Fontana Bros.

National Labor Relations Board - Board Decisions

Jan 26, 1968

169 N.L.R.B. 368 (N.L.R.B. 1968)

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leonard Fontana, Frank Fontana, Marino Fontana,
Nicholas Fontana, Anthony Fontana , and Albert
Fontana, co-partners , d/b/a Fontana Bros. and
Luggage Workers' Union , Local 60, I.L.G.U. &
N.W.U., AFL-CIO. Case 29-CA-800
January 26, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On August 2, 1967, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a sup-
porting brief. The Respondents filed a brief in sup-
port of the Trial Examiner's Decision, and also
cross-exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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, briefs,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only as far as consistent
herewith.
As the Trial Examiner found, when the Respond-
ent learned on Tuesday, August 2, 1966, that the
Union had filed a representation petition with the
Board (Case 29-RC-549), they proceeded not only
to interrogate their employees as to whether they
had signed union authorization cards, but also to
ask them why they had done so and to threaten that
the factory would be closed if the employees signed
for the Union. I As the Trial Examiner further
found, the Union represented a majority of the em-
ployees in an appropriate unit when, almost simul-
taneously with the filing of its representation peti-
tion, it requested a conference for purposes of
negotiating a contract. The Respondents refused to
grant the request. The Trial Examiner also cor-
rectly found that the August 30 consent election,
based upon the representation petition and which
resulted in a tie vote, has been set aside on the
In addition to the threats which the Trial Examiner specifically found
to be coercive, we also find violative of Section 8(a)(1) Leonard Fontana's
conduct in exhibiting to employee Diaz a letter inviting Respondents to
move its plant to the State of Florida. Leonard Fontana admitted that he
considered Diaz to be the spokesman for the employees at that time and
it is fair to infer that he expected the contents of the letter to be passed on
Union's objections of improper interference by the
Respondents. We agree with these findings of fact.
On these facts, the Trial Examiner concluded
that the threats constituted a violation of Section
8(a)(1) of the Act. We agree with this conclusion.
The Trial Examiner further concluded, however,
that the interrogation was lawful because, after the
threats, the employees were told that they were not
being threatened with reprisal; the Respondents'
refusal to grant the Union's request for recognition
was in good faith, apparently because of the
Union's conduct in proceeding to an election; and
the Section 8(a)(1) violation was isolated and did
not warrant a formal cease-and-desist order, but did
warrant dismissal of the complaint. It is with these
conclusions that we disagree.
The Trial Examiner's basic error stems from his
misconception of present Board policy. Thus in
Blue Flash, cited by the Trial Examiner,2
interrogation was found lawful only because, unlike
here, the employer (1) had a legitimate purpose in
ascertaining the union's majority, and commu-
nicated it to his employees and assured them
against reprisal before interrogating them; (2)
limited his interrogation to whether or not they
wanted the union to represent them; and (3) en-
gaged in the interrogation in a total context other-
wise free from union hostility. The Supplemental
Decision in Struksnes Construction Co., Inc., 165
NLRB 1062, expressly revised the Blue Flash
criteria and held that an .employer would be per-
mitted to ask his employees whether or not they
wished to be represented by a certain labor or-
ganization, only under five enumerated safeguards.
Here, contrary to the criteria set forth in that case,
the interrogation occurred while a petition for a
Board election was pending; the Respondents did
not adequately communicate to the employees
either that the only purpose of the interrogation was
to determine the truth of the Union's claimed
majority or that there would be no reprisal; and the
Respondents also engaged in threats which created
a coercive atmosphere. Moreover, the questioning
was not done by secret ballot. Furthermore,
Respondents' poll was taken with knowledge of the
pendency of the election petition and did not serve
any legitimate purpose, and, in addition, employees
were questioned under conditions suggesting that
the interrogation was but a step in Respondents'
campaign to dissipate employee support of the
Union. Thus, the interrogation was extensive, in-
volved inquiries as to why employees wanted the
Union, and occurred after the Respondents
threatened to close the factory because of the
by Diaz to other unit employees. In the context of Respondents' other
contemporaneous unfair labor practices, it is also reasonable to infer, and
we find, that Leonard Fontana's aforesaid action was designed to impress
upon employees that Respondents might move its plant to Florida if it was
unionized, and, as such constituted an implied threat of reprisal,
- Blue Flash Express, Inc , 109 NLRB 591.
169 NLRB No. 56
FONTANA BROS. 369
Union in violation of 8(a)(1) as the Trial Examiner
found.
