Everett Van Kleeck & Co, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1950

88 N.L.R.B. 785 (N.L.R.B. 1950)

In the Matter of EVERETT VAN KL.EECIi & COMPANY, INC. and LODGE
#1562, INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No.2-CA-283.-Decided February 14, 1950
DECISION
AND
ORDER
On April 29, 1949, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
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 copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of these allega-
tions. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs. The
Respondent also requested oral argument; the request is hereby denied
because the record and briefs, in our opinion, adequately reflect the
issues and the positions of the parties.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby a.ffirlned. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions and modifications.,
1. The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act.
' The Intermediate Report contains certain erroneous statements of fact and inadvert-
ences, none of which affects the Trial Examiner ' s ultimate conclusions or our concurrence
in such conclusions . Accordingly , we make the following corrections : ( 1) The provision
of the Act relative to the definition of supervisors is Section 2 (11), instead of 2 (1) ; the
provision of the Act relative to the rights of bargaining representatives in an appropriate
unit is Section 9 (a), instead of 9 (b ), while the provision of the Act relative to determi-
nation of appropriate unit is Section 9 (b) ; (2) at all times material herein, there were 17
rather than 16 mechanics in the bargaining unit; and ( 3) the Stipulation For Certifica-
tion Upon Consent Election was executed on April 27, instead of on April 24, 1948.
88 NLRB No. 138.
785
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We rely, in this connection, upon the following conduct found by
the Trial Examiner: (a) President Van Kleeck's threats during his
speech to the employees on April 10, 1948, that if the Union was suc-
cessful in its efforts to organize the Respondent's employees, he would
curtail operations and retain only four men whom he would personally
select; 2 and (b) his promise, immediately after the speech that if
the Union was unsuccessful, he "probably would be able to do better"
by his employees in the future.
In addition, the record discloses, as the Trial Examiner found, that
earlier the same day, in the course of a conversation relative to union
activities, Van Kleeck informed employee Hubert Faurote, a union
adherent and father of stockroom employee Herbert Faurote, that he
expected to give the stockroom employees more money. This state-
ment, though clearly unlawful, was not found to be violative of the Act.
The General Counsel has taken exception to the failure so to find 3 In
these circumstances, we shall predicate our finding of it violation of
Section 8 (a) (1) on this promise as well.'
We therefore conclude that, by the foregoing threats of reprisal and
promises of benefits, the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act, in violation of Section 8 (a) (1) thereof.5
2. We agree with the Trial Examiner's finding that the Respondent
has refused to bargain with the Union within the meaning of Section
8 (a) (5) of the Act.
The crucial facts upon which we rely are the following :
s Thomas Brothers Wholesale Produce, 79 NLRB 982 ; Clark Phonograph Record Co.,
78 NLRB 34 , enfd. 176 F. 2d 341 ( C. A. 3). In its brief , the Respondent asserts that Van
Kleeck 's remarks relative to curtailing operations were reflections of a business decision
rather than threats of reprisal against the Union . The record affords no support for this
position . DeGroff, an executive of the Respondent , admitted that , although discussions
with Van Kleeck on the subject of curtailing operations had taken place during the months
of January , February , March , and April 1948 , no decision had been reached up to the date
of the hearing in January 1949. DeGroff testified further that , as of the time of the hearing,
no substantial change had occurred in the Respondent ' s operations.
s The General Counsel also takes exception to the failure of the Trial Examiner to make
provision for the violations of Section 8 (a) (1) found herein, in the remedy , the conclusions
of law, the recommended order, and the notice . The Trial Examiner ' s omissions in this
respect are corrected herein.
"In connection with our finding of a violation of Section 8 (a) (1), we place no reliance
on the remarks of Van Kleeck and DeGroff made to union representatives Murphy and.
Ellefson on April 9 , 1948, as to the consequences which would flow from union organization.
6 We find no merit in the Respondent ' s contention that a finding of a violation of Section
8 (a) (1) is not warranted because the employees were not in fact coerced. As both the
Board and the Courts have frequently held , the unlawful nature of such conduct is deter-
mined not by the actual coercive effect of the actions or statements upon the employees
concerned , but by the reasonable tendency of such conduct to interfere with the free exercise
of the rights guaranteed to employees under the Act. Chicopee Manufacturing Corporation
of Georgia, 85 NLRB 1439 , and cases cited therein.
EVERETT VAN KLEECK & COMPANY 787
On April 9, 1948, when it made a request for recognition and a con-
tract , as well as at all times material herein, the Union represented a
majority s of the Respondent 's employees in the appropriate unit 7
On the same date, the Respondent, in reply to the Union' s request,
declined to bargain and stated , as the Trial Examiner found, that it
"would demand an election."
On the following day, April 10, the Respondent made threats of
reprisal and promises of benefit to its employees which we have found
to be violative of Section 8 (a) (1) of the Act.
On April 14, the Union filed a petition for certification as bargain-
ing representative of the employees of the Respondent. On April 27,
the Union and the Respondent executed a Stipulation for Certification
upon Consent Election. Thereafter, pursuant to the Union's request
made on May 10, the Regional Director cancelled the election sched-
uled for May? 11. On May 12, the Union filed the charge in this
proceeding.
On May 16 employee Campbell obtained permission of the Respond-
ent to circulate among its employees a petition addressed to the Board,
protesting the cancellation of the election and requesting that an
election be held to determine whether or not "such place of employ-
ment shall become a union shop." All the Respondent's employees,
including the two foremen, signed the petition.8
The Respondent contends that it committed no unfair labor prac-
tices on April 9 or 10, and that it in good faith sought an election and
certification by the Board which was its "right." The Respondent
further contends that, even assuming the existence of unfair labor
practices, the Board is precluded from finding an unlawful refusal
to bargain because : (1) Thereafter the Respondent refrained from
unlawful conduct and entered into a consent election agreement from
Although the record discloses that the Union made no offer to prove a majority on
April 9, we believe that , in the circumstances involved herein, it was not obligated to do so.
The Respondent never requested such proof. Its preoccupation instead with antiunion
remarks would tend to demonstrate that it did not entertain bona fide doubt as to the
onion 's majority , or that it "made no [sincere ] effort to learn the facts and took the chance
of what they might be." N. L. R. B. v. Remington Rand, Inc., 94 F. 2d 862, 869 (C. A. 2) ;
N. L. R. B. v. Dahlstrom Metallic Door Co., 112 F. 2d 756 (C. A. 2).
, In agreement 'with the Trial Examiner , we find that all garage employees at the Re-
spondent 's place of business in Kingston , New York, including stock clerks but excluding
clerical and office employees , watchmen and guards , professional employees , and all super-
visors as defined in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act. The Respondent excepts to
the unit finding on the ground that it impliedly excludes two of its employees as supervisors.
The record shows that the two individuals in question, Smith and Lowe, exercise super-
visory functions as foremen of the day and night shifts, respectively . The Respondent's
contention is therefore without merit.
• 8 The Trial Examiner found that the Respondent did not initiate , sponsor, or condone
the circulation-of the petition and, accordingly , dismissed the allegation of the complaint
with respect thereto. No exceptions having been filed to this , we hereby affirm the Trial
Examiner ' s ruling.
882191-51-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the Union later withdrew; and (2) the petition, signed by its
employees in which an election was requested, negates the Trial Ex-
aminer's finding that the Respondent created an antiunion atmos-
phere by its allegedly coercive statements of April 10.
