General Stencils, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1969

178 N.L.R.B. 108 (N.L.R.B. 1969)

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Stencils , Inc. and International Union of
District 50, United Mine Workers of America.
Case 29-CA- 1028
August 15, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 19, 1968, Trial Examiner Abraham H.
Mailer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal as to them. Thereafter,
the General Counsel, Charging Party, and
Respondent filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner, with the following additions and
modifications.
1. We agree with the Trial Examiner that the
Respondent violated Section 8(a)(1) of the Act by
interrogating employees about their union
sentiments and activities and their statements given
to Board agents, and by threatening employees with
reprisal if the Union won the election.'
'The Respondent has excepted to certain credibility findings made by the
Trial Examiner. It is the Board ' s established policy not to overrule a Trial
Examiner' s resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect . We find no such basis for disturbing the Trial Examiner's
findings in this case . Standard Dry Wall Products , Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3).
'The General Counsel excepted to the Trial Examiner's failure to find
that Respondent threatened employees with discharge when President
Klugman declared his intent, if employees selected union representation, to
institute a new rule whereby an employee late three times in l month
would be discharged . Based on testimony credited by the Trial Examiner,
Respondent not only unlawfully threatened to institute , but also threatened
discharge under it in retaliation for selecting the Union . Accordingly, we
shall amend the Order and Notice to reflect this finding.
'While finding that Respondent violated 8(a)(l) by interrogating
employees regarding statements given to Board agents and by threatening
to lay off employees when work became slack instead of keeping them on
2. Although finding that the Respondent engaged
in substantial unfair labor practices in violation of
Section 8(a)(1), the Trial Examiner dismissed the
8(a)(5) allegation of the complaint. He viewed the
Respondent's experience with previous union
bargaining requests followed by election defeats in
1961 and 1966, as providing a reasonable ground for
questioning the dependability of the Union's
majority showing by authorization cards," and held
that this was a basis for a good-faith doubt which
was not vitiated by the Respondent's unfair labor
practices.' We do not adopt the Trial Examiner's
conclusion.
Where unlawful conduct is aimed at and does
undermine a union's majority, it is irrelevant that
the employer may have a rational, albeit erroneous,
doubt of majority or that he has a general distrust
of cards. A preference for proof of majority by an
official secret-ballot election cannot become a
license to engage in conduct designed to prevent the
exercise by employees of a free choice concerning
representation. An employer who raises the majority
issue in such a context should not be permitted to
control the method for resolving the issue.
Nor does the fact that unions had lost earlier
representation elections after asserting card
majorities, as was the situation in Gissel Packing
Co.,` support Respondent's claim that the cards here
are unreliable reflections of the employees' choice
any more than it established that in another election
now the Union presently petitioning will lose. If this
were true, there would be little justification for the
periodic exercise of choice which is based upon the
recognition that circumstances and views change.
Indeed, it may be assumed that an employer's
unwillingness to participate in an election without
engaging in unfair labor practices aimed at
influencing that election indicates his fear that in the
forthcoming election a majority of employees will
vote for union representation. In assuring to
employees the freedom to choose whether to be
represented and imposing upon employers the duty
to bargain with a majority representative, the law
makes no distinction between whether this was the
first or second time the employees have considered
the payroll in accord with its existing practice, the Trial Examiner failed to
remedy these violations in the Recommended Order. We shall revise the
Order and Notice to provide therefor
We agree with the Trial Examiner 's finding that at the time of demand
the Union possessed valid authorization cards from a majority of
employees in the appropriate unit.
'We find no additional support for this finding in the agent's remarks
that the Union could not win an election . These remarks were made in the
context of informing the Respondent that unfair labor practice charges
would be filed and of protesting further unlawful interference, while
attributing to such conduct loss of constancy in Union adherence An
employer may not undermine the organizational efforts of its employees
and then use the effects of such unlawful conduct to support its asserted
doubt as to the success of these efforts Nor can Respondent claim
vindication because it overheard reluctant sentiments toward unionization
expressed by the very employees who were the objects of its own coercive
conduct. Such evidence establishes that Respondent's campaign had in fact
instilled fear in the employees that their activity could jeopardize their
jobs
'N L.R.B. v Gissel Packing Co., 395 U.S 575.
178 NLRB No. 18
GENERAL STENCILS, INC. 109
the issue.
We have previously found that the Respondent
engaged in widespread unfair labor practices during
the Union's organizing drive, before and after
receiving the Union's demand for recognition. Thus,
the Respondent in violation of Section 8(a)(1)
interrogated employees about their union activities
and evinced to employees its intention to revoke
many existing privileges if they elected the Union.