Accordingly, we find that the Respondents vio-
lated Section 8(a)(1) by the threats and the interro-
gations3 and that, by virtue of such conduct,
Respondents' denial of recognition exhibited a re-
jection of the principles of collective bargaining and
an effort to gain time in which to dissipate the
Union's status as majority representative. Ac-
cordingly, we find that Respondents violated Sec-
tion 8(a)(5) and (1) by refusing to grant the Union's
recognition and bargaining request.4 Moreover, we
find that our affirmative order that the Respondents
bargain collectively with the Union on request is an
appropriate remedy for their violations of Section
8(a)(1), apart from their violation of Section
8(a)(a)(5).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respond-
ents, Leonard Fontana, Frank Fontana , Marino
Fontana, Nicholas Fontana , Anthony Fontana, and
Albert Fontana , co-partners d/b/a Fontana Bros.,
Brooklyn , New York, their agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concern-
ing their union membership or activities , in order to
induce them to reject Luggage Workers' Union,
Local 60, I.L.G.U. & N.W.U., AFL-CIO, as their
collective-bargaining representative, threatening
them with the closing of their factory at Brooklyn,
New York, to discourage their union membership
or activities ; or in any other manner interfering
with , restraining , or coercing employees in the exer-
cise of the right to self-organization , to form labor
organizations , to join or assist Luggage Workers'
Union , Local 60, I.L.G.U. & N.W.U., AFL-CIO,
or any other labor organization, to bargain collec-
tively through representatives of their own choos-
ing, and to engage in concerted activities for the
purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, or to refrain from any or all
such activities , except to the extent that such right
may be affected by an agreement requiring member-
ship in a labor organization as a condition of em-
ployment , as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
(b) Refusing to bargain collectively concerning
rates of pay, wages, hours of employment , or other
terms and conditions of employment with Luggage
Workers' Union , Local 60, I.L.G.U. & N.W.U.,
AFL-CIO, as the exclusive representative of em-
ployees in the following appropriate unit:
All production and maintenance employees,
and shipping and receiving employees, em-
ployed at Respondents ' factory at Brooklyn,
New York, excluding office clerical em-
ployees, temporary employees , guards,
watchmen , professional employees , and super-
visors as defined in the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request , bargain collectively with Lug-
gage Workers' Union , Local 60, I.L.G.U. &
N.W.U., AFL-CIO, as the exclusive bargaining
representative of its employees in the aforemen-
tioned appropriate unit at its factory at Brooklyn,
New York , and if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its factory at Brooklyn , New York,
copies of the attached notice marked "Appendix. 115
Copies of said notice , on forms provided by the Re-
gional Director for Region 29, after being duly
signed by Respondents ' representative , shall be
posted by the Respondents immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by Respondents to insure that said notices are not
altered , defaced , or covered by any other material.
(c) Notify the Regional Director for Region 29,
in writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.
3 See Cohen Bros Fruit Company, 166 NLRB 88
4 See Joy Silk Mills, Inc., 85 NLRB 1263; see also Bernel Foam
Products Co., Inc., 146 NLRB 1277.
5 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employeesthat:
WE WILL NOT interrogate you as to union
membership or activities in order to induce you
to reject Luggage Workers' Union Local 60,
I.L.G.U. & N.W.U., AFL-CIO, as your col-
lective-bargaining representative, nor will we
threaten you with the closing of our factory at
Brooklyn , New York , to discourage your union
membership or activity, or in any other manner
interfere with , restrain , or coerce you in the ex-
ercise of your right to self-organization , to join
or assist the above -named or any other union,
to bargain through representatives of your own
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice , and to engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection , or to refrain
from any and all such activities , except to the
extent permitted by Section 8(a)(3) of the Act.
WE WILL NOT refuse to bargain collectively
with Luggage Workers' Union , Local 60,
I.L.G.U. & N.W.U., AFL-CIO, as the exclu-
sive representative of all the employees in the.
bargaining unit described below.
WE WILL bargain collectively , upon request,
with Luggage Workers ' Union , Local 60,
I.L.G.U. & N.W.U., AFL-CIO, as the exclu-
sive representative of all the employees in the
bargaining unit described below with respect to
rates of pay , wages , hours of employment, or
other terms and conditions of employment,
and, if an understanding is reached , embody
such an understanding in a signed agreement.
The appropriate bargaining unit is:
All production and maintenance em-
ployees , and shipping and receiving em-
ployees , employed at our factory at
Brooklyn , New York , excluding office
clerical employees , temporary employees,
guards , watchmen , professional em-
ployees , and supervisors as defined in the
Act.