Like the Trial Examiner, we find no merit in the Respondent's ' con-
tentions. The Respondent's threats of reprisal and promises of bene-
fit which we have found to be violative of the Act, cannot be lightly
brushed aside. Coming as they did 1 day after the Respondent's
refusal of recognition and its demand for an election, they belie the
contention that, in requesting an election, the Respondent was acting
in good faith.. They reveal instead that, in seeking an election, the
Respondent was motivated by a desire to gain time within which to
undermine the Union and avoid its statutory duty to bargain .9 They
stamp the Respondent's willingness to enter into a consent election
agreement and the agreement itself as no ,more than a self-serving
gesture, indulged in by the Respondent at a time when it had already
created a coercive atmosphere and made a free choice of bargaining
representatives impossible.1' And they render the Respondent's ab-
stention from additional unfair labor practices merely an indication
of its awareness of the effectiveness of its hostile declarations of April
10. Further, as to the employees' petition, we cannot perceive how it
could undo the harmful effects of the Respondent's unlawful conduct
of April 10 or demonstrate that the employees would, in the event of
an election, exercise a choice of bargaining representatives free from
coercion. Moreover, we regard the employees' petition as irrelevant
to a consideration of the issue involved herein, i. e., the motivation of
the Respondent at the time of the refusal to bargain.
In addition; contrary to the Respondent's contention, we are not
precluded from going behind the consent election agreement. The
agreement is not, nor does it purport to be a settlement agreement; 11
nor does it constitute evidence of good faith where, as here, the
Respondent's entire previous conduct was tantamount to a rejection of
the collective bargaining principle. And finally, it is clear that the
Union was not precluded from withdrawing from the consent election
agreement and seeking relief in a complaint proceediiig when it per-
ceived the impact of the Respondent's unfair labor practices upon the
See Joy Silk Mills, Inc., 85 NLRB 1263 , Cf. Artcraft Hosiery Company , 78 NLRB 333.
10 Cf. Joy Silk Mills, Inc., supra; D. H. Holmes Company, Ltd., 81 NLRB 753; The Cuff-
man Lumber Company, Inc., 82 NLRB 296; John Deere Plow Company of St. Loui8,.82
NLRB 69.
" See D. H. Holmes Company, Ltd ., supra ; The Fairfield Engineering Company, 74 NLRB
827, enfd. 168 F. 2d 67 (C. A. 6) ; Locomotive Finished Material Company, 52 NLRB 922,
enfd. 142 F. 2d 802 ( C. A. 10 ). Cf. The Wallace Corporation v. N. L. R. B., 323 U. S. 248.
EVERETT VAN KLEECK,& COMPANY 789
employees concerned.12 We are not ready to require an election as a
matter of "right," as the Respondent asserts, where to do so would
permit an employer to benefit by his unlawful efforts to destroy the
union's majority.13
Accordingly, because the Respondent refused to bargain with the
Union and because the defenses and reasons offered by the Respondent
for such refusal are, under all the circumstances and upon a considera-
tion of the entire record, lacking in merit, we find that the Respondent
has demonstrated a firm rejection of the collective bargaining prin-
ciple and has violated the Act. More particularly, we find that on
April 9, 1948, and at all times thereafter, the Respondent refused to
bargain collectively with the Union as the exclusive representative of
its employees in the unit hereinabove found to be appropriate, and
thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, in violation,
of Section 8 (a) (5) and (1) of the Act.
THE REMEDY
The Respondent's unlawful conduct consisting of threats of reprisal
and promises of benefit, in our opinion, discloses a fixed purpose to
defeat self-organization and its objectives. Because of this conduct
and its underlying purpose, we are convinced that the unfair labor
practices found are persuasively related to other unfair labor practices
proscribed by the Act; that the danger of their, commission in the
future is to be anticipated from the Respondent's conduct in the past;
and that the preventive purposes of the Act will be thwarted unless
our order is coextensive with the threat. In order, therefore, to make
effective the interdependent guarantees of Section 7, and to prevent
'e See The Coltman Lumber Company, Inc., supra ; Franks Bros . Company, 44 NLRB 898,
enfd. 321 U. S. 702. -
18 The Respondent cited Chamberlin Corporation , 75 NLRB 1118 and Roanoke Public
Warehouse, 72 NLRB 1281, in support of its contention that an employer does not unlaw-
fully refuse to bargain when it insists on a formal certification under the Act. While it
is true that under the amended Act, certification has special advantages not attaching to
voluntary recognition , which advantages may impel an employer to seek a Board election,
it does not alter the well-established principle that an employer may not indulge in unfair
labor practices and prevent a free test of the employees ' desires. In this case,' as dis-
tinguished from the Chamberlin Corporation and Roanoke Public Warehouse cases, the
nature and timing of the Respondent 's unfair labor practices preclude a finding that it was
acting in good faith in demanding an election.
Contrary to our dissenting colleague , Monroe Cooperative is entirely consistent with our
conclusions herein. We there reaffirmed the principle that voluntary recognition of a rival
labor organization which has not been brought to fruition by a timely collective bargaining
agreement was no bar to an election . Although we spoke of "the special advantages of a
certification for which the use of the ballot box is not too high a price to pay," at no point
did we even remotely suggest that an employer who rejects voluntary recognition and
demands an election , is privileged thereafter to engage in unfair labor practices and make a
free election impossible , as did this Employer.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a recurrence of unfair labor practices, and thereby minimize industrial
strife which burdens and obstructs commerce, and thus effectuate the
policies of the Act, we shall, in addition to entering a bargaining order
against the Respondent, order the Respondent to cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of
the amended Act.
ORDER
. Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Everett Van
Kleeck & Company, Inc., and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Lodge #1562, Interna-
tional Association of Machinists, as the exclusive representative of
all garage employees at the Respondent's place of business in Kings-
ton, New York, including stock clerks, but excluding clerical and office
employees, watchmen and guards, professional employees, and all su-
pervisors as defined in the Act;
(b) In any other manner interfering with restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Lodge #1562, International
Association of Machinists, or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
. 2. Take the following affirmative action which the Board finds will
pervisors as defined in the Act;
. (a) Upon request, bargain collectively with Lodge #1562, Inter-
national Association of Machinists, as the exclusive representative of
all its employees in the above-described unit with respect to grievances,
labor disputes, rates of pay, hours of employment, and other conditions
of employment, arid, if an understanding is reached, embody such un-
derstanding in a signed agreement;
(b) Post at its plant at Kingston, New York, copies of the notice
attached hereto and marked Appendix A.14 Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
34 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words : "A DECISION AND ORDER ," the words : "A
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
EVERETT VAN KLEECK & COMPANY 791
after being duly signed by the Respondent 's representative , be posted
by the Respondent immediately upon receipt thereof and maintained
by it for sixty ( 60) consecutive days thereafter in conspicuous places,
i ncluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered , defaced or covered by any other material;
(c) Notify the Regional Director for the Second Region, in writing,
within ten ( 10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8 (a) (1) of the Act by conduct other
than that found to be violative in this Decision and Order , be, and it
hereby is , dismissed.
MEMBER MURDOCK , dissenting in part :
I disagree with the decision of the majority that the Respondent's
conduct in refusing to accord the Union statutory recognition as the
exclusive representative of its employees on and after April 9, 1948,
constituted an unfair labor practice , within the meaning of Section 8
(a) (5) of the Act.
The credible evidence shows that when on April 9, 1948, Union Rep-
resentatives Ellef son and Murphy approached Van Kleeck with their
bargaining request and claim of majority statusy Van Kleeck had been
unaware that the Union had put in an appearance at the plant. Fol-
lowing assurances by Office Manager De Groff , who was also present
at this meeting that the employees were interested in the Union, Van
Kleeck inquired if he had any "rights in the matter." The union
representatives replied that he could demand an election . Van Kleeck
thereupon took the position that he desired an election.
