Fotochrome, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1964

146 N.L.R.B. 1010 (N.L.R.B. 1964)

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nora.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Eastern
'Columbia Building, 849 South Broadway , Los Angeles , California, Telephone No.
688-5204, if they have any question concerning this notice or compliance with its
provisions.
Fotochrome, Inc. and Blueprint , Photostat & Photo Employees
Union Local 249, International Jewelry Workers ' Union, AFL-
CIO and Local 422, International Production Service and Sales
Employees Union , Party in Interest. Cases Nos. 2-CA-8671,
2-CA-8776, ?-CA-8795, and 2-CA-8869. April 23, 1964
DECISION AND ORDER
On May 8, 1963, Trial Examiner John F. Funke 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, but nevertheless recommending dismissal of the complaint's
allegations relating thereto because of the isolated character of the un-
fair labor practices so found, as set forth in the attached Intermediate
Report. He also found that the Respondent had not engaged in other
unfair labor practices alleged in the complaint and recommended dis-
missal of those allegations. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Intermediate Report and sup-
porting briefs. The Respondent filed a brief in support of the Inter-
mediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Fanning].
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 Inter-
mediate Report and the entire record in these cases, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, but only to the extent con-
sistent with our Decision herein.'
I We do not subscribe to the Trial Examiner's comments concerning the prevalence of
perjury in Board hearings generally, or in the present one specifically. It must be re-
membered that two witnesses may give different accounts of the same factual situation
without committing perjury, because differences may reasonably be expected when truth-
ful witnesses give their versions of events in which they are emotionally involved. In any
event we believe that the Trial Examiner was correct in crediting testimony in this case,
and therefore we affirm his credibility findings.
We disavow any comments by the Trial Examiner concerning conditions at Board hear-
ings. If the Trial Examiner believed that the Board should have taken some action in this
matter, he was free to proceed through normal administrative channels at the appropriate
time.
146 NLRB No. 120.
FOTOCHROME, INC. 1011
The complaint alleged that the Respondent violated : Section 8 (a) (2)
of the Act by allowing Supervisors Parragio, Canning, Kurtz, and
Wilson, at the Bronx plant of Respondent, and Ricciardi, plant, man-
ager at the Elmsford plant, to urge the employees to listen to orga-
nizers of Local 422, International Production Service and Sales Em-
ployees Union, or to sign authorization cards for this union, at the
time when Local 249, International Jewelry Workers Union, was their
collective-bargaining representative, and by its unlawful assistance to
Local 422; Section 8(a) (5) by contributing to the loss of majority
status of Local 249 and thereafter refusing to recognize Local 249;
Section 8(a) (3) by refusing to reinstate the unfair labor practice
strikers upon their unconditional offer to return made on their behalf
by Local 249; and Section 8 (a) (1) by the preferred treatment ac-
corded Local 422 over Local 249, by attacking Edward Wisotsky,
secretary-treasurer of Local 249, by threatening Young, president of
Local 249, by monitoring a call by Shop Steward McFetridge to Local
249, and by promise of benefits to employees Whelan, Rizzo, Ortiz,
and Franchini.
The facts are :
The Respondent had recognized and contracted with Local 249 since
1938. About 2 weeks prior to May 28, 1962, Supervisor Parragio at
the Bronx plant of the Respondent indicated to employee Herrick
that, if the incumbent Local 249 was not careful, there would be an-
other union in the plant. This threat was repeated to employee Her-
rick on the morning of the 28th. On that date, Mary Giannantonio,
an employee and former shop steward for Local 422 at another plant,
asked Plant Manager- Ricciardi at the Elmsford plant about a possible
strike. Ricciardi called a meeting of the employees at the plant and
stated that Local 249's contract had expired. At this point, Gian-
nantonio took over the meeting and told the employees that if they did
not want a strike they should bring in another union. She then
called Local 422 and left word for Jinnie Matienzo, president of Local
422, to visit the Elmsford plant. At the same time, Ricciardi called
,Respondent's president, Nadaline, and informed him of the situa-
tion. Nadaline told Ricciardi to get the girls back to work and not to
interfere.
Shortly after 2 p.m. on May 28, Matienzo arrived at the Elmsford
plant where he was met by Giannantonio. Plant Manager Ricciardi,
contrary to Nadaline's statement about not interfering, told the girls
to take their coffee break and go out and listen to Matienzo. Matienzo
then had a discussion with Ricciardi which ended with Ricciardi sign-
ing a card for Local 422. Ricciardi also distributed two cards for Local
422 to one employee with directions that he should fill one out and
give the other to another employee to fill out. Matienzo left the Elms-
ford plant, went to his office, and sent a telegram to Respondent de-
1012• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manding recognition at the Elmsford plant. From there he went to
the Bronx plant of the Respondent.
Before he arrived, two other Local 422'organizers arrived on the
scene. About 2 p.m., Supervisor Parragio took employee Herrick
across the street to Local 422 organizers, telling him to sign a card
and indicating that he, Parragio, had already signed. Herrick re-
fused. Later in the afternoon, Parragio again attempted to have Her-
rick sign a card but again Herrick refused. Between these two
attempts by Parragio to induce Herrick to sign a card, Herrick was
called into President Nadaline's office and was present while Nadaline
reprimanded Parragio for signing with Local 422 and instructed him
to tell the employees that they did not have to sign and that they
could choose their own representative in an election. However, Par-
ragio not only failed to relay Nada]ine's instructions to any employees,
but continued his assistance to Local 422.
During the same period, Supervisors Kurtz, Canning, and Wilson
told their supervisors to listen to the Local 422 organizers and granted
them time off to do so. To one employee, Nieves, Supervisor Kurtz
stated that the Respondent knew who had signed for Local 422, and
would close down if Local 422 did not gain representative status. One
of the employees, Manuel Fonseca, who was encouraged by Kurtz to
sign a Local 422 card, was called into Kurtz' office where Kurtz and
Nadaline were present. Nadaline asked Fonseca if he had joined
Local 422, and when Fonseca told him he had not, Nadaline said,
"Good." He then told Fonseca to go through the building and tell
everyone that Respondent was in the process of negotiating a new
contract with Local 249. However, by the end of the day Fonseca
had not done so and by this time most of the employees had executed
authorization cards on behalf of Local 422.
During the day, Nadaline was met by two employees, Kay Smith
and Terry Benson, as they entered the plant. They informed him
that they had signed cards for Local 422. Nadaline made no com-
ment. Later that day, while touring the plant, Nadaline told em-
ployee Edith Hauser that she did not have to sign with Local 422.
Apart from the statements to Herrick, Fonseca, and Hauser, Nadaline
did not assure any other employees that they did not have to sign
with Local 422.
When Local 249 Shop Steward McFetridge saw that supervisors
were assisting Local 422 organizers, he called Young, president of
Local 249, and told him that another union was signing up the em-
ployees. Young told McFetridge not to do anything until he had
time to investigate the situation, and that he would later instruct
McFetridge what to do. Later that afternoon Young called Me-
Fetridge and asked him how things were going at the plant. Young
informed McFetridge that, if he could not stop the assistance, he
FOTOCHROME, INC. 1013
should call the employees out on strike. This was done later in 'the
day.
On September 17,1962, Local 249 sent identical letters to the Elms-
ford and Bronx plants of Respondent making an unconditional offer
to return to work on behalf of the strikers. The Respondent refused
to reinstate them.
On the basis of the above facts, the Trial Examiner found that
Respondent did not violate Section 8(a) (2) of the Act at the Bronx
plant because Respondent President Nadaline had effectively dis-
avowed the acts of his supervisors. He further found that, while
Ricciardi did assist Local 422 at the Elmsford plant, this assist-
ance was too isolated to warrant a remedial order. With respect to
the alleged violations of Section 8(a) (1), the Trial Examiner found
that the only proven act of interference was Respondent's promise of
benefit to employee Ortiz, but he concluded that this was too isolated
to warrant a remedy. Having dismissed the alleged violations of
Section 8(a) (2) and (1), the Trial Examiner found that the Gen-
eral Counsel failed to sustain the burden of proving that Respondent
violated Section 8 (a) (5) by undermining the representative status
of Local 249 through its unlawful assistance to Local 422. Finally,
he found that, when the employees struck on May 28, they engaged in
a strike for economic reasons. Finding there were no jobs available
for them when they applied for reinstatement, the Trial Examiner
concluded that Respondent did not violate Section 8(a) (3) by refus-
ing to reinstate them. For the reasons set forth below, we do not
adopt the foregoing findings, conclusions, and recommendations of
the Trial Examiner.
1. As indicated above, the Trial Examiner found that certain super-
visors and Plant Manager Ricciardi had assisted Local .42-9, while
Local 249 was the collective-bargaining representative of the employ-
ees, but he nevertheless refused to find a violation of Section 8 (a) (2)
of the Act because President Nadaline had disavowed the misconduct
of his supervisors and because Ricciardi's activities were isolated. The
record shows that, of the 180 employees at the Bronx plant affected
by the supervisory misconduct, only 3 employees at most were told
that they did not have to sign cards for Local 422. Neither Super-
visor Parragio nor employee Fonseca relayed to any other employees
Nadaline's instructions that they were not required to sign with Local
422. Twice during this period of assistance by the supervisors, Nada-
line failed to disavow their activity when presented with the op-
portunity to do so; once when employees Kay Smith and Terry Ben-
son indicated that they had both joined Local 422, and Nadaline failed
to comment on this; and, again, when Nadaline failed to explain
his position of neutrality when he went out among the strikers after
the strike had began. Moreover, Nadaline could easily have stated a
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position of neutrality to the employees by making an announcement
to that effect over the plant intercom system, a means of communica-
tion normally used to address employees. Accordingly, we find that
President Nadaline did not effectively disavow the acts of illegal as-
sistance accorded to Local 422 by his supervisors, and that their acts at
the Bronx plant constituted a violation of Section 8(a) (2) of the Act.
We further find, particularly, in the context of what occurred at the
Bronx plant, that the assistance given to Local 422 by Plant Man-
ager Ricciardi at the Elmsford plant was not isolated but constituted
additional unlawful assistance to that Union in violation of Sec-
tion 8(a) (2).
2. The unlawful assistance given Local 422, as found above, also
dissipated the majority position Local 249 held on the day of the strike.
As such loss of majority status resulted from the Respondent's unfair
labor practices, it cannot be used by the Respondent as u defense to its
refusal to bargain with Local 249. We therefore find that the Re-
spondent, by refusing to bargain with Local 249, violated Section
8 (a) (5) of the Act.
3. There remains for consideration the Respondent's refusal to rein-
state the strikers upon the unconditional offer to return made on their
behalf by Local 249 on September 17, 1962. The Trial Examiner
found no violation on this aspect of the case because he found the strike
to be economic, and the strikers entitled to reinstatement only if there
were jobs available. Since no showing was made that any work was
available for any of the strikers on September 17, the Trial Examiner
recommended dismissal of this allegation. However, the facts set
out in the Intermediate Report show that the strike was called because
of unlawful assistance given to Local 422. When the supervisors
began their assistance at the Bronx plant, Shop Steward McFetridge
informed Young, president of Local 249, of this activity. Later,
Young called McFetridge to check on the assistance and was told that
it was continuing. Young at that time told McFetridge to pull the
employees out on strike if he could do nothing else. This conversa-
tion was overheard by President Nadaline. Later in the day Presi-
dent Young, along with Edward Wisotsky, secretary-treasurer of
Local 249, again informed Nadaline that this was the cause of the
strike. We find that the strike was therefore an unfair labor prac-
tice strike. The strikers, as unfair labor practice strikers, were not
subject to permanent replacement and Respondent's refusal to rein-
state them upon their unconditional offer to return to work violated
Section 8 (a) (3) of the Act.
4. In view of our findings as to the violations of Section 8(a) (2),
(5), and (3), we further find that promise of benefit to employee
Ortiz is not isolated and is violative of Section 8 (a) (1).
FOTOCHROME, INC.
THE REMEDY
1015
Having found that the Respondent has engaged in the unfair labor
practices set forth above, we shall order that it cease and desist there-
from and take certain affirmative actions designed to effectuate the
policies of the Act.