LEONARD FONTANA,
FRANK FONTANA,
MARINO FONTANA,
NICHOLAS FONTANA,
ANTHONY FONTANA,
AND ALBERT FONTANA,
CO-PARTNERS, D/B/A
FONTANA BROS.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Fourth Floor, 16 Court St., Brooklyn, New
York 11201, Telephone 596-3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on May 1 and 2, 1967, at
A corrected petition was filed on August 8 because the Union then
learned the Company is not a corporation but a partnership; the amend-
Brooklyn, New York, on complaint of the General Coun-
sel against Fontana Bros., a partnership consisting of six
brothers, herein together called the Respondent, or the
Company. The underlying charge was filed on December
1, 1966, and the complaint issued January 31, 1967. The
principal issue litigated is whether the Respondent vio-
lated Section 8(a)(5) of the Act. Briefs were filed after the
close of the hearing by the General Counsel and the
Respondent.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Fontana Bros., a partnership consisting of Leonard
Fontana, Frank Fontana, Marino Fontana, Nicholas
Fontana, Anthony Fontana, and Albert Fontana, is en-
gaged in the manufacture, sale, and distribution of brief-
cases, schoolbags, and related products, with its principal
office and place of business in the Borough of Brooklyn,
city and State of New York. During the past year, a
representative period, the Respondent manufactured,
sold, and distributed from its said place of business
products valued in excess of $50,000, of which an amount
valued in excess of $50,000 was shipped in interstate
commerce directly to States other than New York. I find
that the Respondent is engaged in commerce within the
meaning of the Act, and that it will effectuate the policies
of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and I find that Leather Workers
Union , Local 60, affiliated with I.L.G.U. and N.W.U.,
AFL-CIO , herein called the Union , is a labor organiza-
tion within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
In the latter part of July 1966, a number of the approxi-
mately 37 production and maintenance employees of the
Company signed cards authorizing the Union to bargain
collectively for them, and by letter dated July 29 the
Union advised the Employer it had been "designated by
your employees," and requested a conference for pur-
poses of negotiating a contract. The letter suggested a
meeting for August 3; it was received by the Respondent
on Monday, August 1. That same day the Union filed a
petition with the Board requesting a Board-conducted
election (Case 29-RC-549). The next day, Tuesday, the
Company received a copy of this petition from the Re-
gional Director, together with an invitation to a con-
ference in his office for August 5. The Company
responded to this communication and such a meeting was
held on August.8, where an Agreement for Consent Elec-
tion was signed.' An election was held under Board
auspices on August 30, 1966, and of the 26 votes cast, 13
were for the Union and 13 against.
Two days later the Union filed objections to the results,
charging the Company with improper interference. The
Regional Director investigated and issued his report on
objections on November 22, in which he set the election
ment did no more than identify the employer as six individuals.
FONTANA BROS. 371
aside and directed that a new one be held. The Union
chose instead to accuse the Respondent of having il-
legally refused to bargain back on August 1, and it filed
such a charge on December 1.
The complaint alleges that on August 1, 1966, the
Company "refused" to recognize the Union and bargain
with it. It also lists: (1) 14 separate illegal acts of inter-
rogation by the six owner-brothers; (2) six (plus) in-
stances of threats to discharge employees, close and
move the plant away, insistence upon greater production,
and "other reprisals" by four of the brothers; and (3)
three (plus) promises of wage increases, promotions to
better paying jobs, advancement to office clerical posi-
tions, and "other benefits and improvements" in working
conditions by three brothers. The complaint then further
alleges that at least four times the partners urged and
sponsored the formation of an employee committee for
the purposes of negotiating with such a group concerning
working conditions throughout the plant, and that in fact,
on August 29, the day before the election, as well as "on
various other dates," all six brothers "bargained directly
tnd individually" with the employees.
The answer denies the commission of any unfair labor
practices. The evidence falls far short of proving these
multitudinous accusations.
A. Violation of Section 8(a)(1)
During the period of 1 month between the filing of the
representation petition and the election, there were a
number of conversations on the subject of the Union
between various of the Fontana brothers and the em-
ployees. The exact dates of each are not clear on the
record, for most of the employee witnesses spoke no En-
glish , and the one or two who did, spoke haltingly. About
a week after August 1, Pedro Diaz and Heriberto Her-
nandez, the two workmen who knew English better than
the rest and could therefore converse more freely with the
owners, who speak very little Spanish, were in the office
at noon with Leonard and Marino Fontana. They said
they were invited in. According to Diaz, Leonard asked:
"What about it, the Union? ... Did you sign a card?"
Diaz answered he had signed, and that the men "want
more benefits.',' He said that he and Hernandez were
there about 45 minutes or an hour talking, but that he re-
called nothing else except that Leonard Fontana did say
"Everybody have a free choice."