Five days later on April 14, the Union, not Van Kleeck, filed a
Petition for Certification of Representatives . On April 27 , the Union
and the Respondent entered into a Stipulation for Certification upon
Consent Election, and an election was scheduled by the Board for May
'Al. On May 10 , however, pursuant to the Union's request of that
day and without notice to either Van Kleeck or his employees, the
Regional Director ordered the election cancelled. On May 12, the
Union filed the charge in the instant case.
A few days later, employee Campbell asked Van Kleeck if he would
object to an employee petition being filed with the Board requesting an
election. According to Campbell , Van Kleeck answered "Go ahead
and get the thing "over." Shortly . thereafter , Campbell circulated a
petition among the employees addressed to the Board urging an im-
mediate election and indicating that the cancellation of the May 10
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election did not meet with the approval of the signatories. All the
f.mploy ees signed the. petition.
I am not convinced from the foregoing facts, or from the entire
record as a whole that the Respondent's election request was fraudu-
lently made and part of a scheme to frustrate collective bargaining by
its employees. The Union's bargaining demand was the first intima-
tion Van Kleeck had of the employees' interest in the Union and there-
fore, his questioning of its majority claim was thoroughly reasonable
and justified. Furthermore; he cooperated with the Union to expedite
a resolution of that doubt by agreeing to a consent election. Nor can
I overlook Van Kleeck's reaction to Campbell's proposal to petition
the Board for an election in assessing his attitude. It seems to me, on
this particular record, not excluding the antiunion conduct of the
Respondent's officials which occurred before the execution of the con-
sent election stipulation, that the Respondent's election request was a
good faith request for proof of the Union's majority status.
It is my opinion that the results reached by the majority are not
only unwarranted on this record but are irreconcilable with the
position taken by this same majority in a recent case, Monroe Co-oper-
ative Oil Company,'.,' involving an issue closely related to the problem
of this case.
The Board majority stated in the Monroe Co-operative Oil Company
case:
Employers and unions do not require Board certification as a
prerequisite to collective bargaining if recognition of a majority
representative suffices for their purposes. But if a certification
is deemed desirable because of its special advantages, the use of
the ballot box is not too high a price to pay [Emphasis supplied.]
I can see no justification for withholding the use of the ballot box
from the employees and the Employer in this case. The statement
quoted above should be impartially applied.
For these reasons, I would dismiss that portion of the complaint
which alleges an illegal refusal to bargain.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to a'Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
15 86 NLRB 95.
EVERETT VAN KLEECK & COMPANY 793
WE WILL NOT refuse to bargain collectively with LODGE #1562,
INTERNATIONAL ASSOCIATION OF MACHINISTS, as the exclusive rep-
resentative of all employees in the appropriate unit described
below.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organi-
zation, to form labor organizations, to join or assist LOCAL #1562,
INTERNATIONAL ASSOCIATION OF MACHINISTS or any other labor
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement, requiring mem-
bership in a labor organization as a condition of employment as
authorized in Section 8 (a) (3) of the National Labor Relations
Act.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to grievances,
labor disputes, rates of pay, wages, hours of employment, or other
conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement. The bargain-
ing unit is :
All garage employees at our place of business Kingston, New
York, including stock clerks, but excluding clerical and office
employees, watchmen and guards, professional employees, and all
supervisors as defined in the Act.
All our employees are free to become or remain members of this
union, or any other labor organization.
EVERETT VAN KLEECK & COMPANY, INC.
Employer.
By -------------------------------------------
Dated--------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Samuel M. Kaynard, Esq., for the General Counsel.
Adolph Bangser, Esq., of New York, N. Y., for the Respondent.
Mr. Thomas Elle[son, of Albany, N. Y., Mr. Joseph M. Murphy, of Kingston,
N. Y., and Mr. Carl S. Carlson, of New York, N. Y., for the International Asso-
ciation of Machinists.
STATEMENT OF THE CASE
Upon an amended charge filed September 1, 1948, by Lodge #1562, Interna-
tional Association of Machinists, herein called the Union, the General Counsel
of the National Labor Relations Board,' by the Regional Director for the Second
Region (New York, New York), issued a complaint dated October 7, 1948, against
Everett Van Kleeck & Company, Inc., Kingston, New York, herein called the
Respondent, alleging that the Respondent had engaged in and was engaged in
certain unfair labor practices affecting commerce within the meaning of Section
8 (a) (1) and (5) of the National Labor Relations Act, 49 Stat. 449, as amended,
and reenacted in the Labor Management Relations Act of 1947, 61 Stat. 136, des-
ignated herein as the Act. Copies of the amended charge the complaint and a
notice of hearing were>duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint as amended at the
hearing2 alleged in substance, that (1) on or about April 9 and 10, 1948, the
Respondent threatened to close its plant or curtail operations if the employees
became members of or continued membership in the Union, and persisted in their
collective bargaining efforts, and promised its employees that operations and con-
ditions of employment would remain the same or be improved if the employees
rejected the Union; (2) on or about June 2, 1948, the Respondent caused to be
circulated among its employees, and caused its employees to sign a petition for
the purpose of compelling an immediate election by the Board among its em-
ployees on the question of whether or not its employees desired the Union as
their collective bargaining representative or no union to represent them ; (3)
on or about April 9, 1948, and at all times thereafter, the Respondent refused
and continued to refuse to bargain collectively with the Union as the exclusive
bargaining representative of the Respondent's employees in a unit appropriate
for collective bargaining; and (4) that by the foregoing conduct, the Respondent
had engaged in and is engaging in unfair labor practices in violation of Section 8
(a) (1) and (5) of the Act.
In its answer duly filed the Respondent admitted that it was engaged in
interstate commerce but denied the commission of any unfair labor practices ;
and that if any of its employees designated or selected the Union as their
representative for the purposes of collective bargaining with Respondent, such
designation or selection was produced by trickery and fraud.
Pursuant to notice, a hearing was held in Kingston, New York, on December 20,
1948, and on January 4, 5, and 6, 1949, before the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel and the
1 The General Counsel and his representatives in this case are referred to herein as the
General Counsel, the National Labor Relations Board is referred to as the Board.
2 At the bearing herein the General Counsel moved to amend the complaint to include the
allegation that Respondent engaged in unfair labor practices, in violation of Section 8 (a)
(1) and (5) of the Act by causing to be circulated and causing the employees to sign a
petition , on or about June 2, 1948.
EVERETT VAN KLEECK & COMPANY 795
Respondent were represented by counsel , and the Union by an International
representative . Full opportunity to be heard , to examine and cross -examine
witnesses , and to introduce evidence was afforded all parties.
At the close of the hearing the General Counsel moved to conform the pleadings
to the proof as to minor defects such as spelling , names, dates , and the like, the
motion was granted without objection . Also at the close of the hearing counsel
for the Respondent moved to dismiss the complaint , and specifically and sep-
arately moved to dismiss paragraph Ila thereof , the latter being the amendment
to the complaint made at the hearing and which has been set forth supra in
footnote 2 of this Report . Ruling was reserved on both motions by the under-
signed. The motion to dismiss paragraph Ila of the complaint is hereby granted.
The motion to dismiss the complaint in toto is hereby denied . Opportunity to
argue orally before the undersigned was extended to all parties . Both the
General Counsel and counsel for the Respondent availed themselves of this
opportunity . All parties were granted an opportunity to file briefs and/or
proposed findings of fact and conclusions of law. Briefs have been received from
the General Counsel and the Respondent . They have been duly considered by the
undersigned.