Having found that the Respondent unlawfully assisted Local 422,
we shall order that the Respondent cease sponsoring or promoting any
labor organization of its employees or contributing any form of aid or
support to Local 422, or any other labor organization, and from other-
wise interfering with the representation of its employees in a labor
organization of their own choosing.
Having found that the Respondent refused to bargain with Local
249, in violation of the Act, we shall order that, upon request, Respond-
ent bargain with that Union as the exclusive bargaining agent of its
employees in the appropriate unit?
Having found that the strikers were unlawfully refused reinstate-
ment, we shall order that the Respondent offer them reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, dismissing, if neces-
sary, any employees hired to replace them. Since the strikers are en-
titled to backpay from the date they abandoned the strike, and be-
came available for employment, we shall order that the Respondent
make whole these strikers by payment to each of them of a sum of
money equal to that which he normally would have earned as wages
during the period from 5 days after the date on which he applied for
reinstatement (September 17, 1962), to the date of the Respondent's
offer of reinstatement, such sum to be computed in the manner set
forth in F. W. Wooloorth Company, 90 NLRB 289, and Isis Plumbing
c Heating Co., 138 NLRB 716.
We shall also order the Respondent to cease and desist from promis-
ing economic benefits to employees if they abandon the strike.
ORDER
Upon the entire record in this 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, Fotochrome, Inc.,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Recognizing Local 422, International Production Service and
Sales, Employees Union, or any successor thereto, as the bargaining
representative of any of its employees in the appropriate unit, both
The appropriate unit: All production and maintenance employees of the Respondent at
the Bronx and Elmsford , New York, plants , including office clerical employees , but exclud-
ing guards and supervisors as defined in the Act.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until it has complied with the provisions of this Order requiring it to
bargain, upon request, with Blueprint, Photostat & Photo Employees
Union Local 249, International Jewelry Workers' Union, AFL-CIO,
and thereafter, unless and until such labor organization shall have been
certified as the exclusive representative of such employees by the -
Board.
(b) Sponsoring or promoting any labor organization of its em-
ployees or contributing any form of aid or support to Local 422, In-
ternational Production Service and Sales Employees Union, or any
other labor organization, or otherwise interfering with the representa-
tion of its employees by a labor organization of their own choice.
(c) Refusing to bargain collectively, upon request, with Blueprint,
Photostat & Photo Employees Union Local 249, International Jewelry
Workers' Union, AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit : All production and
maintenance employees of the Respondent at its Bronx and Elmsford,
New York, plants, including office clerical employees, but excluding
guards and supervisors as defined in the Act, with respect to rates of
pay, wages, hours of employment, or other terms or conditions of
employment.
(d) Encouraging membership in Local 422, International Produc-
tion Service and Sales Employees Union, or discouraging membership
in Blueprint, Photostat & Photo Employees Union Local 249, Inter-
national Jewelry Workers' Union, AFL-CIO, or in any other labor
organization of its employees, by refusing to reinstate or in any other
manner discriminating against any of its employees in regard to their
hire or tenure of employment , or any terms or conditions of employ-
ment, except to the extent permitted by Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
(e) Interfering with the rights of employees by promising benefits
to induce them to abandon protected strike or other concerted
activities.
(f) In any other manner interfering with , restraining , or coercing
employees in the exercise of their rights to self -organization , to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the National Labor Relations Act, as
amended :
(a) Upon request , bargain collectively with Blueprint, Photostat
Photo Employees Union Local 249, International Jewelry Workers'
FOTOCHROME, INC. 1017
Union, AFL-CIO, as exclusive bargaining representative of all em-
ployees in the appropriate unit described above and, if an agreement
is reached, embody such agreement in a signed contract.
(b) Withdraw recognition from Local 422, International Produc-
tion Service and Sales Employees Union, both until it has complied
with the provisions of this order requiring it to bargain upon request
with Blueprint, Photostat & Photo Employees Union Local 249,
International Jewelry Workers' Union, AFL-CIO, and thereafter,
unless sand until said labor organization shall have been certified as
the exclusive bargaining representative by the Board.
(c) Offer to those employees refused reinstatement immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights or privileges, and
make them whole for any loss of earnings they may have suffered as
a result of the discrimination against them in the manner and to the
extent set forth in the section entitled "The Remedy."
(d) Post at its plants in Bronx and Elmsford, New'York, copies
of the attached notice marked "Appendix" 3 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 immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its 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.
(e) Notify the Regional Director for the Second Region , in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
s 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 , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT recognize Local 422, International Production '
Service and Sales Employees Union, or any successor thereto, as
the bargaining representative of any of our employees until we
have bargained with Blueprint, Photostat & Photo Employees
Union Local 249, International Jewelry Workers' Union, AFL-
1018 DECISIONS OF NATIONAL-,LABOR RELATIONS BOARD
CIO, and - thereafter, unless and until such labor organization
shall have been certified as the exclusive representative of such
employees by the National Labor Relations Board.
WE WILL NOT sponsor or promote any labor organization of our
employees or contribute any form of aid or support to Local 422,
International Production Service and Sales Employees Union, or
any other labor organization, or otherwise interfere with the repre-
sentation of our employees by a labor organization of their own
choice.
WE WILL NOT refuse to bargain collectively, upon request, with
Blueprint, Photostat & Photo Employees Union Local 249, In-
ternational Jewelry Workers' Union, AFL-CIO, as the exclusive
bargaining representative of our employees in the following ap-
propriate unit: All production and maintenance employees at the
Bronx and Elmsford, New York, plants, including office clerical
employees, but excluding guards and supervisors as defined in the
Act, with respect to rates of pay, wages, hours of employment, or
other terms or conditions of employment.
WE WILL NOT encourage membership in Local 422, International
Production Service and Sales Employees Union, or discourage
membership in Blueprint, Photostat & Photo Employees Union
Local 249, International Jewelry Workers' Union, AFL-CIO, or
in any other labor organization of our employees, by refusing to
reinstate or in any other manner discriminating against any of
our employees in regard to their hire or tenure of employment, or
any terms or conditions of employment, except to the extent per-
mitted by Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959. _
WE WILL NOT interfere with the rights of employees by promis-
ing benefits to induce them to abandon protected strike or other
concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to
engage in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities.
WE WILL withdraw recognition from Local 422, International
Production Service and Sales Employees Union, both until we
have complied with the requirement that we bargain with Blue-
print, Photostat & Photo Employees Union Local 249, Interna-
tional Jewelry Workers' Union, AFL-CIO, upon request, and
FOTOCHROME, INC. 1019
thereafter, unless and until such labor organization shall have
been certified as the exclusive bargaining representative by the
National Labor Relations Board.
WE WILL offer to those employees refused reinstatement im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights or privileges, and make them whole for any loss of earnings
they may have suffered as a result of the discrimination against
them.
FOTOCHROATE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-described employees presently serv-
ing in the Armed Forces of the United States of their right to full
reinstatement upon application and in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York,
New York, Telephone No. 751-5500, if they have any questions con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed against Fotochrome, Inc., herein called Fotochrome or the
Respondent, by Blueprint, Photostat & Photo Employees Union Local 249, Inter-
national Jewelry Workers' Union, AFL-CIO, herein called Local 249, on June 1,
July 27, and August 13, 1962, the General Counsel issued a consolidated complaint,'
and an order consolidating the cases. This proceeding, with all parties represented,
was heard before Trial Examiner John F. Funke at New York, New York, on
various dates between November 7 and December 6, 1962, and between January 23
and February 1, 1963.
The complaint, as amended, alleged that Respondent failed to bargain in good
faith with Local 249; gave unlawful aid and assistance to Local 422, International
Production Service and Sales Employees Union, herein called Local 422; unlawfully
refused to reinstate striking employees; kept the activities of representatives of
Local 249 under surveillance; threatened to inflict and did inflict bodily harm upon
officials of Local 249; and promised benefits to members of Local 249 to induce
them to abandon the strike. The General Counsel alleged that Respondent, by
these acts, violated Section 8(a)(1), (2), (3), and (5) of the Act.
The answer of Respondent, as amended, denied the material allegations of the
complaint and the commission of any unfair labor practices.
At the conclusion of the hearing the General Counsel submitted brief oral
argument, the other parties were granted leave to request oral argument, and all
' The complaint was amended at the hearing to include office clericals in the appropriate
unit.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties were granted leave to submit briefs . Comprehensive briefs were received
from the General Counsel , Respondent , and the Charging Party on March 25 .2
Motions upon which decision was reserved at the hearing are disposed of in
accordance with the Recommended Order herein .3
Upon the entire record 4 in this case, and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
Fotochrome maintains its principal place of business at 1874 Washington Avenue,
Bronx , New York , where it is engaged in the sale and distribution of photographic
supplies, accessories , equipment , and related products and in the processing of
photographic films. During the past year Respondent purchased and caused to be
delivered to its Bronx and Elmsford , New York , plants,5 goods and materials valued
in excess of $50,000 from places outside the State of New York. During the past
year Respondent sold and distributed from its Bronx and Elmsford plants products
valued in excess of $50,000 which it shipped to places outside of the State of
New York. -
I find Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATIONS INVOLVED
Locals 249 and 422 are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The background
Frank Nadaline is president and majority stockholder of Fotochrome and in full
charge of its operations . Prior to the formation of Fotochrome in 1960 he had
been associated with several of the predecessor companies.
At the hearing the parties entered into the following stipulation:
Frank Nadaline has been an employer engaged in photo finishing and in
processing film and in the distribution of wholesale photographic film and equip-
ment since 1935.
Since 1938 , the companies he has been associated with have had contractual
relationships with Local 249, the Charging Party, or a predecessor union.
In June of 1960 , Fotochrome , Inc. commenced a series of consolidations with
various other photo finishing companies including Fotochrome Color Corpora-
tion, Chroma Color Corporation, Lord Film Corporation, Regal Distributors,
Inc., and Melrose Foto Service, Inc, all of which companies at the time recog-
nized Local 249 as the collective bargaining representative of their employees
and had contractual agreements with that union.
During January and February 1961, Fotochrome, Inc. acquired the follow-
ing companies: General Photo, Paramount Photo Service and Norlin Color
Corporation. These three companies at the time recognized Local 249 as the
collective bargaining representative of their respective employees and had con-
tractual relations with said companies covering said employees.
2 The time for filing was extended due to the voluminous record and the illness of counsel
for Respondent . The exhibits , which are both numerous and bulky, were not received by
the Trial Examiner until March 12.
3 Respondent moved to strike the name of Angelo Patrissi from paragraph 14 of the
consolidated complaint on the ground that there was no evidence he engaged in any of the
activities alleged in said paragraph . The record supports the motion and the motion is
granted
4 The Trial Examiner on his own motion, will order the record herein corrected as
follows :
Page 696, line 13, the word "not" should be inserted after the words "I am" ;
page 1173, line 18, the word "not" should be inserted after the word "am."
5 The Elmsford plant is also involved in this proceeding.
FOTOCHROME, INC. 1021
In each instance of consolidation and merger, Fotochrome, Inc. assumed 6
the collective bargaining agreements then outstanding between Local 249,and
the respective merged company.- These agreements covered the period May 1,
1960 to April 30, 1962, and their aggregate effect, after consolidation and merger,
applied to the Fotochrome, Inc., employees working at its Bronx, New York
and Elmsford, New York plants, including those on the payroll of Norlin Color
Corporation, a wholly owned subsidiary.
Since the time of Fotochrome, Inc. 's incorporation and expansion until on
or about May 28, 1962, said company has afforded recognition to Local 249 as
the exclusive collective bargaining representative of its employees in the unit
described in paragraph 8 of the consolidated Complaint, as amended.
The parties are in dispute as to whether all supervisors within the meaning
of the Act are in the unit.
Since on or about May 1, 1962, and continuing to on or about May 28, 1962,
Fotochrome, Inc. bargained collectively with Local 249 as the collective bar-
gaining representative of the aforementioned employees.