Hernandez testified there were four Fontana brothers
present, and that Leonard said: "What do people want?
... What are we doing wrong? ... why I had signed a
card." He answered "more benefits, more money, Good
Friday, and you should behave better with us." Leonard
then said, "if we joined the union we'll have to pay money
to the union. If we don't, we don't have to pay anything."
Leonard then asked, still according to Hernandez: "What
do people think? Can we have an election or not?" When
he answered yes, "They [the Fontanas] said, `It's all
right, so we go on to an election."'
Diaz also testified that a few days later, still in the early
part of August, Leonard showed him a letter at his work
station, without comment. It is a form letter dated August
2, 1966, addressed to the Respondent from the Governor
of Florida, inviting the Company to enjoy the "wonderful
natural climate" and "growing consumer market" of the
Sunshine State. Diaz paid no attention to the letter and
asked did Leonard want it back, the answer was no, and
Diaz threw it into a wastebasket.
Only Leonard, of the Fontana Brothers, testified. He
was called as an adverse witness by the General Counsel
at the start of the hearing. The Respondent called no wit-
nesses; it rested after the Government's case-in-chief.
Leonard said he did not invite the two men into the of-
fice, that they came themselves. He denied either he or
his brothers asked that day if the employees had joined
the Union; he said he was not sure whether the Union
was mentioned. As to the letter about Florida, Leonard
testified he had such a letter that had arrived that very
day-he frequently receives such solicitations from
distant places, and it may have been lying on his desk. He
admitted saying, but jokingly, "some day I'm going to
pack up and move to Florida and get out of this rat race."
I credit the employees, for Leonard conceded that he had
asked employees in the early part of August whether they
had signed cards. There is also uncontradicted testimony
of such interrogation by his brothers. Leonard explained
his purpose was to check on reports the employees had
been forced or threatened when they signed union cards,
but there is no evidence of any coercive conduct by the
Union. There is probably some truth in Leonard's story
that the two men wanted to discuss some "problems"
they had, even if it was he who invited them in, for they
did talk perhaps an hour, and both Diaz and Hernandez
remembered so little of what was said.
Other employees also testified they were asked
whether they had signed cards. Miguel Olmo said
Leonard one day asked him "what side I was"; he said he
was "the other side," and Leonard left him with "alright."
A week later Leonard asked him the same question and
again he gave the same answer. At this moment, still ac-
cording to Olmo, Nino (Marino) Fontana came by and
said: "Listen, Mike, where somebody doesn't like the
place can get divorce here, can get divorce if you don't
like the place." He answered: "That's right." Olmo also
recalled that Leonard one day showed him "a piece of
paper that belong from a check ... and there was five dol-
lars marked on the place where the union dues supposed
to be." Leonard said: "You see, you got to pay due for
the union ... not every day, but every week. Who do you
think pay for the car the guy from the union ride?"
Anibal Lugo testified that Marino Fontana asked him
whether he had signed a union card. Juan Davila said that
one day Nick Fontana said to him and Israel Cruz, also
an employee, "The union all racketeer ... Today you
sign for the union and tomorrow we close the factory."
Juan Hernandez also testified Marino Fontana asked had
he signed a card. All this testimony about the brothers
Marino and Nick Fontana stands uncontradicted, and the
employee witnesses gave every appearance of sincerity.
I credit them. Whether Nicholas meant it or not when
saying a signature today meant plant closing tomorrow,
his statement was nevertheless coercive upon the em-
ployees, and therefore constituted a violation of Section
8(a)(1) of the !Act. As to the interrogations, of which there
apparently were quite a few, they must be appraised in
the light of other evidence also given by these same em-
ployee witnesses. Especially is this important because the
General Counsel relies very much upon these inquiries,
which he calls improper, as one of the major supports for
the request for an affirmative order to bargain with the
Union now without a second election.
As stated above, when Leonard Fontana first asked the
two employees in his office why the others had joined the
Union in the first place, he also assured them everybody
had a free choice in the matter. Heriberto Hernandez
350-212 0-70-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quoted Leonard as saying "It's alright," after asking had
he signed a card . Leonard once told Olga Cepero there
"was going to be an election because some people wanted
a union and others do not , so each one could vote the way
he wanted." When Leonard asked Davila had he signed,
the answer was no , and the employer then said "If you
going to sign a card , you are free will." Davila also ad-
mitted that when Leonard was talking to him about the
Union in the office , he told the employee it was his
privilege to join or not to join.
