to
the Union, notwithstanding that Respondent 's officers, Dostis and Flax,
were present at the negotiations
4i See cases cited in fn 36 , supra, cf Snow & Sons, 134 NLRB 709, enfd
308 F 2d 687 (C A 9)
42 Treasurer Kaufman named the seven employees who were so
addressed by Dostis and admitted that they were , "the people who signed
the cards Yes, seven of them I would say that is correct "
43 All except Georgina Nunez
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gave them the affidavit which she had typed from his draft
and instructed them "to read it thoroughly" and to tell her
"if there was anything in there which they disagreed with."
Case further credibly testified that when the six "finished
reading it [the affidavit]," they brought it out already
signed from Grody's office to her desk, that she again
inquired, "Are you sure everything in here is accurate?,"
that the six answered, "Yes," and that she then added her
notarial signature thereto.
The affidavit thus signed by the six (G.C. Exh. 11) states,
inter aka, as follows:
5. On March 10, 1970, all the warehouse employees
were called together by Mr. Dostis in the warehouse.
Mr. Dostis told us that he would never sign a contract
with the Union and that we were ungrateful to him
because we signed Union authorization cards He said
that we were all part of one big family and that we had
no right to do what we were doing; that if we continued
this, he would sooner shut the plant than bargain with
the Union. Mr Dostis also told us that any problems we
had could be worked out with him and he said we could
get Blue Cross coverage, a pension plan and anything
else we wanted as long as we don't have a union. He
also told us that we could look forward to wage
increases if we got rid of the Union
7. In the afternoon of March 10, 1970, Mr. Dostis
called all the warehouse employees together again and
repeated the same things that he had stated to us in the
morning meeting, emphasizing that he would sooner
close down than do business with the Union
Only three of the employees who signed this point
affidavit were called to testify at the hearing in this case:
two (Anglero and Nowik) by the General Counsel and one
Risbrook by the Respondent. Undoubtedly because of his
known and openly displayed hostility to the Union,44
Anglero was not questioned either about Dostis' speeches
or the truth of the affidavit which he had signed for the
Union. However, when Nowik and Risbrook were
questioned about Dostis' March 10 speeches, their recital of
what he said bore no resemblance to the statements
attributed to him in their affidavit. And, when questioned
about the variance, both Nowik and Risbrook denied that
they had read the affidavit before signing it,45 denied that
Grody read the draft of the affidavit to them before it was
typed,46 and denied the truth of its contents. Moreover,
Nowik and Risbrook further testified that the information
contained in the affidavit was not furnished by them or the
44 See the fifth, sixth, and seventh paragraphs in the section entitled
"Concluding Findings" under section C, supra
45 Risbrook conceded that he "glanced" at it
46 Risbrook admitted that Grody read "the general parts of it" to them
47 Thus, according to both Nowik and Risbrook, Grody asked Dicker,
"What should we put in the affidavit"", and Dicker replied, "Well, the
usual thing " However, both Nowik and Risbrook later admitted on cross-
examination that Grody questioned the six employees who signed the
affidavit regarding what Dostis had said in his speeches and received
responses from them
48 See the seventh paragraph in the section entitled "Concluding
Findings" under section C, supra
49 1 accord the affidavit which Risbrook and Nowik thus repudiated no
substantive or testimonial value N L R B v Quest-Shon Mark Brassiere
other employees who signed the affidavit, but originated
with Union Vice President Dicker and Union Counsel
General Grody, thereby in effect accusing them of
subornation of perjury,47 Finally, whem asked why then he
signed the assertedly false affidavit, Risbrook answered,
"That is a good question. You could say that I went along
with what the other fellows did." Similarly, Nowik
conceded that "it didn' t make any difference to [him] what
the affidavit said, [he] signed it [nevertheless]."