I. THE BUSINESS OF THE RESPONDENT
Everett Van Kleeck & Company , Inc., is and has been a New York corporation,
with its principal office and place of business in Kingston , New York, where it is
engaged in the purchase of motor trucks , automotive and truck parts and acces-
sories , home freezers and refrigerators , gas, oil, and sundries and the general
repair and service of automotive vehicles . During the year 1347 , the Respondent,
in the course and conduct of its business operations , caused to be purchased,
transferred , and delivered to its place of business in Kingston , New York, mer-
chandise for resale , and the repair of automotive equipment , in excess of $100,000,
of which approximately 75 percent came from points outside the State of New
York. During this same period the Respondent's income from the conduct of
its business operations was in excess of $100,000 , a substantial portion of which
represents the sale of trucks and other merchandise , and from the repair and
servicing of trucks owned and operated by, companies and corporations engaged
in interstate commerce . The Respondent concedes and the undersigned finds
that it is engaged in interstate commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Lodge #1562, International Association of Machinists , is a labor organization
within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Respondent 's refusal to bargain with the Union
1. The appropriate unit and the Union's majority status therein
The complaint alleges that all garage employees of the Respondent employed
at its place of business in Kingston , New York, including stock clerks, and
excluding office, professional , and clerical employees , watchmen , guards, and
supervisors constitute a unit for the purpose of collective bargaining. In its
answer the Respondent alleged that "it has no knowledge as to" the appropriate-
ness of the unit. At the hearing herein the Respondent offered no evidence as
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the appropriateness of the unit; nor did it make any contention at the hearing
herein or in its brief that the unit alleged to be appropriate in the complaint
should be otherwise.
At all times material herein the Respondent had 20 employees in the unit
described above, 16 were mechanics and 3 were stock clerks. There is no
question but what the 16 mechanics are properly included within the alleged
appropriate unit, however the status of the 3 stock clerks requires some clarifi-
cation and discussion herein. The stock clerks in addition to their duties in the
stock room, which requires the handling of parts for repairing automotive
equipment, and the resale of same to customers of the Respondent, sell gasoline
and oil, and other similar commodities. In addition they work closely with the
mechanics in checking motors' chassis, and other parts of automotive equipment
in order to secure the proper parts needed for the repair of individual cars and
'trucks. Moreover they, like the mechanics are paid by the hour. The record
is clear that the stock clerks and the mechanics have a common interest in their
rates of pay, hours of work, and working conditions. Under the circumstances
described above, the undersigned is convinced and finds that the garage employees
and the stock clerks constitute a homogeneous and identifiable group perform-
ing similar functions, working under similar working conditions. Accordingly
the undersigned finds that :
All garage employees of the Respondent, employed at its place of business
in Kingston, New York, including stock clerks, and excluding ofTlce, profes-
sional, and clerical employees, watchmen, guards ; and all supervisors as
defined in Section 2 (1) of the Act, constituted and now constitute a unit for
the purpose of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and that said
unit insures to the employees of the Respondent the full benefit of their
right to self-organization, and collective bargaining and otherwise effectuates
the policy of the Act, as set forth in Section 9 (b) thereof.
2. Representation by the Union of a majority in the appropriate unit
On April 8, 1948, there were 20 employees in the above-found appropriate unit;
of these, 13 had signed application for membership cards in the Union, under the
circusmtances that will be shown herein below under the section of this Report
styled "Interference, restraint, and coercion, and the alleged refusal to bargain."
Suffice it to say, however, that 12 employees signed application for membership
cards on the night of March 26, 1948, and 1 on April 8, 1948. An examination of
the application cards signed by the employees shows that by so signing they
authorized the Union to act as their representative for collective bargaining with
the Respondent. Moreover of the 13 who signed the cards, all but 2 paid a $5
initiation fee. The Respondent offered no affirmative evidence at the hearing
herein challenging the authenticity of the signatures on the cards. It is true that
the Respondent alleged in its answer that the signatures on the cards were se-
cured through "fraud and trickery," but at the hearing herein it offered no
proof in support thereof. Hence the undersigned is convinced and finds that
this contention of the Respondent is without merit.
It has been held by the Board and the courts in a long line of decisions that the
majority status of a labor organization may be predicated on application cards.'
3 See Harris-Woodson Co ., Inc., 77 NLRB 819; Nubone Company, Inc., 62 NLRB 322,
155 F. 2d 523 ; Lancaster Garment Company , 78 NLRB 935 ; see Lebanon Steel Foundry
Company v . N. L. R. B., 130 F . 2d 404 (C. A. D. C.).
EVERETT VAN KLEECK & COMPANY 797
Having found above that the Union in fact represented 13 of the 20 Respondent's
employees in the appropriate unit found above, the undersigned accordingly is
convinced and finds that as of April 8, 1948, and at all times material herein the
Union represented a majority of the Respondent's employees in that unit.
B. Interference, restraint, and coercion and the alleged refusal to bargain'
Some time in the fall of 1947, the Union started an organizational drive for
members in and around Kingston, New York, among employees of various em-
, ployers in that vicinity. Among the classifications of employees over which it
claimed jurisdiction were garage mechanics. Joseph Murphy, local organizer
for the Union, and a resident of Kingston, New York, was placed in charge of
the campaign. Assigned to assist him in this effort was Thomas Ellefson, Grand
Lodge representative of the Union.
In furtherance of the campaign, Murphy circularized mail to various employees
in the area, and personally contacted many others. In his organizational efforts
he contacted several of the Respondent's employees and solicited their member-
ship in the Union, many of whom he either worked with in other plants in the
area during the war, or had previously known through other contacts. On March
26, 1948, Murphy met with 12 of the Respondent's employees at a local tavern.
During the course of the meeting that ensued he explained to them the purpose
and policies of the Union, and the benefits of collective and concerted activities.
In turn the employees discussed various grievances which they had with the
Respondent. As a result of this meeting all 12 of the employees present signed
applications for membership cards. All the cards were signed in Murphy's
presence, and retained by him. In addition some few of those present paid their
initiation fee of $5 to Murphy. Others agreed to pay later, and Hubert F.
Faurote, an employee of the Respondent, was designated by Dunn, vice presi-
dent of Lodge #1562, to collect the initiation fee from these employees. Those
present understood that the Respondent's employees were to be members of
Lodge #1562. On April 8, Frank Henry, an employee of the Respondent, signed
an application for membership card and gave it to Murphy. Hence on April
8, 1948, 13 of the Respondent's 20 employees in the above-found appropriate unit
had designated the Union to act as their exclusive representative to bargain
collectively with the Respondent.
On the morning of April 9, 1948, Murphy and Ellefson went to the Respondent's
place of business and met Edward V. De Groff, Jr., then office manager and a
director of the Respondent corporation. They introduced themselves and told
De Groff that they represented the Union ; that a majority of the Respondent's
employees had designated the Union as their exclusive representative for the
purpose of collective bargaining with the Respondent ; and that they were there
to "talk business" with the Respondent. De Groff said that he doubted if any
of the Respondent's employees had formed the Union. What transpired at this
meeting between the union representatives and De Groff is best told by the testi-
mony of De Groff himself, who on direct examination testified as follows:
Q. Now turn to the 9th of April 1948, the Friday when Messrs. Murphy and
Ellefson came to your place. Tell the Examiner just what they said and
what you said and then what happened?
* Ordinarily separate sections are set up in an Intermediate Report for interference,
restraint , and coercion , and a refusal to bargain. However, whereas here they are so
closely related as to sequence , and to each other the undersigned sees no point in attempting
to consider them independently.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I don't remember the opening words of the conversation except for the
fact there was something said, exactly what it was I don't remember, there
was something said about a contract, it seems to me they said they were there
about a contract because we had several contracts pending on spark plugs and
so forth and that is what I thought they were referring to at the time. They
said they were union men and they quickly corrected me on the subject and
they were there to see how we felt about a union, or words to that effect, and
I said I didn't particularly see any sense in my talking to them about the
subject because none of our men were union and therefore we weren't particu-
larly interested in talking to them. So they said, "You're wrong-" I don't
remember whether they said all of our men, but a number of our men had
signed up with the union. I didn't believe it and I told them so and I said,
"However, come on, we will go out in the shop and talk to Smitty, if that is
so Smitty will know about it." Mr. Van Kleeck wasn't there at the time.