The apparent basis for the multiple complaint allega-
tions of wrongdoing is a meeting with the employees that
took place in the factory on August 29, the day before the
election . Testimony of how the meeting came about and
what took place there was given by several employees
and by Leonard Fontana , and their stories are virtually in
full accord . Diaz said he approached Leonard Fontana to
say he wanted a meeting of all employees with the Com-
pany . "We have to get other employees and talk about the
union and the benefits." Fontana 's response was: "I don't
think is proper not [sic - typographical error for now] to
do it, but let me have a talk with my brothers ." Fontana's
version is Diaz approached him with "You always sug-
gested, recommended , if we have a problem come in and
talk with you about it ... we 'd like to have a little meet-
ing." He asked why the man had waited until the last day,
but consulted his brothers nevertheless . They advised
listening to the men "because if we don 't somebody else
will." The employees were assembled - almost all
towards the end of the lunch hour.
Diaz opened up and spoke for about 15 minutes;
Heriberto Hernandez talked perhaps 10 minutes, then
Juan Davila and Israel Cruz each took about 5 minutes.
As Diaz recalled : "We said, `The election is tomorrow, if
we win and we lose we like to keep working the way it
was before. Now, if we lost we still want benefits,
because that is why we signed the cards , we want benefits
for anybody , no matter the union ,' and he [Leonard
Fontana] said `We don 't promise anything, but let's see
what happen tomorrow."'
The employees asked . for Good Friday with pay,
shorter work hours, raises , and payment for time lost
because of industrial accidents . The response was that
because of the election the next day the partners not only
refused to make any concessions , but would not even
discuss any of the items with the employees. They
promised to think about all this but refused to do or say
anything at all. According to Fontana 's uncontradicted
and credited testimony , Diaz said : "Possibly we can
work out some sort of committee arrangement ... I don't
think we need a union here ." He got no commitment
whatever out of Leonard Fontana or his brothers.
I credit the testimony of Leonard Fontana - because it
is consistent with what several employees heard him say
throughout the month of August - that during this August
29 meeting his brothers said : ". . . they could vote if they
wanted to, we would -we were told by the NLRB that
they could vote if they wanted to or abstain if they wished
and they were to exercise their free choice . They could
not be forced to join the union and they couldn't be scared
out of joining."
Diaz also testified that as he and Heriberto Hernandez
were leaving , Marino Fontana said ". . . if the union win
we going to be his enemy ." Heriberto Hernandez gave
vacillating testimony on this subject. He first quoted
Marino as saying he was going to be "our enemy," then
added a different version . "He said if the election was
won he wasn 't going to be our friend any more . I told him
I didn 't need any friends, I needed the job and to be well
paid." A third witness , Davila , put these same words in
Marino 's mouth : "He said if the union won we know we
no want to be friends any more ." In his brief the General
Counsel reads this last bit of testimony as relating to an
earlier conversation between Davila and some of the
Fontana brothers . There is a serious question on the
record whether Davila was referring to an earlier meeting
or the very group conference on August 29, of which the
other witnesses spoke.
B. Alleged Violation of Section 8(a)(5)
1. Appropriate unit
The answer does not deny that the bargaining unit al-
leged in the complaint to be appropriate is in fact ap-
propriate ; it merely states the Respondent has no
knowledge of the fact. It is precisely the unit as described
in the consent-election agreement signed by the Respond-
ent on August 8, 1966, and in which the election of Au-
gust 30 was held without objection by the Company.
There is nothing of substance in the record suggesting
that the unit so set out in the complaint is not appropriate.
Accordingly, I find that all production , maintenance,
shipping , and receiving employees of the Respondent, ex-
cluding office clerical employees , temporary employees,
guards, watchmen, professional employees, and all super-
visors as defined in the Act , constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
2. Majority status
There was placed into evidence a written payroll list
prepared by the Company for purposes of the election of
August 30 and delivered to the Regional Director at that
time . Leonard Fontana testified it represents all em-
ployees at work during the week starting August 1, 1966,
the day he received the Union 's letter requesting a bar-
gaining conference . It was received into evidence with no
objection by the Respondent . There are 39 names on the
list, but two - Frank Fontana and Mathew Fontana -
were excluded by stipulation at the hearing because they
are sons of the employers . The starting total against
which majority authorization is to be measured is there-
fore 37 employees.
The General Counsel offered into evidence 25 signed
union cards , each literally authorizing the Union to
represent the employee in collective bargaining . Twenty-
three are dated during the month of July and stamped on
the back as received in the Board's Regional Office on
August 1 , apparently submitted in support of the Union's
petition in Case 29-RC-549. The card of Lidia Tavares
(Soto), although undated , is also stamped "received
NLRB August 1, 1966." Juan Davila's card was received
in the Board's office in January 1967. He testified he kept
it in his possession for about a month because he was un-
decided and then signed it "about 2 weeks before" the
election . There is no question Davila did not sign his card
until very late. He detailed a conversation with one of the
owners on the subject of the Union in August, and then
again repeated he had not yet as of that time signed his
card. His card is not timely signed for purposes of this
case, and cannot be counted.