Edward Wisotsky, secretary-treasurer and former business agent of Local 249,
testified that he had serviced the contracts between Fotochrome, including its prede-
cessor corporations,7 and Local 249 for the past 5 years. Collective bargaining in
the industry in the New York City area followed a pattern under which a contract
was negotiated between the Photo Finishers Association, a multiemployer group,
and Local 249. When agreement had been reached the employees of the nonmem-
ber employers would be called to a meeting to ratify the terms of the multiemployer
contract. After ratification 8 riders to the overall agreement would be signed with
the nonmember employers adopting the agreement. Fotochrome was not a member
of the Association.
There is serious dispute between Fotochrome and Local 249 with respect to the
adoption of the 1960 contract, which expired April 30, 1962. Local 249 claims
that Nadaline signed the usual rider on behalf of Fotochrome adopting the contract
in tolo. Nadaline claims that he never signed the rider but that he and Wisotsky
initialed a copy of the printed contract in the margin adjoining the shift-differential
clause (article V-3-b) which was stricken by drawing pen lines across it. Respond-
ent asserts that this document constituted the only contract between Fotochrome and
Local 249 during this period. General Counsel stated at the hearing that Local
249's only signed copy of the rider had been delivered to the Regional Office and had
been lost .9 (There was no sworn testimony on this point.) Respondent, consistent
with its claim that it had never signed the rider, stated it could not produce a signed
copy. Respondent did produce two copies of the printed contract both of which
contained handwritten initials "E. W." and "F. N. Jr." in the margin next to the
differential clause. Local 249 claims that the initials "E. W." purporting to be the
initials of Edward Wisotsky are a forgery. Both Wisotsky and Nadaline testified
under oath 10 in support of the opposing contentions as to the genuineness of the
initials so a strong inference of perjury is created before the determinative issues
are reached.
2. Events prior to May 28
Wisotsky testified that he had discussions with Nadaline during February 1962,
in which Nadaline inquired about negotiations between Local 249 and the Associa-
tion respecting a new contract and told Wisotsky he would adopt any agreement
reached between Local 249 and the Association. On May 7, Dorothy Cohen, Foto-
chrome's bookkeeper,li called Local 249 and told "them" that Nadaline had heard
6 The Respondent does not agree that it assumed the shift-differential clause in any con-
tract adopted by it.
7 Unless it becomes necessary to make distinction reference to Fotochrome will include
all its predecessor corporations. Approximately 11 corporations merged into Fotochrome,
incorporated June 6, 1960.
8 Wisotsky could not recall that these employees ever refused to ratify the areawide
agreement.
6 General Counsel introduced an unsigned copy of the 1960 Association agreement as
his exhibit No. 2 and an unsigned copy of the rider as his exhibit No. 2-a. Respondent
introduced the initialed agreements as Respondent's Exhibits Nos. 30-a and b.
io Nadaline testified that Wisotsky initialed the documents in his presence.
n The record indicates that direct telephone dealings between Local 249 and Fotochrome
were conducted with Dorothy Cohen.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a new contract had been signed and wanted to know the wage rates so he could
put them into effect at Fotochrome immediately to avoid the problem of retroactive
pay. Wisotsky told Cohen the new contract called for $4.50 (increase) the first
year, $2.50 the second year with a 38-hour week, and $2 the third year with a 35-
hour week.12 Cohen asked if there was any objection to putting the wage increases
into effect (there was none) and Wisotsky told her there would be a meeting of the
employees of the independent shops to ratify the contract, after which Nadaline could
sign it. Fotochrome put the wage increases into effect as of May 1, but granted
$5 for the first year and $2 for the second to avoid carrying 50-cent balances on
its payroll. Certain employees who were already being paid in excess of the contract
scale did not receive this increase which otherwise was across-the-board.
On May 22 the meeting of employees of independent employers was held with
about 35 employees of Fotochrome attending and the contract was ratified.
On May 23 Nadaline called Wisotsky and a meeting between them was held the
next day, May 24. Wisotsky did not have a copy of the new Association contract
with him (they had not yet been printed) but asked Nadaline to sign a rider.
According to Wisotsky, Nadaline raised objections but refused to be specific in their
discussion and it ended with Nadaline asking for a meeting with Mack Young,
president of Local 249, on May 29.13 (According to Wisotsky this meeting was
postponed at Nadaline's request until May 29; according to Nadaline it was originally
set for May 29.)
3. May 28-the advent of Local 422 and the strike
a. At Elmsford
May 28 was a crucial day for both Fotochrome and Local 249. Many of the
events on that day occurred simultaneously but the effort will be made to develop
them chronologically.
Mary Giannantonio, employed at the Elmsford plant, testified that when she
reported to work on that day about 10 a.m. a group of employees were "saying there
was going to be a strike." One of the drivers from the Bronx plant had told an
employee at Elmsford named Dorothy (or Dolores) Longo on the preceding Friday
(May 25) that a strike was about to be called at Fotochrome. When Giannantonio
heard this she asked the Local 249 shop steward, Dorothy Boufford, to call 249
and ask if there would be a strike. Boufford made the call and reported that 249
had told her there would be no strike. Nevertheless the rumor persisted on Monday
morning and the employees asked Silvio Ricciardi, the plant manager, for informa-
tion. Giannantonio asked him if there was a contract in effect between Fotochrome
and 249 and Ricciardi told her it had expired. Giannantonio, who had previously
been shop steward for Local 422 at a company identified at Masters, told the girls
(or they told her) they did not want a strike 14 and Giannantonio then called Local
422 and left word for Jinnie Matienzo, president of 422, to come to Elmsford.
About the time Giannantonio called Local 422, Ricciardi called Nadaline in 'the
Bronx and told him the girls at Elmsford did not want a strike and were talking of
joining another union. Nadaline told him to get the girls back to work and keep
them working.
Matienzo arrived at Elmsford shortly after 2 p.m. When Giannantonio saw him
she went out to meet him and then went back and told the girls he was there and
that they should take their coffee break then and go out and talk to him. Matienzo
had authorization cards with him and after listening to the complaints of the girls
he distributed the cards which were signed by the girls at that time. Matienzo
12 The new contract was for 3 years, expiring May 1, 1965.
13 Wisotsky stated he did not understand Nadaline's objections. Nadaline related several
areas of dispute which had arisen during the term of the last contract* an alleged pay cut
for John Consolino, a refusal to permit girls to attend a union meeting, an alleged pay cut
for John Whelan, a question concerning the proper classification of another girl, and a
lengthy discussion of the shift differential. The shift differential presented a complicated
issue at Fotochrome since all departments did not start their shifts at the same time and
the starting time of any shift might vary according to the day of the week. Respondent
contended throughout the hearing that it had never paid it and was unwilling to sign a
new agreement until this issue was settled. This issue, not particularly germane to the
issue raised by the pleadings, was litigated at great length during the hearing. Since it
involved the credibility of the chief witnesses the testimony was received to the detriment
of the record.
14 Ricciardi testified that Giannantonio took over the meeting from him.
FOTOCHROME, INC. 1023
estimated the number of signed cards as 15 to 20 . He gave more unsigned cards
to Giannantonio for the night shift.15 Giannantonio told him that there was another
Fotochrome plant in the Bronx and Matienzo called his office and directed it to
have his two Spanish -speaking 'delegates meet him at the Bronx plant. Matienzo
left the Elmsford plant and en route to the Bronx stopped , called his office and
dictated a telegram demanding recognition for Local 422 at Elmsford.16
Ricciardi testified that he saw Matienzo outside the plant talking to "a couple of
girls" and that when he was informed that Matienzo represented another union he
told the girls to take their coffee break and go out and listen to him. When the
girls returned Ricciardi went out and Matienzo asked him if he was the boss.
Ricciardi told him he worked for the Company but that he was not covered by the
pension plan nor by hospitalization and asked for a card . Matienzo gave him a
card and he returned to the plant and signed it. (There is no testimony as to what
became of this card.)
b. At the Bronx plant
When Matienzo arrived at the Bronx plant his two organizers were already there
and told him they had obtained about 60 signed cards. Matienzo testified that he
remained at the Bronx plant for about 2 to 21/z hours, that about 70 to 75 signed
cards were obtained , and that he ordered another telegram sent to the Bronx plant
demanding recognition for Local 422.17
Lloyd McFetridge , shop steward for Local 249 at the Bronx, testified that he
arrived at the plant about noon and about 2:30 p . m. two employees , Jean Wilson
and Arnoldo Rodrigues , told him there was a crowd across the street and that men
were signing up the employees for another union . McFetridge went out and found
"four or five" men handing out circulars and talking to Fotochrome employees.
McFetridge asked them what they were doing and was told they were signing up
the shop . McFetridge told them the shop was already represented by a union.
McFetridge was given a card which he did not sign and he returned to the plant.
He testified that he did not see any employee of Fotochrome take a card during the
brief time he was in the street. He did see Nick Mascara , night foreman at Foto-
chrome, who asked him why he did not sign and told him that he (Mascara), John
Parragio , and the other supervisors had signed because they could not get benefits
from Local 249 and were joining 422 so they could get them.
McFetridge went back to the plant and called Mack Young at Local 249 and
told him another union was signing the employees . Young told him to go back
and tell the people to sit tight until he could investigate and issue some orders to
McFetridge . McFetridge was circulating through the plant talking to the employees
when Parragio, in charge of the black and white department , came to him and told
him he had a telephone call. The call was from Young , who asked him how
things were going and told him , "Watch yourself , and turn around if you can't do
anything else, call these people and tell them to go out on strike ." Young also told
him to go to stationary stores, get cards, and print on them "Local 249 is on strike
against Fotochrome, Inc." When he hung up Nadaline walked up to him and told
him he had four witnesses who had heard Young tell him to pull the shop out on
strike. McFetridge said he had to obey orders and started to leave the room.
Nadaline came up on one side of him and Parragio on the other so that he could
not proceed . McFetridge told Nadaline that if he could not pull ,the shop he would
walk out alone and call the Union . McFetridge was escorted to the street by
Nadaline and Parragio where he again called 249 and was told by Young to wait
for Wisotsky , who was on his way with picket signs. When Wisotsky arrived about
5 p.m. some 25 or 30 employees had left the plant and a picket line was established
with 6 pickets.
The testimony of Wisotsky and Young is generally corroborative of McFetridge.
Thus, Wisotsky testified that he received a call in Newark from Young about 3:30
or 4 p .m. and was told to get to the Fotochrome plant immediately "because all
hell had broken loose and there had been another union there signing up the
'5 Giannantonto testified that she gave some of these unsigned cards to the office girl
with instructions to give them to the next driver from the Bronx for delivery to the shop
steward ( of Local 249) at, the Bronx plant . The others she kept for the night-shift
employees , leaving them overnight either on or in a desk in Ricciardi 's office She re-
ported early the next morning and testified that she signed.the employees on the night
shift.
1e Respondent 's Exhibit No. 37
17 Respondent 's Exhibit No. 38.
744-670-65-vol . 146-66
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people." Wisotsky went to the Bronx and met McFetridge who told him Young
had told him to call a strike.18 Employees (estimated at 30 to 40 by Wisotsky)
were in the street waiting for the picket signs which Wisotsky had in his car.
Wisotsky mgt Nadaline in the street where Nadaline told him he had called Young
who was coming up 19 and Nadaline asked Wisotsky to let employees on the 6 p.m.
shift go to work. Wisotsky refused this request 20 When Young arrived all three
went into Nadaline's office to discuss the situation.
The ensuing discussion lasted about 3 hours and there is sharp disagreement in
some of the testimony. There was discussion of Local 422, its efforts to organize
the employees and of the responsibility for bringing it in. Nadaline alleged Wisotsky
had provoked the situation by threatening a strike the employees did not want and
Young claimed Nadaline had brought the Union in and could get it out. Young
suggested that the entire problem could be solved if Nadaline would sign the rider
to the Association contract. Nadaline refused on the ground he had received
the telegram from Local 422 demanding recognition at Elmford 21 and could not
under those circumstances sign with 249. Young then suggested, according to
Nadaline (and he is not contradicted on the record), that the parties sign and predate
the agreement to May 24, which Nadaline refused to do. Both Wisotsky and Young
testified that Nadaline left the room from time to time to make telephone calls and
shat at one time he returned and told them they could probably "get rid of these
other people for $6,000." Young refused to put up the money and suggested that
whoever brought Local 422 into the situation give it the $6,000. Nadaline denied
suggesting a payment of $6,000 and denied that such a sum was mentioned during
the meeting. He did testify that Young told him he (Young) knew the "people"
and could resolve the problem 22 There is also direct conflict relating to Wisotsky.