We went out in the shop and I called Smitty over and told him that these
fellows represented a union and I asked what he knew about it. He said
basically the same thing I did, that we didn't have any union men so why
discuss the matter. Mr. Murphy and Mr. Ellefson insisted our men had
joined the union and said, "Why don't you ask the men and see what they have
to say about it." Mr. Smith turned to Mr. Hubert Faurote, that is the senior
Faurote, who was working on a job close by and said, "Herb, do you belong to
the union?" and herb said, "Yes," and lie may have said all the men do or
may not, I don't remember exactly what the wording was. He did say he
belonged to the union. Well that naturally sort of stunned me and probably
stumped Smitty too, and Everett being the president of the corporation,
myself at the time, employed by the corporation, I figured the best one to see
these gentlemen was Mr. Van Kleeck who I knew was up at the farm at the
time. I said, "Come on, let's hop in my car and talk it over with Everett."
We got in the car and went up on the hill and I called Everett over and told
him these men were union men. I don't remember who spoke first.
Ellefson and Murphy accepted De Groff's invitation and they proceeded in his
car to Van Kleeck's farm. Upon arrival De Groff introduced them to Van Kleeck,
and advised him that Ellefson and Murphy claimed to represent the employees of
the Respondent. Ellefson and Murphy then told Van Kleeck that the Union repre-
sented a majority of the Respondent's employees, and that they desired to discuss
and enter into a collective bargaining contract with the Respondent. Van Kleeck
told the union representatives that he was not interested because none of his
employees belonged to the Union. De Groff told Van Kleeck about his conversa-
tion with Foreman Smith and Hubert Faurote concerning the employees' member-
ship in the Union. In the conversation that ensued Van Kleeck told Ellefson and
Murphy in substance that he had dealt with a union before and that his relations
with that union were unsatisfactory; that he "did not.care or desire any more
experiences of that sort"; that he would never have a union in his shop ; and that
he would close down his business if he had to deal with the Union. He also told
Ellefson and Murphy in substance that in the event the Union was successful in its
organizational efforts among the Respondent's employees he would curtail the
Respondent's garage activities and limit its business to the sale and repair of
International trucks, which would require only a few mechanics. Ellefson and
Murphy pointed out to Van Kleeck that his statements constituted a threat, and
that in view of his attitude the Union had no other recourse except to resort to the
machinery of the Board for relief. Van Kleeck then asked Ellefson and Murphy
EVERETT VAN KLEECK & COMPANY 799
if he had any rights in the matter, and they informed him that he could demand
an election to determine whether or not a majority of the employees desired the
Union to represent them as their exclusive collective bargaining representative.
Van Kleeck then told the union representatives that he would demand an election.
Shortly after this conversation Ellefson, and Murphy returned to the Respondent's
place of business in Kingston with De Groff. According to the credible testimony
of Ellefson and Murphy, De Groff, in a conversation with them in the Respondent's
garage after their return from Van Kleeck's farm, stated in substance that both
he and Van Kleeck didn't need to operate their business because both were well
fixed financially, and had enough to keep them for the rest of their lives. De Groff
did not testify concerning this conversation. Accordingly the undersigned credits
the testimony of Ellefson and Murphy in this regard, and finds that De Groff
made the statements attributed to him by them.
On the next day, April 10, 1948, Van K]eeck went to Hubert Faurote, and said
to him, "I understand you are the spokesman and leader of the boys here."
Faurote denied that he was, and explained to Van Kleeck, that he had been
designated by one of the officials of Lodge # 1562, to collect fees, and other monies
for the Union. Van Kleeck then expressed his disapproval of the Union's organ-
izational efforts, and his antipathy towards the Union. He also stated to Faurote
in substance that the employees should have first consulted with him before they
joined the Union ; that he was disappointed and hurt by their action in this regard ;
and that by taking such action without consulting him, they had subjected him to
considerable ridicule and embarrassment from his friends in Kingston. Van
Kleeck, also said to Faurote, that if the employees had any grievances they could
be settled without the Union. He also told Faurote that he expected to raise the
pay of the stock room clerks. Faurote then suggested that Van Kleeck tell all the
employees about his attitude towards the Union, and the contemplated increase in
pay to the stock room clerks. Van Kleeck acquiesced in his suggestion and
arranged to meet with the employees at 5 p. in., when the day shift went off duty.
According to the credible testimony of Herbert Faurote, Hubert Faurote, and
Frank Homans, witnesses called by the General Counsel, Van Kleeck met with
the employees as scheduled at 5 p. in. on the afternoon of April 10, 1948. De
Groff was also present. Van Kleeck told the assembled employees in substance
the same thing he had previously said to Hubert Faurote in their conversation
earlier in the day. In particular he stressed the fact that if the Union was suc-
cessful in its organizational efforts, then the Respondent would be forced to
curtail its operations, and limit its business to the sale and service of Interna-
tional trucks, which according to Van Kleeck would require the services of about
four mechanics, and that he personally would select them. He also told the
employees that if any difficulties developed, and they refused to "play ball"
with him, then the Respondent would have to cut the work force, because the
Respondent was not doing so well financially. Van Kleeck also asked the em-
ployees to speak up and state their grievances with the Respondent. None of
them took advantage of his offer in this regard except Hubert Faurote, who
asked him what would happen if the Union did not come in. Van Kleeck replied
that things would go along about the same, and in all probability would get
better later on.
De Groff, also made a few remarks, and in particular pointed out that he had
discussed with officials of the International Harvester Company in Albany, New
York, concerning the advantages and disadvantages of a union, and had been
informed that the employees in their unionized shops made less money per
week than those in the nonunion shops, because of the Union's position on the
S00 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
40-hour week. In other words in the union shops, the employees worked 40
hours a week with no overtime, while in the nonunion shops there were no
restrictions in this regard and the employees take home pay as a result of this
policy was larger. Both Van Kleeck and De Groff told the employees that if
the Union came into the shop there would be no more overtime.
Van Kleeck's testimony as regards the events of April 10, is essentially the
same as that of the Faurotes and Homans. In regard to some of the contro-
versial issues he could not recall whether he made the statements attributed
to him by the witnesses called by the General Counsel, but he admitted that he
may have made such statements. In any event an affidavit given by Van
Kleeck to a field examiner for the Board,,shortly after the above events occurred
indicate that he did make the statements attributed to him. This affidavit was
placed in evidence by the Respondent. Following pertinent excerpts from
same are set forth herein below :
Friday, April 9, 1948, was the first time that I learned that my employees
had joined the union. Mr . De Groff came to my farm with two union
representatives. They said that my men had joined the union and they
wanted me to sign a union contract . I asked them didn ' t we have any rights
in the matter . They said that I had the right to demand an election so
11 said I would demand an election . I asked them what if we cut down on
our operation . They told me not to be silly , that they heard that wherever
they went. The fact is, however , that we have been thinking about giving
up our repair work and just selling International trucks and refrigerators.
If we do this it will be for business reasons that have nothing to do with the
:union.
On a Saturday afternoon , after I had met the union representatives, I held
a meeting of my employees in my shop . I held the meeting at the sugges-
tion of Hubert Faurote who came to me in the morning and acted as a spokes-
man for the men. He asked me to meet with the men and explain to them
how I felt about the union and things in general. I got the impression from
Faurote that the men had joined the union in the belief that the union
representatives had previously been in to see me.