As previously noted, Risbrook, Nowik, Anglero, and all
the other employees who signed union cards revoked their
authorizations in April before the hearing in this case and
promptly thereafter received a pay raise from
Respondent.48 At the hearing, both Nowik and Risbrook
displayed obvious animus to the Union they had previously
supported and partiality to the Respondent. In the light of
all the foregoing, including their repudiation of the truth of
the affidavit which they signed voluntarily, I regard their
testimony and denials as generally unworthy of belief or
reliance, and credit it only when it appears adverse to the
Respondent whom they now obviously favor or when it
accords with other testimony which I credit. Accordingly,
and based only on testimony adduced at the hearing which
I credit,49 I find that in his March 10 speeches to the
employees who signed union cards Dostis told them, inter
aka:
a. That Dostis' "understood that some people signed
some union cards and that I wasn't sure it was representa-
tive of all of our employees"; 50
b. That "Mr. Dostis said that they [Respondent] would
file for an election"; 51
c. That they "were all part of one big family"; 52
d. That they should "consider what they were doing
with regard tojoining a union"; 53
e. That "there were some things that I don't think they
took into consideration. They would have to pay union
dues . . . . They would have to pay initiation fees and they
would be subject to fines." 54
I. That if "we had problems we could have come to him
to talk to him. At least talk to him before we signed any
[union] cards"; 55
g That "our relationship in the place won't be as close
as it used to be"; that "in the years they had worked for me,
my door was always open to any of their problems whether
it was person[al] or business, anything that came up, my
door was always open to them"; and "that if they had any
problems," I "would try to solve them. I would help them
wherever I could"; 56
h. That Dostis said that he hoped the employees would
Co, 185 F 2d 285, 289 (C A 2), but see 3 Wigmore, Evidence Section
1018(b), 687-688 (3d ed )
50 The foregoing is based on the testimony of Dostis which is credited to
this extent
5i Nowik's testimony is credited to this extent
52 Risbrook's testimony is credited to this extent
11 Treasurer Kaufman's and Risbrook 's testimony are credited in this
regard
54 The foregoing is based on Dostis' testimony which is credited to this
extent
55 This finding and quotes are from Risbrook 's testimony which is
credited to this extent
56 The findings and quotes above are from the testimony of Dostis
which is credited to this extent.
D & C TEXTILE CORP 781
"stay loyal" and continue to work "until you retire," and
that "a pension plan was in the consideration stage for all
the loyal employees."57
Concluding Findings in Respect to Dostis'
Speeches
The complaint in this case alleges that in his speeches,
Dostis warned employees to refrain from assisting or
supporting the Union, threatened employees with plant
closure, discharge, and other reprisals, and promised
employees wage increases, a pension plan, and other
benefits, all to discourage employee support of the Union,
and that Respondent thereby violated Section 8(a)(1) of the
Act.
Except for the employees' affidavit to which I accord no
substantive or testimonial value,58 there is no evidence that
Dostis threatened employees either with discharge or plant
closure to discourage support of the Union. However, the
testimony credited above does disclose that Dostis said that
the previously close family "relationship" would not
continue "as close as it used to be," and I find that by this
statement Dostis did threaten his employees with less
favorable working conditions if the Union represented the
employees. The credited testimony also subtly but never-
theless clearly suggests that the continuation of Dostis'
open door policy for the resolution of "personal" or
"business" problems would no longer obtain if the Union
represented them. Finally, the statement of Dostis that a
pension plan "was under consideration for all the loyal
employees" clearly constituted a promise of benefits to
employees for repudiating the Union. In these limited
respects, I regard Dostis' speeches as impinging on the
Section 7 rights of his employees, and I conclude that
thereby the Respondent interfered with, restrained, and
coerced employees in the exercise of said rights and
violated Section 8(a)(1) of the Act.
2. The April 18 wage increase
It has been the Respondent's practice during the past 3
years to conduct an inventory annually in early March and
to give its employees a pay increase within 2 to 4 weeks
from the completion of the inventory. The 1970 inventory
was performed and completed by the Respondent's
warehouse employees on February 28, but the usual raise
was not given thereafter.
On or about April 10, assertedly without asking
Respondent why their usual annual raise had not been
given them and also assertedly without prior consultation
with Respondent, the employees allegedly decided to get
the pay increase their "own way" by getting out of the
Union According to Risbrook, he called the Board's
Regional Office for advice on how the employees "could be
released from the union," and he was advised by Mr.