Both Young and Wisotsky testified that Nadaline was willing to sign the rider if
Wisotsky was kept out of the plant 23 Nadaline denied this and stated that Young
told him, in obscene language, that Wisotsky had done a poor job at Fotochrome and
would not service the plant in the future. This, in turn, was denied by Young. The
meeting terminated without agreement on a contract and the next day petitions for
elections at both the Elmsford and Bronx plants were filed with the Board by Local
422.24 The next day, May 29, the Bronx plant was shut down by Nadaline at 2 p.m.
Picketing by Local 249 continued to and including the date of the hearing.
A picket line was established by Local 422 and continued for about 6 weeks, the
signs stating that Local 422 was not on strike.25 Local 810 of the Teamsters also
picketed the Bronx plant for a shorter period. At Elmsford the picket line was dis-
continued shortly after establishment when the police refused to permit picketing
on plant property (the night crew struck at Elsmford on June 1 but returned to work
on June 2 at Ricciardi's request).
After the meeting between Nadaline and Wisotsky and Young on May 28 no
further bargaining meetings were requested by either party and none were held.
4. The supervisory issue and alleged assistance to Local 422
The complaint alleged and the answer denied that the following, employed by
Fotochrome, were supervisors within the meaning of Section 2(11) of the Act:
18 Young, in his testimony, corroborated in substance the testimony respecting telephone
calls between himself and McFetridge and Wisotsky
19 This call was corroborated by Young who testified that Nadaline told h im there was
trouble at the plant and asked Young to come up and straighten it out.
20 Wisotsky testified that his pretrial affidavit was accurate and that when he first met
Nadaline at the plant on May 28 Nadaline asked him what was going on and Wisotsky
told him the people were on strike. Nadaline then told Wisotsky that she had told the
employees not to sign with another union and Wisotsky answered that his foremen had
told the employees to sign with Local 422.
21 The telegram demanding recognition at the Bronx was received by Nadaline during
the meeting. -
22 Young did later meet with Horowitz , a representative of Local 422 , but did not reach
agreement with him.
23 The General Counsel does not assert that this alleged condition constituted a violation
of Section 8(a) (5) and in his concluding argument the General Counsel, in response to a
specific question , stated he was not contending that anything that took place at this
meeting constituted a violation of that section.
24 Respondent's Exhibits Nos. 40-a and 40-b
25 Charging Party's Exhibits Nos. 4-a and 4-b.
FOTOCHROME, INC. 1025
Alfred Canning, George Kurtz, John Parragio, Angelo Patrissi,26 Silvio Ricciardi,
.and Edith Wilson. Contrary. to the contention of the Respondent, I find that all
exercised sufficient authority to meet the standards imposed by that section.
Thus, Alfred Canning testified that he was in charge of four employees who con-
stituted the shipping department at the Bronx plant. He received $175 per week and
was directly responsible to Frank Nadaline, to Kaplan, controller, and Joseph Pittio,
vice president. Canning gave the orders to the employees in shipping and was re-
sponsible for the operations of the department. When work was slack he would
recommend a reduction and would suggest the employees to be laid off. When work
increased he would ask for additional help. Canning testified that he had the
authority to discipline and reprimand employees. Unlike the others in the depart-
ment he had no timecard and received no overtime.
George Kurtz was in charge of the color reversal department where, according to
.Manuel Fonseca who worked there, five persons were employed. Fonseca testified
that when he was hired he was taken to Kurtz' office by Vice President Joseph Pittio
where he was interviewed by Kurtz before he was employed. Fonseca further testi-
fied that on at least two occasions he had been told by Kurtz to go to other depart-
ments to help them out; that whenever he was absent, left early, or expected to be
late he informed Kurtz; that Kurtz laid off employees when work was slack; and
that he had been "chewed out" by Kurtz on occasion. Hector Nieves testified that
he had been employed as a processor but that when extra help had been needed in
the enlarging department Kurtz tried him out and kept him. Kurtz gave him his
orders and assigned him his work and, like Fonseca, he cleared absences and tardiness
with Kurtz. Kurtz was not called as a witness.
John Parragio was in charge of the black and white department and received $150
per week. Approximately 12 to 13 persons were employed in black and white,
including those in engraving. Lloyd McFetridge, employed in engraving, testified
that he received his orders from Parragio, that Parragio gave orders to the printers
and film processors. Herrick, an enlarger , testified that he received his orders from
Parragio and that he could recall that Parragio had laid off a printer by the name
of Elizabeth Hauser and an enlarger by the name of Helma Grunowski.
Angelo Patrissi testified that he was in charge of the second floor and received
$175 per week. When new employees were hired Patrissi would watch them for
2 or 3 weeks to determine if they were satisfactory. When a layoff was necessary
Patrissi determined the number to be laid off; selection was by seniority. Virgima
Ortiz, Anna Colon, Kathleen Gibson, and Hector Nieves testified they were hired
by Patrissi and the officers of the corporation and Patrissi had an assistant, Edith
Wilson, to help him run the floor.
Silvio Ricciardi was plant manager of the Elmsford plant where he was in full
charge, reporting only to Kaplan and Pittio at the Bronx. The contention that he
was not a supervisor within the meaning of the Act is too absurd to warrant dis-
cussion. He operated the plant and did both the hiring and firing.
Edith Wilson, testified that she was second in charge of the girls on the second
floor who were under the general supervision of Angelo Patrissi. She gave the
girls their work and told them how it should be done and received $90 per week.
Wilson was in charge when Patrissi was absent and the employees on the second
floor testified that they took orders from both Patrissi and Wilson. Although Wilson
worked with the other girls I find that she had and exercised the authority responsibly
to direct them and qualified as a supervisor under Section 2 (11) of the Act.
John Parragio, Alfred Canning, Silvio Ricciardi, and Edith Wilson all admitted
signing cards designating Local 422 as bargaining representative for the employees
at Fotochrome. All testified that they signed because of the benefits offered, par-
ticularly the pension plan, although none of them made any investigation of the
benefits 27 All, in fact, signed after only a few minutes' conversation with the
organizers of 422, organizers whom they had never seen before.
There is substantial testimony respecting assistance to Local 422 on the part of
these supervisors.
20 The motion to strike Patrissi 's name from the complaint has been granted, infra
Discussion of his status is required , however, since he is involved in an issue unrelated
to paragraph 14.
27Parragio testified that he would have signed with any union which would have in-
cluded him in its pension plan. He had been expelled from Local 249 because of his
supervisory status and was resentful of the fact that other persons whom he considered
supervisors had been retained in membership.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seymour Herrick, an enlarger employed at Fotochrome,28 testified that about
2 p.m. on May 28 John Parragio came to the enlarging room and asked to seer
him for a minute. Parragio look him across the street where the Local 422
organizers were distributing cards and told Herrick to take a card and sign it. One
of the organizers handed Herrick a card and Herrick asked him about the union and
the benefits it offered. Herrick told the organizer he received the same benefits
from his union (Local 249). He did not sign and returned to work. Later in the
afternoon Parragio again called Herrick outside where a man who identified himself
as an executive of Local 422 again explained the benefits offered by that union.
Again Herrick refused to sign and returned to work. About 5:30 p.m. that day
Herrick went on strike when Wisotsky told the employees the plant was on strike.
Parragio denied asking Herrick to sign a card but admitted telling him what was
"going on" outside and accompanying Herrick across the street. Parragio explained
this by saying he wanted to see if the organizers would make Herrick the same-
offer of benefits they had made him.
On cross-examination Herrick testified that he was called into Nadaline's office
about 2:30 p.m. on the 28th. (This would be between Herrick's first and second
departures from the plant.) Parragio was present in the office and Mrs. Nadaline,
Alfred Canning, and Joe Davis were present at least part of the time. Nadaline
told Herrick he heard there was another union in the plant and that Chrome Color
(the Elmsford plant) had signed up 100 percent. He asked Parragio if he knew
about the other union and Parragio said he did. Nadaline wanted to know why
Parragio had not told him about it. Nadaline then told Parragio to go out and
tell everybody they did not have to joint the other union and that "we will have an
election to find out which union they want." 28
Herrick was a credible witness and I accept his testimony.
Dorothy Lambert, employed in the packing department, testified that Alfred
Canning came to her department after the afternoon coffee break on May 28 and
asked if any of them had gone out and signed with the other union . Frances Rizza,
another employee, and Elmer Williams, department head, said they had and Lambert
told him she had not. Canning told them Local 422 had better benefits and when
Lambert asked what would happen to the money the employees had paid into Local
249 he said they would not lose it and that they would not have to pay any initiation
fee with 422. Canning left and returned in a few minutes and again asked the
employees if they had signed . Lambert again said she had not and Canning asked
them what they were waiting for. Lambert went out and signed as did Hector
Morales, Frances Rizzo, and Joan Mandracchia. Lambert testified that as a
result of Canning's second visit "it seemed like it was in order so we went to sign."
Frances Rizzo testified that on Canning's first visit to the packing department
she told him she had signed; on the second visit she told him she had not signed.
On the second visit Canning said nothing to her but Rizzo corroborated Lambert's
testimony that Canning, on his second visit, asked them what they were waiting for.
Later Rizzo, through a window, saw Angelo Patrissi sign a card so she went out and
signed. Joan Mandracchia, another employee in the department, also testified that
Canning made two visits to the department and that on the second visit he asked
the girls what they were waiting for. She then went out and signed with Local 422.
28Respondent contends Herrick was a supervisor. Herrick testified that he received
his orders from John Parragro, that no one was actually in charge of the enlarging depart-
ment, but that when he came to work he took the orders for the enlarging department,
sorted them, and put the work at the machines. There was no evidence, apart from this,
that he directed the other enlargers in the performance of their work or that the assign-
ment required the exercise of independent judgment. I do not find Herrick a supervisor
29 Nadaline's testimony on this reads:
I said I showed my displeasure by saying that he 1Parragio] wanted to have his
cake and eat it. I then wanted to proceed to what extent this has gone on, so I
don't recall whether I called him, but Alf Canning did come in. I also realized, knew
that he didn't-he didn't tell me whether he joined or not. Seymour Herrick said he
was outside, told me he talked to the union and was undecided I told him not to
join. He, since he didn't join. I also told him to go outside and tell as many people
as possible not to join I walked into the printing room and told the following people,
Eleanor Meade, Elizabeth Hauser, Jean Wilson and Miss Grasse, I said to them in
there, there was a union outside. I would appreciate it if they didn't make any move
I was in the process of negotiating a contract , and I think what is happening is
terrible.
FOTOCHROME, INC. - 1027
Canning testified that he signed with , Local 422 because it had a pension and
retirement plan and-that after he had signed some of the employees in his department
asked him about Local -422 and he told them to go out ands :listen for themselves-
that Local 249 had not given him anything and Local 422 would.
Manuel Fonseca testified that he was employed in the color reversal department
under the supervision of George Kurtz. He was working at 3 p .m. on May 28
when a female employee asked him if he knew anything about the new union.
Fonseca "peeked" out the door leading to the street and saw Kurtz and another
employee named Hector Nieves. Kurtz told him there was a new union across
the street trying to sign up the people and that it was a better union than the one
he had . Kurtz told him to go across the street rand look into it. Fonseca went across
and talked to the organizers who told him he could retire at half pay after 20 years.
Fonseca asked to see a contract with another shop and was told they did not have
one with them but could produce one. Parragio was present and told Fonseca it
was all right to sign because he had just signed . Fonseca said he was not going to
sign until he had more information and asked more questions of the organizers.