The meeting was held at about 5 o'clock and it lasted only for about five
minutes. I told the men that I had known nothing about the union until
the union representatives had come to me, as described above. I said that
the men must have a grievance if they had joined the union because in my
experience a man joined a union only if he did have some grievance. I
.asked them what their complaints were, but nobody said anything. The
men just sat there like wooden Indians . I told the men that if there were
.a union shop I would still want the men to come and tell me their com-
plaints so that I could adjust things before they had to be taken up by an
outside representative . I also told the men that if there was going to be
any difficulty , if they wouldn't play ball with me, I would have to cut down
the work force because the business wasn' t doing well financially.
Ed De Groff was present at the meeting but he didn 't say anything to the
;men at all , or he said very little.
Hubert Faurote did ask me at the meeting what would happen if the
-union lost the election and I told him things would go on the same way as
it is.
EVERETT VAN KLEECK & COMPANY 801
Subsequent to their meeting with Van Kleeck on April 9, 1948, Carlson, an
International representative of the Union, filed a petition for certification with
the Regional Director of the Board's Second Region, New York, New York.
On April 24, 1948, Carlson met with Warren Van Kleeck, the Respondent's treas-
urer, and executed a Stipulation for Certification Upon Consent Election. The
stipulation was approved by the Regional Director for the Second Region, and
provided inter alia that the election was to be held May 11, 1948.
Subsequent to the signing of the consent election agreement on April 24
and May 11, 1948, the date set for the election, about six or seven members of
the Union held a meeting with Murphy, and at that time they discussed the
situation in the Respondent's garage, and the prospects of the Union in the
coming election. It was the consensus of opinion of those present at the meeting
that due to the antiunion atmosphere that prevailed in the shop it would be to
the advantage of the Union to withdraw from the consent election agreement, and
file an unfair labor practice charge against the Respondent. Murphy communi-
cated the desires of the Respondent's employees who were members of the Union
to Carlson. The latter then got in touch with the Regional Office and on be-
half of the Union withdrew from the consent election agreement, and filed an un-
fair labor practice charge against the Respondent on May 12, 1948.
Unfortunately due to some administrative error the Respondent was not noti-
fied by the Regional Office of the cancellation of the election. As a result the
Respondent's employees who had assembled to vote in the election at the sched-
uled time were kept waiting for a short time at the polling place. When the
Board agent who was to conduct the election did not appear De Groff suggested
that Herbert Faurote call Murphy and find out what had happened. Faurote
did so and was notified by Murphy that the election had been canceled.
A few days after the election was canceled, Carroll W. Campbell, an em-
ployee of the Respondent, asked Van Kleeck if he would approve the circulation
of a petition among the employees in the shop addressed to the.Board, and
requesting that it conduct an election among the Respondent's employees to
determine whether or not they desired the Union to represent them as their
exclusive bargaining agent. Van Kleeck gave Campbell permission to do so
and stated at the time that he too was anxious for such an election. Shortly
thereafter Campbell had an attorney draft the following petition :
LABOR RELATIONS BOARD,
Washington, D. C.
We, the undersigned, being all the employees of Everett Van Kleeck,
Inc., of East Chester Street Extension, Kingston, New York, do hereby
request that an election be held to determine whether such place of em-
ployment shall become a union shop.
An election was scheduled for such purpose for May 11, 1948, at the
place of employment. Although all the employees were present at the time
and place appointed for the holding of said election, both the representa-
tive of the Union and the representative of the Labor Relations Board failed
to appear and the undersigned employees were afterwards advised that such
election had been postponed. This postponement was without the consent
of the employees and they now desire that an election be held without undue
delay.
Dated at Kingston, New York, June 2, 1948.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 2, 1948, Campbell circulated the petition among the employees in the
shop during working hours . Eighteen of the employees signed it , including
Earl Smith and John Lowe, both supervisory employees. .
There is no substantial evidence in the record that the Respondent initiated
or sponsored the circulation of the petition, other than to acquiesce in Campbell's
suggestion.
According to the undenied and uncontradicted testimony of Campbell, the
circulation of the petition came about as follows :
By Mr. KAYNARD :
Q. You can tell the Examiner in your own words what happened.
A. We was called into the front part of the garage for an election on
May 11th-
Q. May I interrupt and ask you who "we" is?
A. The employees of Mr. Van Kleeck , working in the shop. We all quit
work around quarter past five and went in and while we went in there
we waited for Mr. Murphy and a man from the Labor Relations Board to
show up. Nobody showed up. We waited and finally somebody suggested
they call Mr. Murphy and ask what happened . Mr. Murphy talked with
Mr. Herbert Faurote over the telephone and he turned around and told
us that Mr. Murphy said for us to sit there and wait, and we sat there
and waited a few minutes and that the election had been called off. Mr.
Murphy told that to Mr. Faurote and Mr. Faurote told us. Then I got kind
of disgusted with the whole thing and I went to visit my brother-in-law
that night and in conversation with him about this meeting and he said
that a citizen of the United States has as much right to petition the Labor
Relations Board, or any employee, as any union. I asked if he would draw
up a paper for my union and he said he would but he says, "You better not
get involved with Mr. Van Kleeck on that, maybe he won't like it." The
following Sunday morning I was working on my car in the garage and I
asked Mr. Van Kleeck about it and he said-
Mr, BANGSTER. What did you tell him?
Trial Examiner SHAW. Let him finish.
Mr, KAYNARD . The witness is my witness.
A. I asked Mr. Van Kleeck if it was o. k. with him to go ahead and have
a petition drawn up to hold the election . He said, "Go ahead and get the
thing over," that it would be all right with him. But I had my brother-in-
law draw up this paper and I took it in and had the fellows sign. Mr. Van
Kleeck, to my knowledge, never saw this paper . I took this paper back to
my brother -in-law and he put it in one of his own envelopes and he didn't
know the address of the NLRB in New York and I got the address from
Mr. Van Kleeck' s bookkeeper and I called up my brother -in-law and he
mailed the letter.
Trial Examiner SHAW. Could I see that just a moment please?
(Respondent's Exhibit No. 2 handed to Trial Examiner)
By Mr. KAYNARD :
Q. Mr. Campbell , you stated that on Sunday morning you spoke to Mr.
Van Kleeck . I know it has been a long time and I can't remember-
or rather, expect you to remember exactly the words which were used by
both of you gentlemen , but I would like to ask you if you can remember
generally what the exchange was, what the conversation was between you
and Mr. Van Kleeck on that day?
A. 1 don ' t remember in full.
EVERETT VAN KLEECK & COMPANY 803
Q. Well, as far as you can remember?
A. The only thing I remember clear is that I asked Mr. Van Kleeck if it
would be all right if I got up a petition and circulated it around through the
shop and ask for signatures, if it was all right with him; lie said, "Yes."
Q. Did you tell him what the petition was for?
A. Yes, an election.
Q. And then thereafter ,you had the petition drawn up?
A. Yes.
Q. And then you asked various employees, including Mr. Smith, to sign it?
A. That's right.
Campbell was one of the first to join the Union, having done so on the night,
of March 26, 1948, the date of the first meeting of the Respondent' s employees
with Murphy, the union organizer.
Concluding findings
Van Kleeck's remarks to Ellefson and Murphy on April 9, 1948, at the time,
they discussed with him recognition of the Union as the exclusive bargaining
representative of the Respondent's employees were clearly violative of Section 8
(a) (1) of the Act. The Board and the courts in a long line of decisions have
held that such threats as expressed by Van Kleeck, that is to curtail the opera-
tions of the Respondent's business, or to close down its business in the event the-
employees chose the Union as their bargaining representative, constitute flagrant:
and inexcusable violations of the Act.' It matters not that his remarks were-
directed to organizers for the Union, and not to individual employees of the Re-
spondent. This question likewise has been before the Board and the courts on
numerous occasions, and the Board has held in a similar case where this issue,
was raised, that, "for statements made to a union organizer and officer are very
likely to be relayed to the employees whom he represents."'