Bennett, a Board attorney, to write "a letter to the union
and a letter to the company" which said "we didn't wish
57 The findings above are based on Nowik's testimony which is credited
to this extent
58 See fn 49, supra
59 The raises thus given were as follows Elmer Morales, shipping clerk,
from $125 to $145, Nick Nowik, converter, from $110 to $130, Robert
any more to be represented by the union , that that would
release the company from any obligation to the union and it
would release us from any obligations from [sic] the
union." Risbrook assertedly then composed a letter "at
home" and later solicited and secured the signatures of all
the Respondent 's employees who previously had signed
union authorization cards to at least three copies of the
letter so composed . The letter thus prepared and executed
(G.C. Exh. 9) stated as follows:
District 65
13 Astor Place
N.Y.C. N.Y.
Att. Mr . Al Dicker
This is to inform District 65 that the workers of D &
C Textile Corp. who signed cards with District 65 back
in January , 1970 wish not to be represented by District
65 as of today April 13, 1970. After meeting among
ourselves the undersigned unanimously agree that we
no longer want to be represented by District 65. We
renounce the union & the cards we signed , thereby
releasing the union of further representation of we the
workers of D & C Textile Corp. Located at 220 W. 19th
St. N.Y.C., N.Y.
/s/(1) Robert Risbrook
/s/(2) Nick Nowik
/s/(3) George Smith
/s/(4) Antonio Anglero
/s/(5) Wagner Roman
/s/(6) Elmer Morales
/s/(7) Georgina Nunez
On April 13, Risbrook mailed original signed copies of the
above letter by registered mail not only to the Union and
Respondent, but also to the Board 's Regional Office.
On April 14, upon receipt of the letter, Dostis, who
assertedly "knew nothing about that letter" before its
receipt, called Risbrook into his office and asked him what
the "letter was all about." According to Dostis, Risbrook
replied that "We usually get raises around the middle of
April"; that he "didn't know whether they were getting
raises or not this time"; that he had called the Labor Board
about the "problem"; and that the Labor Board had "told
him to write a letter to the union and to us. And then we
could do whatever we wanted to do." Dostis further
testified that he then consulted with his attorney, and
"shortly after that we granted the people the raises that
were coming to them."
The Respondent's payroll records disclose that for the
week ending Saturday, April 18, each of the warehouse
employees received a raise in pay of $20 per week, each of
the office clerical employees received a raise of $10 per week,
and that no raise was given to the two salesmen or to
Warehouse Supervisor Lustig.59 Actually these raises were
put into effect by Respondent retroactively to the
Risbrook, order picker, from $130 to $150, Wagner Roman, helper, from
$105 to $125, George Smith, helper, from $105 to$125, Ronald Smith. order
picker, from $165 to $185, Antonio Anglero, truckdriver, from $170 to
$190, Shirley Hochman, bookkeeper. from $ 240 to $250. Georgina Nunez,
billing operator and clerk, from $100 to $110 and Sophie Litwak, telephone
(Continued)
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beginning of the week in which Dostis received a copy of
the letter in which his employees "renounce[d]" the Union,
for they were reflected in the paychecks received by the
employees on Friday, April 17.60
Concluding Findings in Respect to the April 18
Pay Raise
As previously noted ( see fn . 2, supra), the complaint in
this case was amended during the hearing to include an
allegation that the Respondent had interfered with,
restrained, and coerced employees in the exercise of their
Section 7 rights, by granting the above-described wage
increase to the employees in the appropriate unit alleged in
the complaint. It is undisputed that at the time Respondent
gave its employees the above-described wage increase, there
were pending and under consideration by the Board's
Regional Director, not only the Union's charge in this case
which alleged that the Respondent had violated Section
8(a)(5) of the Act by withdrawing recognition and refusing
to further bargain with the Union, but also the Respon-
dent's RM petition for an election to determine whether the
Union represented a majority of its warehouse employees.
Dostis' explanation for granting the wage increases when
he did was that he always gave his employees raises
"around the middle of April," and because he was advised
by his new counsel that if he withheld raises that he
"normally give[s]," it would violate "the labor regulations."