Parragio called him a troublemaker and Fonseca left and returned to work but
not until after he had signed a card with Local 422. About half an hour later he
was summoned to Kurtz ' office where Kurtz and Nadaline were standing . Nadaline
asked him if anyone had threatened him regarding joining Local 422 and Fonseca
replied that no one could force him to join a union . That ended the conversation,
according to Fonseca.30
Hector Nieves, employed in the enlarging department , testified that about 2 p.m.
on May 28 George Kurtz called him on the intercom and asked him to come outside
to speak with him. Nieves went outside and Kurtz told him another union was
signing up the employees and that he thought it wise for Nieves to sign. Nieves
did not want to sign but Kurtz told him that the Company would know those who
did not join and it was the wise thing to do; that the Company would be forced
to close down if the new union was not brought in because the old union was not
providing enough new shops ( new accounts ). Kurtz showed him where the new
union was signing up the people and Nieves walked over and listened and returned
without signing. Kurtz again told him to sign-that the Company would know
about it-and Nieves recrossed the street and signed . As has been stated, Kurtz
was not a witness. I credit both Fonseca and Nieves respecting these conversations
with Kurtz.
Virginia Ortiz, employed as a twin checker , testified that about 3 p.m. Edith
Wilson sent two girls downstairs ; when they returned Wilson sent two others and
when they returned she told Ortiz and Judy Arnaiz to go down and see about joining
another union . They went down and saw the organizers across the street, went over
and were told about the benefits offered by Local 422, and were given cards. Ortiz
did not sign hers immediately because she wanted to know more about the Union
and after about half an hour Richie Sheehan , a mail clerk , came down and told them
Angelo Patrissi wanted them back, that they had been gone too long . Two other
employees drove up at this time and filled out their cards and Ortiz and Arnaiz
filled out theirs. According to Ortiz she did not give her card to the organizer, he
took it from her.
Kay L. Smith , another twin checker, testified that about 2:45 p .m. on May 28
Edith Wilson .told her and Terry Benson to go downstairs-that there were two men
from another union she wanted them to speak to . She and Benson went and the
two organizers told them the benefits Local 422 offered. She asked one of them
if Nadaline knew they were there and was told he did and that he wanted Local 422
and did not want Local 249. She and Benson signed cards . On their way back
into the plant Smith testified that they met Nadaline , who asked Benson if she and
Smith had signed. Benson told him they had and Nadaline made no comment.31
When they returned to the second floor Wilson asked them if they had signed and
they told her they had. Smith did not report to work May 29 , she joined the strike
called by 249.
20 Nadaline testified that he asked Fonseca if he had joined and when Fonseca told him
he had not he said , "Good ." He then told Manny [Fonseca] to go through the building
and tell everyone Fotochrome was in the process of negotiating Fonseca was - not recalled
to deny this specific admonition and, because it is consistent with other conduct on the
part of Nadaline , I credit it. ,
al Nadaline testified that he asked both Benson and Smith who had authorized them to
go downstairs and whether they had signed with Local 422. According to Nadaline neither
answered him, they walked by him and went upstairs. ,
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Edith Wilson denied sending the girls downstairs two at a time or asking any
girl to sign a card. She was specific in this denial with respect to Ortiz and Smith.
I credit the employees to the extent that they were sent downstairs in pairs to listen
to the organizers for Local 422.
Elmer Williams, in charge of the packing department at Fotochrome, testified
that on May-28 he was leaving Vice President Rosen's office when he met Alfred
Canning. Canning told him that the Union (Local 422) offered more benefits and
more money and said , "I am signing , why not you?" Williams then went across the-
street and signed. Later Canning came upstairs and asked Williams why he did not
let his (Williams' girls) go downstairs and sign. Canning asked the girls individually
if they had signed but Williams could not hear the responses . Williams was asked'
if he had signed and he said he had not because he did not want to influence the
girls. Canning came back later and again asked the girls to go down and sign.
Williams joined the strike on May 29.
Robert Mclsaac, employed as a printer at Elmsford, testified that he signed a
card designating Local 422 on either May 28 or 29. He worked the night shift and
when he reported for work on one of those dates Ricciardi gave him two authoriza-
tion cards for Local 422, telling him to fill out one and have John Driscoll, who,
worked with him, fill out the other.32 Later that evening Mclsaac signed the card'
and left it on Ricciardi's desk. In view of Ricciardi's equivocal testimony as to his
conversation with Mclsaac, I credit Mclsaac.33
Mclsaac further testified that he attended the Local 249 meeting on May 22 and'
then when he, Driscoll, and Charles Gore returned from the meeting at 12:30 a.m.,
Ricciardi and Schursky, night foreman, told them they should not have attended be-
cause it was a busy night. Mclsaac had previously asked Schursky's permission
and, while it had been granted , Schursky told him he should not go because it was
a busy night.
Teresa Brown and Edith Rumph testified that when they drove to work about
5:30 p.m. on May 28 they found a crowd outside the plant and were told a strike
had been called. They testified that Nadaline was in the crowd and told them they
could go to work if they wanted to-to go across the street and sign up with the
other union and go in to work. They went across the street and received cards and
did not sign them and did not go to work. Nadaline denied telling them to sign
with the other union . Chiefly because their testimony is inconsistent with all other
testimony respecting Nadaline's conduct on that day, I credit Nadaline.
5. Promises of benefit to return to work during strike
In support of the allegation in the complaint that Respondent offered benefits to,
its striking employees to induce them to abandon the strike, the General Counsel'
offered the testimony of four employees.
John Whelan, employed as a takeoff man at the Bronx plant, testified that during
the first week in June he was standing across the street from Fotochrome with John
Morales when Nadaline crossed the street, engaged him in conversation, and told
him that if he would return to work he (Nadaline) would give him a raise. Whelan
said he did not want to go back. Morales was not called as a corroborative witness
and the offer was denied by Nadaline. I credit Nadaline.
Francesca Rizzo was employed as a packer at Fotochrome and went on strike.
Rizzo testified , that 2 or 3 days after the strike began she was talking with Joan
Mandracchia in front of the plant. Nadaline, Roland Corbone, and Joe Contisano
were in the immediate area. Nadaline told Rizzo he did not know her and she
told him that he should since she had been working for him for 2 years and then,
according to Rizzo, Nadaline told her that if she would go back he would guarantee
her job. Rizzo said she would not go back unless everybody went back. Corbone
then told her not to care about anybody else but to come back and work in the black
and white department for him. Although Mandracchia was called as a witness by
the General Counsel she was not asked to corroborate this offer to Rizzo. Nadaline
admitted that he might have told her that if she came back he would guarantee
a job.
32Driscoll testified that McIsaac did give him a card and that he signed it and left
it on Ricciardi 's desk. Driscoll, together with another employee at Elmsford named
• Cornier , went on strike on June 1. The entire night crew struck on June 1 according to
Driscoll but "drifted" back to work on Saturday, June 2, when Ricciardi asked them to
'go to work.
33 Ricciardi in his testimony stated , ". . . Wait a minute, I may have mentioned to him
at the time when he was talking to me as to whether he had signed a card or not."
FOTOCHROME, INC. 1029
Virginia Ortiz testified that she went into the plant on June 1 to collect her pay-
check and that Patrissi saw her and asked her to go upstairs and go to work. Ortiz
refused, signed her timecard, and left. On the same day she and Smith were picket-
ing when Nadaline who did not know her and had never spoken to her came out
and told her if she had enough guts to go inside and learn to print he would pay her
$100 a week. Ortiz told him he could not bribe her. (Ortiz had been making $65
per week.) 34
When Nadaline was examined as to this offer he appears to have been confused
for the record (which is not too clear on this) indicates that he denied offering Rizzo
a job as printer. -
In view of the corroborative testimony of Smith and the failure of the record to
indicate an unequivocal denial on the part of Nadaline I credit Ortiz, although the
unusual nature of the offer makes it suspect.
Mary Franchini testified that she had been on maternity leave from Fotochrome
prior to the strike and that on May 25 she called Patrissi and asked to return to work.
She was told to report on Monday, May 28. She asked if, she could be shifted from
nightwork to daywork and was told there were no openings for her on the day shift.
On Monday when she reported for work on the night shift she saw the employees in
the street and was told there was a strike. The next day Patrissi called her and said
that he could give her daywork but Franchini said she could not accept on account of
the strike. She remained on strike.
These conversations are admitted in substance by Patrissi, who admitted calling
a number of employees and asking them to return to work during the strike. The
complaint does not allege and the General Counsel did not contend that individual
solicitation was unlawful, the contention was advanced that solicitation was unlawful
only when accompanied by promise of benefits.
There is no allegation in the complaint that Respondent threatened its employees
with reprisal if they did not abandon the strike. I therefore find it unnecessary to
pass upon the testimony of Anna Colon that Patrissi called her during the strike,
asked her why she was not working, told her she would lose her job, and that he
would train another girl to take her place. This is likewise true of the testimony
of Robert Mcisaac and John Driscoll, employed at Elmsford, in which they alleged
Ricciardi told them that if the employees gained anything from the strike Respond-
ent could make it so bad for them they would quit.
6. The attack on Wisotsky and the threat to Young
Wisotsky testified that on July 17 he was talking to two strikers at a distance of
200 to 300 feet from the plant when two patrol cars stopped before the plant and the
policemen went into the plant. Wisotsky then saw a policeman tell the pickets to
stop picketing and move to the other side of the street. Wisotsky went to see what
was going on and was told by the pickets that the policemen had mentioned "some-
thing about a bomb in the plant" and told them to cross the street. Wisotsky walked
over to the patrolman in front of the plant, who told him there was "something of a
bomb scare" and that he had been ordered to keep the street clear. Wisotsky wanted
to know why the people in the plant were still working while the pickets could not
picket and waited to see the sergeant. The sergeant came out (Wisotsky was in the
street close to the curb) with Nadaline a little behind him. According to Wisotsky,
Nadaline came toward him and said, "What are you trying to do, you son-of-a-bitch,
blow my plant to pieces?" Wisotsky said he did not want an argument and then
asked the sergeant when he could get his pickets back. The sergeant said that when
the investigation of the bomb scare was finished he would let Wisotsky know and
Wisotsky turned away. The next thing he knew he woke up in the hospital 2 days
later.
Kathleen Gibson; employed at the Bronx, testified that she was leaving the plant
area about 3 p.m. on July 17 with a friend when she noticed there were no pickets
in front of the plant but there was a crowd across the street. She asked why there
were no pickets and was told there was a bomb scare. Wisotsky was in the crowd
and told them (they were strikers) that he was going to find out what was going on.
He crossed the street and the next thing Gibson noticed Wisotsky was talking to
Nadaline. Gibson saw Wisotsky turn to recross the street when Nadaline turned
and punched him in the lower part of the face and Wisotsky fell to the street.
Nadaline made a motion to hit him again when he was seized by two policemen and
he went back into the plant. An emergency car came and administered oxygen to
"This testimony was corroborated by Smith as to the offer to train Ortiz as a printer
and as to Ortiz' reply.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wisotsky and later an ambulance took him away. Gibson described the conversa-
tion between Nadaline and Wisotsky as appearing to be a casual one. She described
the position of the parties when Nadaline struck as being at an angle. Wisotsky
was partially turned away from Nadaline when Nadaline turned and struck the blow.
Kay Smith testified that she was walking the picket line on the afternoon of
July 17 when a policeman told her to move to the other side of the street. When
she protested she was told there was a bomb scare and she moved. When she
reached the other side of the street she told the strikers to get Wisotsky and she
told him what had happened. Wisotsky crossed the street (to the plant side) to
talk to the policeman when Nadaline came out. According to Smith the three were
in a semicircle, talking. Smith was watching the window of the plant where em-
ployees were, standing looking out. She heard a scream and turned and saw Wisotsky
fall to the ground. Smith stated that she saw Nadaline raise his fist as if to strike
Wisotsky again while he was on the ground and then two policemen grabbed him
and pinned his arms. The officers took Nadaline into the building and about 10
minutes later the emergency squad removed Wisotsky. Anna Colon also witnessed
the assault on Wisotsky . She stated she was waiting to go on picket duty at 3 p.m.
on July 17. At this time the pickets were leaving the side of the street in front
of Fotochrome and a policeman was telling them to leave. Wisotsky came up and
crossed the street to find out why the pickets were moved. About the same time
Nadaline came out of the plant with another policeman and for a minute or two
Nadaline and Wisotsky were talking face to face. According to Colon, Wisotsky
turned away to recross the street when Nadaline punched him in the face with his
fist and Wisotsky fell to the street. Nadaline made a motion as if to strike him again
and was led away by two policemen. Colon testified that at the time he was
struck Wisotsky had his back turned to Nadaline but that the blow struck him in
the face-a blow described by the witness with a circular motion of her arm.