FONTANA BROS. 373
Three cards are in the names of Fabian Lopez Jiminez,
Paul Garcia, and Juan Gonzalez Delgado. Their names
are not on the payroll list and there is no other indication
they worked after the month of July. These cards also
must be ignored. One card is signed by Edwin Aponte,
whose name also does not appear on the payroll list. The
parties stipulated he worked 18-3/4 hours during the
week starting August 1. His card will therefore be
counted. The fact he worked the first week of August
raises the total complement in the appropriate unit at the
time to 38.
Of the 21 cards to be considered, 13 were authen-
ticated by the employees personally at the hearing. Of
these Felipa Figueroa testified directly "I signed it to join
the union." She also said "I didn't sign it because I didn't
know how to read or write without my son at my
direction." I find no merit in the Respondent's contention
that this testimony does not suffice to prove this em-
ployee intended to and in fact authorized the Union.
The remaining eight cards are supported by the
testimony of Juan Perez, who worked during July and sol-
icited these people; the employees themselves did not ap-
pear at the hearing.2 Perez testified that he distributed the
eight cards in question to these employees personally,
that he told each what it was for, and that soon thereafter,
in some cases as long as several days, each one of the em-
ployees returned the card to him signed. Subject to insig-
nificant variances, he testified as follows about what he
told each person when delivering the card: "I told him
this card was for the purpose of bring the Union to the
factory and he agreed."3
Perez also authenticated his own signature. While the
date appearing on the card seems to have been written in
someone else's handwriting, it is stamped "August
1-NLRB" on the back, and the Respondent stipulated
he left the Company's employ on August 2, 1966. His
card is therefore valid here, and the total number of em-
ployees in the unit as of August 1, 1966, now becomes
39.
The Respondent objects to reliance upon these eight
cards as proof of union authorization because there is no
eyewitness testimony going directly to the signing of the
cards. There need be none.4 The Respondent has not as-
serted that these, or any of the other cards received in
evidence, were not in fact signed by the employees whose
names appear both on the cards and on the payroll list. As
stated above, it offered no evidence in defense, although
it might have produced other record documents in its pos-
session bearing the signatures of its employees. There is
therefore no reason to question the reliability of the signa-
tures.
A more pressing argument of the Respondent is that
the cards may not be used to prove majority authorization
because almost all of the employees involved cannot read
or speak English, and the cards are printed in English. As
to the 13 which were identified by the individual em-
ployees themselves, each testified either that he was told
in so many words by the solicitor that the card was "for
the Union," or that he signed because "he wanted the
Union." In the context of their total testimony, and of the
situation and general activity then in progress in the shop,
it is clear to me that this latter group, when saying they
"intended" by signing to join the Union, really meant that
their frame of mind was shaped by what they were then
told to be the purpose of the cards, whatever language
was spoken among them at the time. They are largely
Puerto Ricans and South Americans. If Spanish-speaking
people in the United States can vote in political elections
even before they master our own language, I see no
reason why they cannot also indicate their attitude
toward union representation by signing a card printed in
English. And the Respondent has not advanced persua-
sive argument to the contrary.
Moreover, the word "union" appears several times in
large and small letters on each side of the card. The very
fact some employees kept the cards in their possession a
day or more before returning them signed, is strong indi-
cation they studied the matter well before deciding. The
probability they knew what they were doing therefore
becomes much higher. That the employees of the factory
as a group in July and August well knew what all this
card-signing activity was about, cannot be doubted, if
only because of the many conversations between in-
dividual workmen and the Fontana brothers, including
the extended group conference of August 29, where
much was said by the more articulate employees in
Spanish. I think these cards are adequate proof of written
authorization of the Union before the demand and refusal
date.
I find that on August 1, 1966, when the demand was
received and bargaining did not take place, the Union in
fact represented a majority of the employees in the ap-
propriate bargaining unit and was, by virtue of the statute,
the exclusive bargaining representative of all the em-
ployees in the unit.
Not every situation where a demand for immediate bar-
gaining is followed by an election which the Union loses
ends with an affirmative Board order to bargain forthwith.