Again Van Kleeck's remarks are not protected by Section 8 (c) of the Act,
for the reason that on their face they clearly go beyond the expression of an
opinion, and in their most liberal interpretation constitute a threat of reprisal
against the Respondent's employees if they exercised their statutory rights and
engaged in concerted activities, as guaranteed them in Section 7 of the Act. The
undersigned is convinced and finds that the Respondent by the remarks of Van
Kleeck set forth above interfered with, restrained, and coerced its employees in.
violation of Section 8 (a) (1) of the Act.
Likewise, Van Kleeck's remarks made at the meeting with the Respondent's
employees, as discussed above, on April 10, 1948, were violative of Section 8 (a)
(1) of the Act. Here, he not only threatened reprisal against the employees if,
they chose the Union as their exclusive collective bargaining agent, but went
further and promised them benefits if they would abandon their statutory rights
in this regard. Moreover, Van Kleeck's remarks at the meeting with the Re-
spondent's employees on April 10, 1948, are so clearly beyond the protection of
Section 8 (c) of the Act that the undersigned is convinced that they require no.
discussion herein.
6 See N. L. R. B. v. Hoppes Mfg. Co., 74 NLRB 853, enforced 170 F. 2d 962 (C. A. 6)
Peoples Motor Express v. N. L. R. B., 165 F. 2d 903 (C. A. 4) enforcing 74 NLRB 1597
Atlas Underwear Company v. N. L. R. B., 116 F. 2d 1020 (C. A. 6).
6 See Arton Studios, 74 NLRB 1163, 168 F. 2d 521 (C. A. 3) ; Piedmont Wagon & Mfg,
Company, 79 NLRB 967.
882191-51-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above, the complaint alleges and the answer denies that the Re-
spondent refused to bargain collectively with the Union on April 9, 1948, and
has at all times since refused to do so. The General Counsel contends in sub-
stance that the Respondent's refusal to recognize the Union as the bargaining
representative of its employees at the time it was requested to do so in the course
of the conversation between Van Kleeck, Ellefson, and Murphy on April 9, 1948,
constitute a violation of Section 8 (a) (5) o fthe Act; and that under the cir-
cumstances as set forth above, particularly Van Kleeck's remarks as to the Re-
spondent's antipathy towards the Union, and his threats of reprisal made at the
time, as well as those uttered by him on April 10 to the employees, nullified the
effect of the Respondent's demands for an election to determine the status of
the Union.
The undersigned has also found above that the Union represented a majority
of the employees in the unit found to be appropriate on April 9, 1948. He has
also found above that the Union requested the Respondent to recognize it as
the exclusive collective bargaining agent of its employees in said unit; and that
Van Kleeck speaking for the Respondent refused to do so and demanded an
election to determine the issue, coupling his demand with threats of reprisal
against the Union, and at the same time expressed the Respondent's antipathy
toward the Union. True the Union did not present evidence of its majority to
Van Kleeck on April 9, but in the considered opinion of the undersigned this
was unnecessary in view of: (1) De Groff's conversation with Hubert Faurote
prior to the conversation with Van Kleeck; and (2) the remarks of Van Kleeck
to Ellefson and Murphy after they had requested that the Respondent recognize
the Union as the exclusive collective bargaining agent for the Respondent's
employees which the undersigned has found above to be violations of Section 8
(a) (1) of the Act. De Groff was on notice that the Union represented a
majority of the employees in the appropriate unit having been so informed by
Hubert Faurote. Moreover he communicated this information to Van Kleeck at
the beginning of the conversation between the parties on April 9, 1948. Again, the
Respondent made no demand to the Union for evidence of its majority status.
Again, Van Kleeck's intemperate remarks in regard to the Union, coupled with
his threats of reprisal at the same time would make such an offer by the Union
under the circumstances an idle and futile gesture.
The Respondent makes much of the fact that it had a right to demand an
election as proof of majority, and that by informing Ellefson and Murphy, the
union representatives, that it would demand an election to resolve the issue of
the Union's claimed majority in the unit, absolved the Respondent from conduct
violative of Section 8 (a) (5) of the Act. Under a proper set of facts there is
considerable authority for the Respondent's contention in this regard, but in
order to raise such a defense an employer must allege and prove that its demand
for an election to determine the status of the claimed bargaining representative,
is based on an honest doubt as to the Union's majority status, and made in an
atmosphere of good faith. The Board has held in a number of cases that "an
employer may in good faith insist on a Board election as a proof of the Union's
majority 'but it' unlawfully refuses to bargain if the insistence on such an elec
tion is motivated, not by any bona fide doubt as to the Union's majority, but rather
by a rejection of the collective bargaining principle or by a desire to gain time
within which to undermine the Union."' Herein lies the vice of the Respondent's
contention. The record is clear and the undersigned so finds that the Respond-
7 Art craft Hosiery Company, 78 NLRB 333 ; Cuffman Lumber Company, Inc ., 82 NLRB 296.
EVERETT VAN KLEECK & COMPANY 805
:,nt's demand for an election on April 9, 1948, when considered in the light of Van
Kleeck's threat of reprisal against the Respondent's employees in the event that
they chose the Union as their bargaining representative (which the undersigned
has found above were violative of Section 8 (a) (1) of the Act), was not a bona
fide request, but made solely for the purpose of delay so that the Respondent
could gain time to undermine the Union, and thus defeat the rights of its em-
ployees as guaranteed them by Section 7 of the Act. This finding is buttressed
by Van Kleeck's remarks to all the Respondent's employees on April 10, 1948,
which the undersigned has found above to have been likewise violative of Section
8 (a) (1) of the Act.
In view of the above findings and the record as a whole the undersigned is
convinced and finds that by the above-described acts the Respondent violated
Section 8 (a) (5) of the Act, and in so doing likewise violated Section 8 (a) (1)
of the Act.
As indicated above the parties entered into a Stipulation for Certification Upon
Consent Election on April 24, 1948. Subsequently the Union withdrew from its
stipulation prior to the scheduled date of the election, May 11, 1948, and as
a result of this action by the Union the election was canceled by the Regional
Director of the Second Region ; and that through some inadvertence the Re-
spondent and its employees were not notified of the Board's action until some-
time after the hour set for the election on May 11, by Murphy, the Union's local
representative. The record is clear that the Union's request for cancellation of
the election was motivated by the fact that it felt that it could not win the
election in view of the antiunion atmosphere that prevailed in the Respondent's
garage as a result of the antipathy of Van Kleeck and De Groff towards the
Union, and the threats of reprisal made to the employees by them on April 9
and 10, as set forth above.
Experience has shown that such an atmosphere is not dispelled within the short
space of time that elapsed between the Respondent's unfair labor practices and
the date set for the election. It is common knowledge, and the Board and the
courts have held in cases too numerous to discuss herein, that employees are
naturally sensitive to threats made by recalcitrant employers of economic reprisal
for exercising the rights guaranteed them under Section 7 of the Act. Moreover
in such an atmosphere as found herein it is axiomatic that where employees are
threatened with the loss of their jobs in the event they exercise their statutory
rights to engage in concerted activities, there can be no free election that would
express the untrammeled will of the employees as contemplated by the Act.
Again, it must be remembered that at the time the events herein occurred, the
Act as amended was in effect. Under its provisions if the Union lost the election
then the employees and the Union would be precluded for a year before they could
again petition the Board for an election.