The testimony of Victor Delmotte, also a striker, corroborates the testimony of
these witnesses for the General Counsel.
Nadaline testified that about 3:30 p.m. on the 17th be was summoned by his
telephone operator who told him she had just received a telephone call and had been
told that there was a bomb in the building which would go off at 4:30. There was
a police officer on the premises and either Nadaline or the operator informed him
of the message and he called the bomb squad. After the squad arrived and made a
check of the building Nadaline went into the street where Wisotsky was declaring the
bomb scare was a fake. Nadaline admitted he was "annoyed," which may have
been a gross misunderstatement , and that he read a list of incidents involving
property damage to cars belonging to nonstriking employees , damages to the plant
and company property, and other instances of violence 35 to Wisotsky. According
to Nadalme, Wisotsky told him, "We know how to do those things and get away
with it" whereupon Nadaline called him "a son-of-a-bitch." Wisotsky then shoved
Nadaline and told him to get into the building. Nadaline retaliated with a punch
which struck Wisotsky on his right shoulder and Wisotsky fell into the street.
Nadaline was then led back into the building by a police officer.36
Frank Correale, a police officer of the city of New York, witnessed the incident
and testified as follows:
Q. Would you tell us what you saw?
A. Mr. Wisotsky, a man from the union , I guess, come walking across
Washington Avenue-
Q. Toward the plant?
A. Toward the plant. Mr. Nadaline was at the time standing on the side-
walk in front of the plant. He walked up to the curb, standing on the side-
walk. The other gentleman was standing in the street facing-
Q. That's Mr. Wisotsky, the other gentleman, he was in the street?
A. Yes [continuing]. For a few minutes they were in conversation. Talk-
ing to one another there, and all of a sudden, one split second's time, Mr.
Wisotsky lifted his hands up, shoved Mr. Nadaline; Mr. Nadaline then struck
back, hit Mr. Wisotsky, and Mr. Wisotsky fell down to the pavement.
35 Testimony of Nadaline to these instances of damage to property was received although
in no case could It be attributed to the Charging Party or its members The testimony was
admitted to establish a background of provocation for the assault on Wisotsky.
Nadaline was charged with felonious assault but the grand jury of Bronx County
Tailed to indict and no conviction of any crime was ever obtained against Nadaline as a
result of this incident.
FOTOCHROME, INC. 1031
Another police officer took Nadaline and walked him into the building.
Correale was the only completely disinterested witness to this assault. I accept
his testimony as essentially correct, particularly his testimony that Wisotsky shoved
Nadalme before he was struck.
The complaint alleges that on June 17, Respondent, by John Parragio, threatened
to inflict bodily harm upon Mack Young, president of Local 249. Young testified
that he had talked on the telephone to Parragio "a hundred times or more" and
knew his voice. About 3:45 p.m. on the 17th Young received a call from a party
identified to the operator as "a friend." When Young took the call the party
calling, identified by Young as Parragio, said, "Wisotsky just got his and you're
next." 37 Before Young could say anything the caller hung up. No testimony was
offered that any employee of Fotochrome heard or learned of this call. The call
and the threat were denied by Parragio.
7. Surveillance
The General Counsel alleges that Respondent, on May 28, kept under surveillance
the activities of representatives of Local. 249. This allegation was based upon a
single telephone call made on that day by Mack Young to McFetridge in which
Young told McFetridge to call the strike. (More fully related in McFetridge's
testimony, infra.) The call went through the plant switchboard and was monitored
by Stanley Salomon, the operator, who asked Nadaline if he wanted to listen.
Nadaline said he did not and told Salomon to pull The plug on the call. Either
Salomon informed Nadaline of the substance of the message or Nadaline heard
enough to gain knowledge of its substance.38 It was following this that Nadaline
and Parragio accosted McFetridge and demanded to know what he was doing. There
is no evidence that Nadaline had ordered the call monitored nor that he had any
suspicion that such a call would be made. The monitoring and the reporting of the
call were voluntary acts on the part of Salomon.
8. The application to return to work
On September 17 Local 249 sent by registered mail identical letters to the Elms-
ford and Bronx plants of Fotochrome letters of unconditional offer to return to work
on behalf of the strikers. (General Counsel's Exhibits Nos. 16-a and 16-b.)
In view of this offer I find it unnecessary to pass upon the individual offers made
by some of the strikers to Nadaline on September 20. I accept the offer of Septem-
ber 17 as including all strikers.
9. The appropriate unit
The consolidated complaint in this proceeding 39 described the appropriate unit as
follows:
All production and maintenance employees of Respondent, employed at its Bronx
and Elmsford, New York, plants, exclusive of office clerical employees, watchmen,
guards, and supervisors as defined in Section 2(11) of the Act.
At the hearing the General Counsel moved to amend his complaint to include
office clerical employees and the Respondent then moved to amend its answer to
deny that the unit, as amended, was appropriate. Both motions were granted. Since
there had been no prior certification by the National Labor Relations Board no
determination binding upon me had been made with respect to the unit.
The last contract 40 between the parties referred to the unit in these terms:
Article I. Section 1. The Association recognizes that the Union represents
a majority of all the employees employed by the Employer members of the
Association .
Article II. Section 1 D. The term "employee" or "worker" (used interchange-
ably herein) means all employees of an Employer, except executives, foremen,
private secretary and outside salesmen.
87 In his pretrial affidavit to a Board agent Young stated, "I believe the voice which,
uttered this threat to be that of John Paragglo [sic], a supervisor and close friend of
Frank Nadaline, Jr."
There is discrepancy, as there always is, between Nadaline's pretrial affidavit and his
testimony. From the affidavit it appears that Nadaline listened to a part of the con--
versatfon between McFetridge and Young before ordering Salomon to pull the plug.
General Counsel's Exhibit No. 1.
ao Respondent 's Exhibits Nos. 30-a and 30-b.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article II. Section 1 G. The term "private secretary" means that employee
whose work consists of handling correspondence and confidential matters of
the employer and who does no production work. One private secretary is per-
mitted in each shop of an Employer having fifteen or more employees and which
shop employed fifteen or more employees during the preceding year.
The above language does , I believe, clearly include all office clerical employees
except one private secretary in the bargaining unit. There is no dispute that office
clerical employees were the subject to the terms of prior contracts ( the last contract
provided for wages for office clerks, stock and order clerks, and mail clerks). In
view of the history of bargaining for a unit embracing office clerical employees I
find the unit proposed by the General Counsel appropriate.
The issues of this case , as I see them , are not concerned with eligibility problems
within the unit, problems which were litigated at some length by the parties. My
finding with respect to the supervisory status of those persons specifically named as
supervisors in the complaint was made because it appeared relevant to the 8(a)(2)
and, as to some , the 8 ( a) (1) allegations of the complaint.
B. Conclusions
1. Credibility
There is a multiplicity of testimony in this case from a multitude of witnesses (63)
and a disproportionate amount of that testimony has been devoted to credibility,
much of it on peripheral or irrelevant issues 41 This is a case in which, as the fore-
going statement of facts establishes, the record is replete with squarely contradictory
testimony on issues germane to decision. The Trial Examiner is, therefore, con-
fronted with the responsibility of making credibility findings between witnesses un-
known to him and with whose reputations for veracity he is unacquainted. No con-
scientious Trial Examiner can pretend to the omniscience required for such a task
but, in deference to the fiction that the trier of the facts can determine credibility
from the demeanor of the witnesses, the findings must be made.
Perjury has, unfortunately, become accepted as routine in Board hearings and re-
spect for the oath is marked by its absence. Some of the responsibility for this must
be fixed on the Board, for the conditions under which many hearings are held in-
evitably breed contempt for its proceedings. The hearing in this case was held in
the squalor and filth of the formal hearing rooms of the Regional Office which are
located in a loft building on West 57th Street.42 But such conditions are not endemic
to New York. Other Regional Directors, fixed with the obsession that the parties to
the proceeding have been immobilized and that only Trial Examiners have access
to transportation, insist on holding hearings at the situs of the dispute regardless of
the facilities and accommodations available. Hearings are all too frequently held
in rooms which would be disdained by the operators of a floating dice game and it
is small wonder that the witnesses view our proceedings with a minimal regard for
their gravity. It is true that the Board has established Regional Directors and
Regional Attorneys in spacious and luxurious offices in keeping with the dignity of
their position. The witnesses in Board proceedings, however, never see these offices;
they see the Board in environs which stultify its own processes and the witnesses
depreciate the proceedings accordingly.
This is not a case in which the credibility findings have been easy to reach and the
hazard of error cannot be ignored. The demeanor of the witnesses has not provided
the proverbial touchstone of credibility for, as to many of the witnesses, their
demeanor convinced me that they told the truth when it served their purpose and
deviated when it did not.
Since so much of the case resolves on credibility I think simple honesty requires
that the foregoing statement be made.
41Hundreds of pages of the record are directed to the contradiction between the testi-
mony of Nadaline and that of Wisotsky with reference to the execution of the 1960 con-
tract, including the exhaustive and exhausting testimony of two handwriting experts,
each of whom contradicted the other. All that could have been proved was that either
Nadaline or Wisotsky committed perjury, for neither the contract nor its differential clause
is dispositive of any issue in this proceeding. I now regard it as unnecessary to resolve
this particular credibility issue since it would do no more than resolve it on an issue not
pertinent to the case and I would be unwilling to accept the resolution as dispositive of
credibility between the two in their other testimony.
11 For a time conditions were so intolerable the hearing was transferred to hearing rooms
maintained by the New York State Labor Board.
FOTOCHROME, INC 1033
2. Violations of Section 8(a) (2)
I have found that Supervisors Parragio, Canning, Kurtz, Wilson, and Ricciardi
either urged their employees to listen to the organizers of Local 422 43 or to sign
with Local 422.44 All of these supervisors except Ricciardi were minor supervisors
in the sense that they performed some work themselves and directed only the em-
ployees in their respective departments. None was an officer of the Company and
none was responsible for company policy. While Ricciardi was plant manager at
Elmsford and in complete charge of operations there is no evidence that he partici-
pated in company policy. Apart from Nadaline there is no evidence that any officer
of Fotochrome took any part in the activities of May 28.
As to the position of Nadaline vis-a-vis Local 422 there is sharp dispute. The
Charging Party urges with considerable force that a conspiracy existed between
Nadaline and Local 422 to depose Local 249 and install 422 as bargaining repre-
sentative. In making this allegation the Charging Party contends that the dis-
crepancies in time establish that Local 422 knew of the existence of the Bronx plant
before Matienzo went to Elmsford, thus discrediting Matienzo's explicit testimony
that he did not have such knowledge.45
Giannantonio fixes the time of Matienzo's arrival at Elmsford as shortly after
2 p.m. and Matienzo fixes the time when heocaolled his office and had his two
organizers meet him at the Bronx at 2:15. It could hardly have been earlier if
Giannantonio is correct since he had to talk with Giannantonio, listen to the com-
plaints of the girls at Elmsford, and get 15 or 20 cards signed before he made the
call. When Matienzo made this call his organizers were in upper Manhattan.
Assuming they received the word from Matienzo's office at 2:20 p.m. it is hardly
possible ,that they could have reached the Bronx plant (its distance from Manhattan
was never established) and begun organizing there any earlier than 2:45 p.m. Yet
the times given by the various witnesses as the earliest they knew of organizing vary
from before noon to 3 p.m. Edward James fixed the time as before noon 46 and
-so did the pretrial affidavit of Parragio. Herrick, Nieves, and Taylor fixed it as
2 p.m.; McFetridge fixed it as 2:30 p.m.; Smith and Lambert as 2:45 p.m.; Fonseca,
Ortiz, Wilson, and Parragio ( in his testimony) as 3 p. m.; and Patrissi fixed it as
between 2 and 3 p.m. At the time the testimony of these witnesses was given it did
not appear that the time when organizing was commenced was important so I can
only believe ,that they were testifying to the best of their recollections some 6 months
after the event. It must be inferred that if the organizers began their work earlier
than 2:45 then either the testimony of both. Giannantonio and Matienzo with respect
to time was incorrect or Matienzo was lying when he said he did not know of the
41 1 find no violation In Wilson's direction to the girls to go down and listen to the
organizers nor in Ricciardi's conversation with employees who were not members of
Local 249. Wilson's directions were unaccompanied by any suggestion that they sign and
merely exposed the employees to Local 422 propaganda. While It occurred on company
time the employees had been given permission to attend Local 249 meetings on company
time.