The test distinguishing one case from another has been
variously stated as good or bad faith, as proof of an intent
to dissipate the Union's established majority status, or as
an inferred objective to deprive employees of their statu-
tory rights to self-organization.5 However the question be
phrased, it is not enough that the employer did not bar-
gain and chose to go to an election; there must be
something more to prove a violation of, Section 8(a)(5).6
2 The eight cards in question are signed by Ismael Gerena, Gladys Nu-
nez, Gilberto Lopez, Jose Ramirez, Carmelo Mendez, Carmen Bonilla,
Israel Cruz, and Valerio Soto
3 I Taitel & Son, 119 NLRB 910.
Perez testified in Spanish through an interpreter . On cross - examination
counsel for the Respondent asked did he know the name of the Union, and
the answer was "Local 66 " In fact it is Local 60. After the transcript of
the hearing was received by the parties the Respondent filed a motion "To
Amend Official Report of Proceedings" to reflect brief comments voiced
by the General Counsel and by Mr. Rosenberg, counsel for the Union, im-
mediately after this response by the witness. Those words do not appear
on the record because the lawyers were then speaking simultaneously; nor
does the transcript reflect the Trial Examiner's statement then to the
General Counsel not to interrupt the cross-examination or prompt the wit-
ness . It is possible the General Counsel may have been under the impres-
sion the interpreter had misquoted the witness speaking in Spanish. The
Union filed no objection to the motion to amend, and the General Counsel
filed a reply saying he did not object to any correction . I grant the motion
because I clearly recall the General Counsel 's statement at that moment
that the Union was "Local 60." The transcript is accordingly corrected to
show this statement of the General Counsel . Later , on redirect , he asked
Perez for the name of the Union, and the answer was "Local 60." In the
circumstances I have ignored this last answer I do not believe, however,
considering the record in its entirety, that the evidence fails to prove the
authenticity of the cards or the intent of the employees who signed.
4 J Duncan Company, 159 NLRB 112.
Joy Silk Mills, 85 NLRB 1263.
' John P. Serpa, Inc., 155 NLRB 99.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor does it suffice that some violation or other of Section
8(a)(1) has been established.' As is true of any unfair
labor practice complaint , there rests an affirmative bur-
den of proof upon the Government , and it is not a trivial
one. That the refusal to bargain was illegal must be shown
by a preponderance of the substantial evidence consider-
ing the record as a whole .8 This means that all pertinent
factors must be appraised in their relationship to the heart
question , those which indicate bad faith as well as those
which point to the absence of unlawful motivation. I be-
lieve the total evidence in this case does not support the
complaint allegation that the Respondent violated Section
8(a)(5) of the statute.
The one clear unfair labor practice committed by the
Respondent is Nicholas Fontana 's statement to em-
ployees Davila and Cruz: "Today you sign for the Union
and tomorrow we close the factory." This was illegal
coercion in violation of Section 8(a)(1), and I so find.
Marino told Miguel Olmo "when somebody doesn't like
the place can get divorced here ." He said the same thing
to Heriberto Hernandez , who in fact was in process of
divorcing his wife . This was sarcasm and certainly indica-
tive that the Fontana brothers did not like the idea of a
union in the shop and preferred these men should quit.
But it requires a straining of words to hold, as the General
Counsel suggests , that Marino was threatening to
discharge the men . On August 29, he also said , if Diaz
quoted him correctly, the men would be his "enemies" if
they voted for the Union . It is also possible he used less
intimidating language , for as Davila remembered it, the
statement was Marino would no longer consider the em-
ployees his "friends ." Of course , he was not obligated to
like the help ; the law only demands that the employer not
hurt or threaten them if they choose to act through a
union.9
There was much interrogation of whether the men had
really signed cards and why they wanted a union at all.
But not all interrogation is illegal . 10 And when the Board
is faced with deciding whether such questioning during a
union organizational campaign is or is not unlawful, the
most critical aspect examined is whether or not the em-
ployer gave assurance to the employees that his purpose
in asking was not to threaten them with reprisal. Here
time and again the Fontana brothers told the employees
they were free to act as they pleased ; even Nicholas, the
offender , said it was the employees ' privilege to join or
not to join the Union.
The complaint lists all sorts of promises of benefits,
promotions , threats of discharge, invitations to form an
employee committee instead of attempting to bargain
through the Union , and direct bargaining with the em-
ployees behind the Union 's back . The only real evidence
touching on these subjects is testimony that at the August
29 meeting Diaz - not any of the Fontanas - suggested
there might be a committee in the event the Union lost the
election the next day. I t
Other things must also be considered . The demand
letter and the . Regional Director 's invitation to a con-
ference in an office of the Federal Government reached
Leonard Fontana almost simultaneously . On Monday he
received the Union's letter, and on Tuesday a copy of the
representation election petition with the Regional
Director 's communication . If he took time to think on
Monday , this is to be expected of a small businessman
acting without a lawyer . The demand letter said nothing
of majority in so many words , and he could well have
thought the Regional Director 's invitation was a more
pressing claim upon his attention . He answered promptly
and agreed to an election without delay . And at the con-
ference in the Board office the union representatives did
not say to him, or to his brothers , that the Union wanted
to bargain now, and never mind the election they were
then arranging simultaneously.