Under the circumstances found hereinabove the Union was faced with the
dilemma of going ahead with the election, or exercising its rights under Section 10
of the Act and file unfair labor practices against the Respondent. Unquestionably
it had the right to do either. It chose to proceed as outlined above. The mere
fact that the Union and the Respondent had entered into a consent election agree-
ment following the commission of unfair labor practices by the Respondent does
not vitiate and condone such practices. The Board and the courts in numerous
cases involving this same issue have held to the contrary.'
See Franks Brothers Company V. N. L. R. B., 321 U. S. 702; N. L. R. B. v. Harris-
Woodson Co., Inc., 162 F. 2d 97 (C. A. 4).
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While it may be argued that the Union should have gone through with its agree-
ment, and took its chances in the election, and that its failure to do so indicated.
that it did not have a majority of the employees in the unit, and hence was afraid
to take its chances by participating therein, through fear of being rejected by the
employees as their exclusive bargaining representative with the Respondent.
Under a proper set of facts there might be some merit to such an argument, but
where as here, any loss of majority by the Union is traceable to the Respondent's
unfair labor practices, such argument must fail. Such a situation existed in the
Harris-Woodson case, supra. In that case, the Fourth Court of Appeals, speaking
through Parker, P. J., held that :
The Company makes much of the fact that a representative of the union,
agreed with the company's president in the spring of 1945 to have an election
held by the Board but, after petitioning for such election, withdrew the-
petition and filed the complaint on which these proceedings were based..
While the repudiation of the agreement by the representative of the union.
cannot be approved, his agreement was in no way binding on the Board ; and
it is the action of the Board, not that of the union representative, which is:
before us for review.
The undersigned is not unmindful of the fact that there is no substantial
evidence that the Respondent committed further unfair labor practices after-
April 9 and 10 , 1948, and the execution of the consent election agreement on
April 24. In the considered opinion of the undersigned this fact is of no conse-
quence in view of his findings hereinabove that the Respondent had violated
Section 8 ( a) (1) and (5) of the Act prior to the date the consent election was
signed.
As indicated above a petition was circulated among the Respondent 's employees:
on June 2, 1948 , by one Carroll Campbell . An examination of the credible testi-
mony in the record, particularly that of Campbell himself, which stands undenied
in the record , indicates that this was a voluntary action on his part, and that
the Respondent neither initiated , sponsored , nor condoned the circulation of
the petition . As a matter of fact the undenied and uncontradicted testimony in
the record clearly shows that the only connection that the Respondent had in•
its circulation was Van Kleeck's consent to its circulation . All other details
thereof were handled by Campbell , a nonsupervisory employee of the Respondent.
and one of the first to join the Union . The mere fact that two of the Respond-
ent's supervisory employees signed the petition is not controlling . ' Moreover,
the petition was not designed to either eliminate the Union or to create a rival
organization , as is so often the case in similar situations . In such a state of"
the record the undersigned is convinced and finds that the Respondent 's conduct
in this regard was not violative of Section 8 (a) (1) of the Act. Accordingly,.
he will recommend the dismissal of this allegation of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
It is found that the activities of the Respondent set forth in Section III,,
above, occurring in connection with the operations of the Respondent described'
in Section I, above, have a close, intimate, and substantial relation to trade,.
traffic, and commerce among the several States and tend to lead to labor disputes=
burdening and obstructing commerce and the free flow of commerce.
9 See N: L. R. B. V. Brown Company, 160 F. 2d 449 (C. A. 1) decided March 5, 1947
65 NLRB 208; N. L. R. B. v. West Ohio Gas Company, 172 F. 2d 685 (C. A. 6).
EVERETT VAN KLEECK & COMPANY 807
V. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor prac-
tices it will be recommended that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act. It
having been found that the Respondent has refused to bargain collectively with
the Union as the exclusive representative of its employees in an appropriate unit,
it will be recommended that the Respondent upon request bargain collectively
with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case the undersigned makes the following:
CONCLUSIONS OF LAW
1. Lodge #1562, International Association of Machinists is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. All garage employees of the Respondent , employed at its place of business
in Kingston , New York, including stock clerks , and excluding office, professional,
and clerical employees , watchmen , guards, and all supervisors as defined in Sec-
tion 2 ( 11) of the Act , constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 ( b) of the Act.
3. Lodge #1562 , International Association of Machinists , was on April 9,
1948, and at all times thereafter has been, the exclusive representative of all
the employees in the aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 ( a) of the Act.
4. By refusing on April 9 , 1948, and at all times thereafter , to bargain collec-
tively with Lodge #1562 , International Association of Machinists as the ex-
clusive representative of all its employees in the aforesaid appropriate unit, the
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
5. By said acts , the Respondent has interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
7. The Respondent did not on or about June 2, 1948 , cause to be circulated
among its employees , and cause its employees to sign a petition for the purpose
of compelling an immediate election by the Board among its employees on
the question of whether or not its employees desired the Union as their collective
bargaining representative or no union to represent them.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the Respondent,
Everett Van Kleeck & Company , Inc., Kingston , New York, and its officers,
agents, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain with Lodge #1562, International Association of
Machinists , as the exclusive representative of all garage employees of the
Respondent , employed at its place of business in Kingston, New York, including
stock clerks , and excluding office, professional , and clerical employees , watchmen,
guards, and all supervisors as defined in Section 2 (11) of the Act;
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Engaging in any other acts or in any manner interfering with the efforts
of Lodge #1562, International Association of Machinists, to negotiate for or
represent the employees in the aforesaid unit as exclusive bargaining agent..
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Lodge #1562, International Asso-
ciation of Machinists, as the exclusive bargaining representative of all the em-
ployees in the bargaining unit described hereinabove, with respect to wages, rates
of pay, hours of employment, and if an understanding is reached embody such
understanding in a signed agreement;
(b) Post in conspicuous places at its plant at Kingston, New York, copies of
the notice attached hereto, marked Appendix A. Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after being duly
signed by the Respondent's representative, be posted by the Respondent imme-
diately upon receipt thereof and maintained by it for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered
by any other material ; and
(c) Notify the Regional Director for the Second Region in writing within
twenty (20) days from the receipt of this Intermediate Report and Recommended
Order what steps the Respondent has taken to comply herewith.
It is also recommended that the allegation in the complaint that the Respond-
ent caused to be circulated among its employees, and caused its employees to
sign a petition for the purpose of compelling an immediate election by the
Board among its employees on the question of whether or not its employees
desired the Union as their collective bargaining representative or no union to
represent them, be dismissed.
It is further recommended that, unless on or before twenty (20) days from
the receipt of this Intermediate Report and Recommended Order the Respondent
notifies said Regional Director in writing that it will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring
the Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file
with the Board, Washington 25, D. C., an original and six copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and six copies of a brief
in support thereof; and any party may, within the same period, file an original
and six copies of a brief in support of the Intermediate Report. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Proof of
service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within twenty (20) days after
the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
EVERETT VAN KLEECK & COMPANY 809
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 29th day of April 1949.
JAMES A. SHAW,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT engage in any acts or in any manner interfering with the
efforts of LODGE #1562, INTERNATIONAL ASSOCIATION OF MACHINISTS to ne-
gotiate for or represent the employees in the bargaining unit described below.
WE WILL BARGAIN collectively upon request with the above- named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment, or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All garage employees of the Respondent, employed at its place of
business in Kingston, New York, including stock clerks, and excluding
office, professional, and clerical employees, watchmen, guards, and all
supervisors as defined in Section 2 (11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
EVERETT. VAN KLEECK & COMPANY, INC.,
Employer.
Dated-------------------- By ----------------------------------------
- (Representative ) (Title)
This notice must remain posted for 60 days from the date hereof and must
not be altered, defaced, or covered by any other material.