The only testimony respecting Ricciardi's conversations with nonmember employees is
his own in which he states that when they asked him if they should sign he told them
he did not see any harm in it. In Humble Oil & Refining Company v. N.L.R.B, 113 F. 2d
S5 (C.A. 5), the court, page 92, stated:
When not speaking in the exercise of their authority, nor with the knowledge or
approval of their employer, but in the discussion of employee affairs on their own
responsibility, they are within the personal rights of free speech.
Accordingly, I find no violations in these conversations.
"Thus, Parragio twice took Herrick across the street and asked him to sign a card ;
Canning twice asked the employees in his department if they had signed and asked them
what they were waiting for; Kurtz and Parragio both asked Fonseca to sign and Kurtz
solicited Nieves and threatened him ; and Ricciardi directed McIsaac to sign and gave him
a card for Driscoll to sign.
se In its brief the Charging Party states that Ricciardi told McIsaac 1 week before
May 28 that the day shift at Elmsford was getting a new union, thereby indicating Re-
spondent knew that Local 422 was moving in. In his testimony, however, McIsaac stated
he could not remember the date but that he believed it was before Ricciardi gave him the
card to sign. McIsaac was not sure whether he was given the card on the evening of
May 28 or 29, but in any event Ricciardi's remark could have been made after the day
employees had signed with Local 422. I cannot accept the inference suggested by the
Charging Party.
"James was an unimpressive witness and I do not credit him on the time.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existence of the Bronx plant until after he reached Elmsford and Local 422 did have
knowledge of the Bronx plant and had determined to hit both plants at the same
time.47 Any or all of the witnesses could have been mistaken as to time and I
cannot make any conclusive finding on .this point . Yet it is from this testimony that
1 am asked by counsel for the Charging Party to assume that a plot existed , concocted
by Nadaline , to have Local 422 move into both plants on May 28 and oust Local
249. No motive is given for this plot except for the statement in the Charging
Party's brief , not supported by evidence received in the record , that Local 422 was
a racketeering union favored by employers in the industry.46 The Trial Examiner
is asked to infer, again without supporting facts, that Nadaline was such an employer
and that his motive for seeking to destroy a bargaining relationship which had
lasted over a period of years was his disagreement with Local 249 over the wage
differential of the new contract . Captivating as this theory may be , I must reject
it on the ground that conjecture , however plausibly posed, may not be substituted for
proof.
While the General Counsel did not join in the above argument both he and the
Charging Party contend that Nadaline ( 1) encouraged his employees and supervisors
to sign with Local 422, and (2) with full knowledge of his supervisors ' activities
on behalf of 422 did nothing to restrain or disavow them.
Taking first the question of direct encouragement , the General Counsel has not
sustained his burden of proof. Testimony which I credit establishes a pattern
of conduct inconsistent with that contention . The parties , as far as this record
shows, had enjoyed a bargaining relationship reasonably free from acrimony and
dispute over a period of years. While disagreement existed over the payment of a
wage differential this problem does not appear to have been insoluble and it had
not disturbed relations in the past 49 That Nadaline did not anticipate serious
difficulty in reaching agreement on the new contract and that he was not seeking
to avoid negotiating with Local 249 is indicated by his request made on May 7 for
the new wage rates under the contract between the Association and 249 and for
permission to put them into effect. Had Nadaline then been contemplating dealing
with another union there would have been no reason to put the wage rates into effect
prior to the time his own employees had ratified the contract. Nadaline cannot be
said to have been looking for a "sweetheart contract" with another union at that
time. Only 2 days after his employees ratified the new contract Nadaline met with
Wisotsky on May 24 to discuss the new contract . While Wisotsky evidently expected
Nadaline to sign the rider as a matter of routine (the contract had not yet been
printed ), Nadaline raised specific problems which he wanted resolved . It was then
agreed that Nadaline and Mack Young should meet on either May 28 or 29 50
The first information that Nadaline received concerning the possibility of a new
union was in the call from Ricciardi on the morning of May 28 some time after
Ricciardi 's meeting with the girls of Elmsford . Ricciardi testified that when he
told Nadaline the girls were talking of a new union Nadaline replied , "Let them talk,
as long as they do their work . Let them go to work ." Nadaline added the comment
that it would probably wear off and that nothing would come of it. Here again there
is no intimation that Nadaline planned for or expected a rival union to appear. His
only reaction to this call was one of indifference and unconcern.51
47 There appears to be no reason for Matienzo to lie on this point. If Local 422 did
know of the existence of both plants and did intend to start organizing at each at approxi-
mately the same time it would not alter or affect the case
49 The brief of the Charging Party is tainted by reference to matters dehors the record
with respect to Local 422
49 The record indicates the problem came into focus when companies which had been
paying the differential were acquired by Fotochrome. While no positive finding can or
need be made, there is evidence that some employees who had been paid the wage differen-
tial with other companies continued to receive it after their companies were acquired by
Fotochrome.
50 The Charging Party contends that Nadaline's alleged request of a postponement from
May 28 to 29 indicates a desire of time in which to undermine 249. A 24-hour postpone-
ment hardly serves such a purpose The record here establishes that Nadaline was almost
abnormally prompt in arranging the meetings.
si Later that day Ricciardi again called to tell Nadaline he had received the telegram
from Local 422 demanding recognition. In the course of the conversation he told
Nadaline that he had signed with 422. I attach no weight to Nadaline's reported com-
ment, "Good for you You are entitled to a pension, too." This remark was made after
other supervisors had told Nadaline they had joined 422 so they would be eligible for pen-
sions. Under the circumstances it cannot be interpreted as a commendation.
FOTOCHROME, INC. 1035
After Nadaline learned, following the telephone call from Young to McFetridge,
that a new union was actually organizing at the Bronx plant, he called Parragio to
his office to find out about it. When Parragio acted coy, as Nadaline described it,
Nadaline asked him several times if he had signed and then told him he wanted
to have his cake and eat it too. He reprimanded Parragio in the presence of Herrick
and told Parragio to tell the other employees they did not have to join the other
union, that they could have an election to find out which union was wanted. Later
Nadaline asked Fonseca in the presence of Kurtz if he had signed and told him not to
let anyone influence him. He also told Fonseca to tell the employees Fotochrome
was in the process of negotiating a contract. There is no assistance to Local 422 in
this conduct.
About 5 p.m. some of the employees started to leave the building to go on strike.
Nadaline then called Mack Young and asked him to come up and straighten the
matter out. When Young arrived Nadaline, Young, and Wisotsky, who had orga-
nized the strikers, went to Nadaline's office and discussed the situation for several
hours without agreement. The chief obstacle to agreement was the demand for
recognition from Local 422 and Nadaline's refusal to sign while confronted with
the demand. The call to Young and the ensuing discussion with the agents of
Local 249, while fruitless, are inconsistent if not incompatible with a motive to
bypass 249 and deal with 422. The record, in fact, is bare of any negotiations
between Nadaline and Local 422 so the conspiracy, if any existed, was abortive.
As to the second contention, that Nadaline failed to restrain or disavow the actions
of his supervisors, the weight of the evidence again is to the contrary. Conditions
were chaotic at the Bronx plant on the afternoon of May 28 and Nadaline was caught
in the middle of the chaos. The incumbent union was threatening the strike and
the outside union was disrupting production, a disruption abetted in part by his own
supervisors who were leaving the plant and urging others to leave. Some sympathy
might be expressed for an employer confronted with such confusion, both ambivalent
and conflagrant, and compelled to act with neither counsel nor the Board's 142 vol-
umes of decisions at his hand to guide him.
The General Counsel, with all the advantages of hindsight, does not intimate what
conduct might reasonably be required of an employer unexpectedly and unforesee-
ably faced with such a situation. The circumstances under which Nadaline was
forced to act are most important in appraising his action. This was not a case where
a continuing course of unlawful conduct on the part of his supervisors could be
repudiated by deliberate or formal communication to the employees. The pattern
of events was explosive and kaleidoscopic. In the short space to 2 hours Nadaline
was met with the organization efforts of an outside union, assistance to and activity
on its behalf by his supervisors, the disruption of work routine, and the threat
of strike by the incumbent union. He had time to measure neither his words nor
his action. It would be easy to suggest the steps he might have taken to halt the
organizational efforts of Local 422 but such steps would have entailed the risk of
assisting Local 249. Under the peculiar conditions which so suddenly met him I do
not see how more effective repudiation was possible. He reprimanded Parragio
for his signing with Local 422; he instructed Parragio and Fonseca to tell the other
employees they did not have to sign and that they could have an election; he made a
tour of the plant himself to tell the employees the same thing; 52 and he asked Smith
and Benson who had given them authority to leave the plant. (His silence when
Smith told him she and Benson had signed was the only proper course since either
approval or disapproval involved a violation of Section 8(a) (2).)
I think the steps taken by Nadaline sufficient, under any rule of reason, to disavow
his supervisors' activities at the Bronx plant and to remove such stigma of illegality
as might have attached 53
One further fact, perhaps most cogent of all, must be cited in support of the finding
that Nadaline neither assisted nor encouraged his employees to join Local 422. This
is his failure to either seek or obtain strike replacements from Local 422. Had
Nadaline, as the Charging Party alleges and the General Counsel intimates, actively
desired to supplant Local 249 with Local 422 he inevitably would have requested
employee replacements from it to assist it in acquiring majority status. No replace-
ments were obtained from Local 422. -
sa I do not find the testimony of Hauser sufficient to rebut Nadaline on this point
53 Seamprufe, Inc., 96 NLRB 645; Shoreline Enterprises of America, et al., 114 NLRB
716; American Greetings Corp., 116 NLRB 1622; cf. The Falmouth Company, 114
NLRB 896.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At Elmsford, Ricciardi directly solicited Mclsaac to join Local.422 and indirectly
solicited Driscoll and this solicitation I find in violation of Section 8(a)(2). Ric-
ciardi was not a minor supervisor but the plant manager and in full charge of the
operations of Elmsford subject only to control by the officers at the Bronx. The
Board has recognized a distinction between the activities permitted major and
minor supervisors. National Gypsum Company, 139 NLRB 916; Nassau & Suffolk
Contractors' Association, Inc., 118 NLRB 174; Anchorage Businessmen's Associa-
tion, etc., 124 NLRB 662. Both Mclsaac and Driscoll might well have thought
that Ricciardi was speaking for the Company instead of for himself when he issued
the cards. From the record it is clear that Ricciardi was acting in his own interest
in order to obtain union benefits for himself but this was not made known to Mclsaac.
Ricciardi was not included in the bargaining unit nor was he a member of Local 249.
I think another valid distinction might be made between antiunion conduct by su-
pervisors included in the bargaining unit and those without. In the former case
it may be assumed by other employees that the supervisors, when engaged in such
activity, are acting on their own behalf until it is established that they are speaking
for the company or that the company has authorized or ratified their activiy. I do
not find that a similar presumption may be said to exist when the supervisors have
been excluded. Then the employees must, under ordinary circumstances, assume
they are speaking for management since their own interests will not be at stake. I
would not, therefore, find National Gypsum or the cases cited therein controlling
here. '
Nor do I find that the fact that Nadaline had no knowledge of Ricciardi's action
grounds for exculpation. Nadaline was, during the week of May 28, engulfed by
the tide of events at the Bronx and had no time for Elmsford where conditions were
quickly restored to normal. But the Board has held that an employer may never-
theless be held responsible for the activities of his supervisors even where he had
no knowledge of them and they were, in fact, contrary to his own policy. Thomas
Lanthier, et al., doing business as Lanthier Machine Works, 116 NLRB 1029, 1036,
1037.