This is a case where the "refusal" to bargain , if refusal
it can be called , came in the form of failure to respond to
the first letter . The second one also being essentially a
communication from the Union , via the Regional
Director , there was bound to arise an element of uncer-
tainty in the thinking of management . Good faith is a two-
way street , and perhaps it would not have been too great
a burden upon the Union at least to enlighten Leonard
Fontana on what the basic demand was, instead of wait-
ing until December before first repeating the demand of
August 1 by filing the charge.
Of much greater significance to the main question,
however , is the meeting with all employees on August 29.
The contentions of the complaint and the General Coun-
sel's brief to the contrary notwithstanding , the partners
did nothing wrong that day . Unless , of course , the law
now is that an employer must not only refrain from speak-
ing to the employees before an election , but he must also
turn away and close his ears if any of them attempt to
speak to him . They literally did no more than listen,
telling the employees, before the meeting and after they
had had their say, that nothing would come of anything
they might ask or suggest . They even assured the em-
ployees once again that they were free to do as they
pleased at the vote the next day . In Diaz' own words, - he
was the principal spokesman for the employees , - "they
[the Fontana brothers ] said they can do nothing about it,
because they have to wait until the next day until the elec-
tion finished." With this there is no reason for questioning
Leonard Fontana's testimony that "we said , we can't
promise you nothing , there 's an election coming up the
next day . We will listen to you . What do you want? .. .
We'll wait until all this is resolved by means of the elec-
tion . We'll just listen. We couldn 't promise them
anything, we told them, sir."
The essential theory of the complaint is that the reason
why the Respondent did not bargain at the beginning of
August was to gain time for undermining the Union. But
if such were really the hidden motive , what better oppor-
' Dayton Food Fair Stores, 165 NLRB 14.
1 N.L.R.B. v. Glen Raven Silk Mills, Inc., 203 F.2d 946 (C.A. 4).
9 Cf. Signal Manfacturing Co., 150 NLRB 1162.
10 Blue Flash Express, Inc.; 109 NLRB 591.
11 There is some confused and, at times , unintelligible testimony by
Davila on this subject of a committee . He speaks English very poorly.
Testifying first without an interpreter, he seemed to say Leonard at this
mass meeting told the men "when the election is finished , he going to ask
a couple of those guys to go to the office to talk ..." Because the General
Counsel was not satisfied the witness ' words were being accurately heard,
he asked that an interpreter be used. In this fashion , Davila then said:
Leonard said that he could not offer anything. Not until after the elec-
tion....
Q. Was anything said about a committee?
A. Yes, but I am not sure whether it was right there or it was in the
factory ... I am not sure who told me about committee , whether it
was Pedro [ Diaz] or Leonard or Nick. I don't remember , but they
told me, they said that he said that if they won, there would be a com-
mittee, if they won the election there would be a committee ... I
don't know what the committee was for.
FONTANA BROS. 375
tunity for implementing the design than the very moment
before the balloting with the employees virtually asking
to be bought off? An employer seeking to scuttle the
Union's campaign would have seized the moment-at
least by some hint of favor -to wean the beginning doubt
of the employees and encourage it to grow into confident
rejection of the Union. Instead the Respondent brothers
were careful to avoid even the semblance of bribery.
Their failure to rise to the temptation therefore becomes
affirmative evidence of good faith, rather than proof of il-
legal intent, as the General Counsel would have it.
Cases of this kind always leave a residue of doubt. We
look and see with our eyes, but never know the color of
the soul of man. Another mind could have another
thought. I conclude that the record in its entirety does not
prove the bad faith of the Respondent in its initial failure
to bargain with the Union. I shall therefore recommend
dismissal of the complaint in this respect.
Nicholas Fontana's statement to two employees that
card signing meant plant closure clearly constituted a
violation of Section 8(a)(1) of the Act. The comment was
never repeated; instead later assurances to the employees
that they should feel free to follow their individual inclina-
tions in the election must have had the effect of dissipat-
ing, at least partially, the intimidating force of his single
statement. In any event I do not think the policies of the
Act require a formal cease-and-desist order based upon
this isolated unfair labor practice. I will therefore recom-
mend dismissal of the complaint in its entirety.
RECOMMENDED ORDER
It is hereby ordered that the complaint against Fontana
Brothers, Brooklyn, New York, be, and it hereby is,
dismissed.