Dostis also attempted to explain his failure to give the
employees' raises until after they had "renounced" the
Union by first testifying, "It wasn't the usual time we gave
the raises. We usually give the raises in the middle of
April." However, when his attention was called to the fact
in some prior years, he had given raises ito employees as
early as the week ending April 6, he then testified that the
reason for the delay in 1970 was as follows:
We take inventory around the beginning of April 61
It usually takes my accountant about a month, a month
and a quarter to get the figures together and let us know
how we made out on the previous year. On this occasion
it took a little longer than normal but we never give
raises until our accountant tells us how much we made
the previous year, whether we made any money or how
much we made. We always give our raises commensu-
rate with the previous year. At this time we had [a]
fairly good year and the accountant was a little later
than normal. He said the tax situation was killing him
and he was later than usual in giving us the figures.
I regard as a strain on credulity and unworthy of belief
the testimony of Anglero, Risbrook, and Dostis that the
employees withdrew from the Union without any prior
consultation with or knowledge thereof by Dostis and
impliedly without suggestion by and/or assistance from
him. My reasons for this conclusion are as follows.
and clerk, from $100 to $110, and Sophie Litwak, telephone operator, from
$125 to $135
so According to the Respondent's payroll records, its workweek ends on
Saturday, but its employees do not work on Saturday, and they are paid on
Friday, the day before the official end of the week
6i This is an obvious inadvertent error either by Dostis or the reporter
and should read "March " Actually, inventory was taken in 1970 on
February 28
62 Significantly, the Respondent adduced no testimony that the
According to Risbrook and Anglero, one of the asserted
motivations for the employees withdrawing from the Union
was their failure to get the usual annual pay raise after
inventory and their decision to get it on their own without
the Union. The obvious fallacy with the credibility of this
testimony is that when Risbrook called the Board's office
on Friday, April 10, there was no reason for him to believe,
unless he had been so told by Respondent, that the usual
raise would not be forthcoming, for in 1969 the annual
increase was given on April 12. Moreover, even assuming
that the annual raise was late, it defies belief that Risbrook
or the other employees would not first have inquired of
Dostis or one of Respondent's other officers as to why it
had not been given. I believe that such inquiry was made
and that the employees were told that, unless they withdrew
their support of the Union, the raise would not be given. I
note in this regard that one of Dostis' many different
explanations for not giving the 1970 raise sooner was, "I
was on a fence as to whether I should or shouldn't do it
[give a raise]," a quite apparent reference to the dilemma
caused by the then pendency of Respondent's RM petition
and the Union's charge in this case. That dilemma
obviously must have been conveyed to Risbrook by
Respondent before he called the Board's office, since he
assertedly inquired and received advice from the Board
attorney, not only on how to withdraw from the Union, his
alleged objective, but also that the withdrawal letter "would
release the company from any obligation to the union."
Moreover, he then told Dostis, according to the latter's own
testimony, that he had been so advised by the Board that
"then we could do whatever we wanted to do." Finally, I
note that as soon as Dostis received the employees' letter of
withdrawal from the Union, he gave them "the raises that
were coming to them,"62 that no raises were given to the
salesmen and the supervisor who were not in the unit which
the Union sought to represent, that in the case of a number
of employees the raises were substantially greater than any
previously received by them, and that they were effected
retroactively to the very date on which the employees
renounced the Union.63
All of the foregoing persuades me, contrary to the
testimony and denials of Anglero, Risbrook, and Dostis,
that before the employees withdrew from the Union, they
had been told by Dostis that their usual annual raise would
not be given unless they did sob' Accordingly, I find that
by granting the said pay raise, the Respondent engaged in
further unfair labor practices within the meaning of Section
8(a)(1) of the Act 65
Additional grounds exist for concluding that the
Respondent violated the Act by granting the April 18 pay
raise to its employees. As found above, at the time the
Respondent gave this increase to the employees, the Union
was their exclusive collective-bargaining representative and
assertedly delayed accountant's report was received by it before the raises
were given , the report was not put into evidence , and the accountant was
not called to corroborate Dostis' testimony (which I do not credit)
regarding the asserted reason for the delay
63 1 also note, but do not rely on, the coincidence that what transpired
in respect to employee raises is precisely what , according to the affidavit
repudiated by Risbrook, Dostis allegedly threatened on March 10
64 See case cited and quotation therefrom in fn . 29, supra
65 N L R B v Exchange Parts Company, 375 U S 405
D & C TEXTILE CORP.