I do, however, find Board precedent for dismissing the violation at Elmsford as
isolated 54 The dispute at Elmsford never assumed the serious proportions it did
at the Bronx and at the end of the week the Elmsford plant was working under normal
conditions. By that time the controversy was restricted to the Bronx where the
strike was to continue for months. The assistance provided Local 422 by Ricciardi
was confined to the single incident involving Mclsaac and it had no influence on the
overall picture. It neither caused nor prolonged the strike at the Bronx nor did it
affect the other employees at Elmsford. I would be unwilling to recommend the
issuance of an order affecting the Respondent and both unions and which would
resolve the other highly important issues herein on the strength of this isolated viola-
tion of Section 8(a)(2). The scope of the Act is broader than a traffic code and it
must be applied in a broader spirit. The tail should not wag the dog.
I shall recommend that the complaint insofar as it alleges violation of Section
8(a)(2) be dismissed.
3. Violations of Section 8 (a) (1)
a. Promises of benefit to return to work
I have already credited Nadaline's testimony denying the offer of any pay raise to
John Whelan. The substance of Rizzo's testimony is that Nadaline told her that
if she wanted to go back he would guarantee her job. The General Counsel con-
tends that this was an offer of benefit, although on what grounds I do not know unless
he asserts that Nadaline was offering a guarantee of a lifetime job. This proposition
I reject. I find in this offer nothing more than a guarantee by Nadaline that Rizzo
could have a job if she wanted to go back, an offer that was not accompanied by any
promise of benefit.
I have accepted the testimony of Virginia Ortiz that she was told by Nadaline that
if she would learn to print he would give her a job as printer. Since this resulted
in an increase in wages from $65 to $100 per week 55 it was clearly an offer of benefit.
54 Lenox Plastics of PR., Inc., 128 NLRB 42, 44; Gibbs Automatic Division, Pierce
Industries , Inc., 129 NLRB 196; Great Atlantic and Pacific Tea Co , Inc., 129 NLRB 757 ;
Phillips Control Corp., at at. , 129 NLRB 1485 , 1490; Grimes Manufacturing Company,
131 NLRB 1335, 1338; Bernhard-Altmann International Corporation , 137 NLRB 229.
65 The actual wages of printers was $99 per week.
FOTOCHROME, INC. 1037
Mary Franchini called Patrissi on May 25, the Friday before the strike, told him
she was ready to return to work from maternity leave, and asked to be transferred
from the night to the day shift. Patrissi told her there was no day opening. On
May 28 when she reported she joined the strike and testified that the next day
Patrissi called her and told her he could put her to work on the day shift. In
alleging this as an offer of benefit the General Counsel overlooks the vastly changed
conditions of Fotochrome between May 25 and 28. The record does not show
that any work was available on May 25 on the day shift, nor can it be concluded
that if work had been available she would not have been transferred as requested.
On Monday, however, over 100 workers went out on strike and it may reasonably
be concluded that daywork was available. The granting of her request under these
conditions is not a grant of benefit for abandoning the strike in violation of Sec-
tion 8 (a) (1).
I do find the offer to Ortiz a violation of Section 8(a)(1). I shall not, however,
recommend the issuance of an order based on a single unlawful offer made to one
striker of over 100 made during the course of a 6-month strike.56
b. Surveillance
The allegation of surveillance refers to the monitoring of the telephone call from
Young to McFetridge on May 28. The call was made through the plant switch-
board on McFetridge's working time; the act of monitoring it was a voluntary one
on the part of the operator; whether Nadaline listened or Salomon reported the
substance of the call is immaterial. The element of premeditation, i.e., the in-
struction to spy or eavesdrop is missing and the fact that a fellow employee monitored
the call and thereafter made known the substance of the call to Nadaline does not
retroactively endow the act with the taint of surveillance. I would, in fact, assume
that an employer had a reasonable right to exercise control over his own switch-
board and to prohibit its use for private or personal calls. In any event the placing
of the call by Young through the company switchboard involves a question of
assumed risk. If an employee had inadvertently overheard McFetridge and another
employee discussing strike plans and reported it to his superior the act would not
constitute surveillance and this is, in essence, no different. To say that in such
cases the employer must close his ears to the proffered information is to impose upon
him standards of highmindedness not found outside the convent and the monastery
I shall recommend that the allegation of the complaint that the Respondent engaged
in unlawful surveillance be dismissed.
c. The assault upon Wisotsky and the threat to Young
In determining whether Nadaline's assault upon Wisotsky was a violation of
Section 8(a) (1) the immediate circumstances under which the assault was committed
must be evaluated, particularly the element of provocation on both sides. After
informing the police of the bomb threat Nadaline went into the street admittedly
"annoyed." I credit Nadaline that he found Wisotsky in the street alleging that .the
bomb threat was a fake. Nadaline then recited a number of instances of property
damage which had occurred during the strike and called Wisotsky "a son-of-a-bitch."
Crediting Correale and Nadaline, I find that Wisotsky pushed Nadaline and that
Nadaline retaliated with a punch to Wisotsky's chest or shoulder which knocked
Wisotsky down.
I do not find this conduct under the conditions which then existed constituted
restraint and coercion of the striking employees. It was a picket line altercation be-
tween the two chief adversaries in the strike, arising spontaneously in a moment of
unusual stress and tension and premeditated by neither. Nadaline did no more
to provoke the assault than did Wisotsky nor do I find that he exercised more than
normal retaliatory force in punching Wisotsky. It is unfortunate that in falling
Wisotsky suffered severe injuries but had the situation been reversed I would not have
found Local 249 in violation of Section 8(b) (1) (A) 57 Picket lines seldom shed the
sweetness and light of the Vassar daisy chain and lengthy strikes are seldom con-
ducted without individual examples of combat and assault58 A realistic tolerance
se See cases cited in footnote 54, supra.
57'Cf National Organization of Masters, Mates and Pilots, Inc, et al. (J. W. Banta
Towing Company, Inc, et al. ), 116 NLRB 1787, and the reversal of the Board by the
Seventh Circuit, 253 F. 2d 66.
ee This was the only instance of -actual picket line assault in many months of picketing
received into the record.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for isolated incidents which do not establish a pattern of violence provides a saner
policy than inquiry in each case as to who struck the first blow in an effort to find
violation. I do not believe the blame for each individual act of picket line assault
where both parties are engaged can properly be apportioned from the ivory towers
of 1717 Pennsylvania Avenue.
Nor do I find the threat to Young a violation of Section 8(a)(1). There is no
evidence that this threat was known to any employee nor any reasonable expectation
that it would become known. Thus, the essential element, a derivative coercion
of employees through knowledge or observance of the threat, is lacking. Nor do I
find a sufficiency of evidence establishing that the threat was made by Parragio.
I shall recommend that the complaint insofar as it alleges assault or threat of as-
sault in violation of Section 8(a) (1) be dismissed.
Disparity of Treatment
Disparity of treatment to show favoritism toward Local 422 suffers from a not
unsimilar debility. It is not alleged in the complaint as a violation of Section 8(a) (2)
but since testimony was offered as evidence of inequality of treatment it may later
be urged that the issue was fully litigated and violation be found.
The General Counsel contrasts the permission granted employees to leave their
posts during working time on May 28 to listen to the organizers for Local 422 with
the reprimands given to Mclsaac, Driscoll, and Gore for attending the meeting of
Local 249 on May 22. McIsaac testified that after they had been given reluctant
permission to attend they were reprimanded when they reported for work at 12:30
a.m. Both the reluctance to give permission and the reprimand were based on the
fact that Tuesday was a busy night. I find no similarity in the situations. The
absence of the nightworkers was excused even though it involved several hours of
time and there is no evidence that other nightworkers were reprimanded. The
absence of the dayworkers on May 28 involved perhaps 15 to 30 minutes of time
and there is testimony that the mail clerk was sent after two employees who were
gone too long. In either case I would say the Respondent was lenient but not
disparate in its disciplines.
4. Violation of Section 8(a)(5)
As has been stated, the Respondent and Fotochrome (or its predecessor corpora-
tions) had enjoyed a collective-bargaining relationship over a long period of years.
Although neither Local 249 nor its predecessor local had been certified as the
collective-bargaining agent for the employees at Fotochrome, there exists, I believe,
a presumption that a labor organization enjoying contractual status represents a
majority of the employees in the bargaining unit. To hold otherwise would establish
a presumption that the parties engaged in unlawful conduct,59 a presumption repug-
nant to the law. The most recently expired contract contained a valid union-security
clause. I therefore find that on the morning of May 28 Local 249 represented a
majority of the employees in the unit heretofore found appropriate so
On May 28, however, the situation changed, for on that day Local 422 succeeded
in obtaining authorization cards 61 from employees of Fotochrome and made its
demand for recognition at the Bronx and Elmsford plants. It was this demand which
prompted Nadaline to refuse to sign the rider to the new contract during the meeting
on the evening of May 28.
It is settled that "an employer faced with conflicting claims of two or more rival
unions which give rise to a real question concerning representation may not recog-
nize one of these unions until its right to be recognized has been fully determined
under the special procedures provided by the Act." 62 Nadaline himself had wit-
nessed the organizational efforts of Local 422 and knew that many of his employees
had signed with the organizers of that local. He was not, therefore, confronted with
a• naked claim of representation.63 Since I have found that the Respondent com-
69 International Ladies' Garment Workers' Union, AFL-CIO ( Bernhard-Altmann Texas
Corp.) v. N.L.R.B., 366 U S. 731.
60 C. D. Sawyer, d/b/a Sawyer Industrial Sheet Metal Fabricators , 103 NLRB 997.
'Other evidence introduced at the hearing indicated Local 249 retained its majority status.
61 The exact number of cards obtained was not disclosed.
62 Novak Logging Company, 119 NLRB 1573; Midwest Piping t Supply Co ., Inc., 63
NLRB 1060, 1070.
63 Neo Gravure Printing Company, etc ., 136 NLRB 1407.
COLUMBIA CABINET CORP. 1039
mitted no unfair labor practices which assisted Local 422 or contributed to loss of
majority status of Local 249, I shall recommend that the complaint , insofar as it al-
leges violation of Section 8(a) (5), be dismissed.
5. Violation of Section 8(a)(3)
It is alleged that Respondent violated Section 8(a)(3) when it refused to reinstate
the strikers upon the unconditional offer to return made on their behalf by Local 249
on September 17. The General Counsel rested his argument on the ground that the
strikers were, by reason of Respondent 's unfair labor practices which either caused
or prolonged the strike , unfair labor practice strikers entitled to reinstatement upon
application . Since I have found no unfair labor practices the strikers were in the
position of economic strikers entitled to reinstatement if work was available. No
showing was made that work was available for any of the strikers on September 17
or that all had not been permanently replaced. This failure of proof requires a
recommendation that the 8 (a) (3) of the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in a business affecting commerce within
the meaning of the Act.
2. Locals 249 and 422 are labor organizations within the meaning of Section 2(5)
of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a) (1), (2 ), (3), and (5) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
Columbia Cabinet Corp . and Industrial Union of Marine and
Shipbuilding Workers of America, AFL-CIO, Petitioner. Case
No. 5-RC-41322. April 03, 1964
SUPPLEMENTAL DECISION AND ORDER
Pursuant to a Decision, Order, and Direction of Second Election
issued by the National Labor Relations Board on November 7, 1963,
an election by secret ballot was conducted by the Regional Director
for the Fifth Region on November 13, 1963, among the employees in
the appropriate unit. Following the election, the Regional Director
served upon the parties a tally of ballots which showed that of ap-
proximately 63 eligible voters, 63 ballots were cast, of which 29 were
for, and 24 against, the Petitioner,and 10 ballots were challenged.
The number of challenges was sufficient to affect the results of the
election. No objections have been filed.
In accordance with the Board 's Rules and Regulations, the Regional
Director investigated the challenges and, on December 19, 1963, issued
and duly served upon the parties his report on challenged ballots, in
which he recommended that five challenges be sustained and two
challenges be overruled . The Regional Director further recom-
mended that the latter two challenged ballots be opened and counted,
and if they, were not determinative of the outcome of the election, the
146 NLRB No. 130.
744-67O--6-v&1 . 116-6 7