the Respondent already had violated Section 8(a)(5) and (1)
of the Act, by refusing after March 3 to resume negotiations
with it. It is undisputed that the Respondent did not consult
with or bargain with the Union before effectuating the
April 18 increases. Accordingly, I find that by the said
unilateral action, the Respondent engaged in further unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.66
3 The additional time granted employees for
lunch
According to the Respondent's payroll records, its
employees are paid for a 40-hour week consisting of 5 8-
hour days. The starting hour each day is 8:30 a.m., the
official payroll record lunch period is from 12:30 to 1 p in.,
and the quitting hour is 5 p.m. According to Risbrook and
Dostis, however, notwithstanding the Respondent's re-
cords, in actual practice, the employees were given a lunch
period of three-quarters of an hour from 12:15 p.m. to 1
p.m. and thus worked only 38-3/4 hours per week. On or
about May 16, the Respondent increased the lunch hour
period of its employees to a full hour, without either
changing the starting or quitting time or reducing their
salaries commensurately.67
Concluding Finding in Respect to the Extension of
the Lunch Hour
The complaint as amended at the hearing alleges that on
or about May 16, Respondent changed the working
conditions of its employees in the alleged appropriate unit
by reducing their workday from 8 to 7-1/2 hours and their
workweek from 40 to 37-1/2 hours without a change in
their salaries. It is undisputed that the change, whether one-
quarter hour or one-half hour per day, was effected by
Respondent without notice to or bargaining with the
Union, which, as found above, was their exclusive
bargaining representative. Clearly, the hours which the
employees worked is a condition of employment regarding
which there was an obligation by the Respondent to
bargain with the Union, their representative, before making
any change.
Accordingly, I find and conclude that by making the
above-described unilateral changes in the hours of
employment of its employees in the unit represented by the
Union, the Respondent engaged in further unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act 68
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship 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.
66 NLRB v Benne Katz, etc d/b/a Williamsburg Steel Products
Company, 369 U S 736
67 According to Dostis and Risbrook, the change resulted from a
V. THE REMEDY
783
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In the light of the Respondent's extensive unfair labor
practices which have effectively and completely destroyed
the support which the Union previously and completely
destroyed the support which the Union previously enjoyed
among the Respondent's employees, and since I regard the
possibilty of erasing the effects of the past practices and
ensuring a fair election as practically nonexistent, I would
recommend a bargaining order to restore the status quo
which existed before the violations of Section 8(a) (1) of the
Act, even if I had not also found that the Respondent
violated Section 8(a) (5). 69
Upon the basis of the foregoing fmdings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, D & C Textile Corp., is an employer
engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. District 65, Wholesale, Retail, Office & Processing
Union, National Council Distributive Workers of America,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All warehouse and clerical employees of Respondent,
employed at its place of business at 220 West 19th
Street, New York, New York, excluding salesmen,
guards, watchmen and all supervisors as defined in the
Act.
4. At all times material herein, District 65, Wholesale,
Retail Office & Processing Union, National Council
Distributive Workers of America, has been the exclusive
representative of the employees in the aforesaid unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
5. By withdrawing previously extended recognition of
the above-named Union and by refusing after March 3,
1970, to bargain further with it as the exclusive representa-
tive of its employees in the aforesaid appropriate unit,
concerning rates of pay, wages, hours of employment, or
other terms or conditions of employment, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By unilaterally, and without notice to or bargaining
with the said Union as the exclusive representative of the
employees in the aforesaid appropriate unit, granting said
employees increases in salaries and reduction in their
working hours without loss of pay, the Respondent has
engaged in and is engaging in further unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
request made by the employees
68 N L R B v Katz, supra
69 N LR B v Gissel Packing Company, 395 U S 575, 614
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. By all the foregoing conduct , by coercively interro-
gating employees regarding their union membership and/or
sympathies , and by threatening employees with less
favorable working conditions , promising them pensions,
and granting them a wage increase , all to discourage
support of the Union and/or to withdraw support
therefrom , the Respondent has interfered with , restrained,
and coerced employees in the exercise of rights guaranteed
by Section 7 of the Act , and thereby has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]