These unfair labor practices, notwithstanding the
Respondent's expressed willingness to proceed to an
election, tended to destroy the employees' free
choice by frightening them into withdrawing their
allegience from the Union and were of such a nature
as to have a lingering effect and make a fair or
coercion-free election quite dubious, if not
impossible. In these circumstances, we are of the
opinion, and find, that, on balance, the rights of the
employees and the purposes of the Act would be
better effectuated by reliance on the employee
sentiments expressed in the authorization cards
rather than on the results of an election.'
Accordingly, as the record establishes that the
Union had secured authorization cards from a
majority of employees when it made its request for
recognition, we find that by refusing the Union's
request and engaging in the aforesaid unfair labor
practices, the Respondent engaged in conduct
violative of Section 8(a)(5) and that an order
requiring the Respondent to recognize and bargain
with the Union is appropriate to remedy its
violations of Section 8(a)(5) and (1) of the Act.
Conclusions of Law
1. The Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act
by interrogating employees in a manner constituting
interference, restraint, and coercion, about their
union sympathies and activities, and about their
statements given to agents of the National Labor
Relations Board and by threatening employees with
enforcement of a no-smoking rule, with discharge
through the institution of a new tardiness rule, with
discontinuance of loans to employees, with cessation
of free coffee breaks, with laying off employees if
work got slow, contrary to existing practices, and
with plant closure, all if the Union won the election.
4. At all material times, the Union has been the
exclusive bargaining representative of the employees
in the following unit:
All production and maintenance employees of
General Stencils, Inc., employed at its plant,
exclusive of guards, Watchmen and all supervisors
as defined in Section 2(11) of the Act.
'Fn. 6, supra.
5. Since June 23, 1967, the above-named labor
organization has been and now is the exclusive
representative of all employees in the aforesaid
appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
6. By refusing on or about June 23, 1967, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
representative of all the employees of the
Respondent in the aforesaid appropriate unit, the
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, its
employees in the exercise of the rights guaranteed to
them in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
General Stencils, Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their
membership and/or interest in International Union
of District 50, United Mine Workers of America, or
any other labor organization of its employees, in a
manner constituting interference, restraint, or
coercion within the meaning of Section 8(a)(1) of
the Act, or about any statements given to agents of
the National Labor Relations Board.
(b) Threatening to enforce a no-smoking rule, if a
majority of the employees selects International
Union of District 50, United Mine Workers of
America, or any other labor organization of its
employees, to represent them.
(c) Threatening to impose a tardiness rule, and
threatening employees with discharge through the
implementation of this rule, if a majority of the
employees selects International Union of District 50,
United Mine Workers of America, or any other
labor organization of its employees, to represent
them.
(d) Threatening to refuse to make loans to its
employees, if a majority of the employees selects
International Union of District 50, United Mine
Workers of America, or any other labor
organization of its employees, to represent them.
(e) Threatening to cease providing its employees
with coffeebreaks (or free coffeebreaks), if a
majority of the employees selects International
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union of District 50, United Mine Workers of
America, or any other labor organization of its
employees, to represent them.
(f) Threatening to close the plant, if a majority of
the employees selects International Union of District
50, United Mine Workers of America, or any other
labor organization of its employees, to represent
them.
(g) Threatening employees with layoffs if work is
scarce, contrary to established practice of avoiding
layoffs, if a majority of the employees selects
International Union of District 50, United Mine
Workers of America, or any other labor
organization of its employees, to represent them.
(h) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with International Union
of District 50, United Mine Workers of America, as
the exclusive bargaining representative of its
employees in the following appropriate unit:
All production and maintenance employees of
General Stencils, Inc., employed at its plant,
exclusive of guards, watchmen and all supervisors
as defined in Section 2(11) of the Act.
(i) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join, or
assist any labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such
activities, except to the extent that such right is
affected by the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all the employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Brooklyn, New York, plant, copies
of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by
an authorized representative of the Respondent,
shall, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
'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."
(c) Notify the Regional Director for Region 29, in
writing, within 10 days from the date of this
Decision and Order, what steps Respondent has
taken to comply herewith.
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 interrogate employees concerning their
membership and/or interest in International Union of
District 50, United Mine Workers of America, or any
other labor organization of our employees, in a manner
constituting interference, restraint, or coercion within
the meaning of Section 8(a)(1) of the Act or about
statements given to agents of the National Labor
Relations Board.
WE WILL NOT threaten to enforce a no-smoking rule,
if a majority of our employees selects International
Union of District 50, United Mine Workers of
America, or any other labor organization of our
employees, to represent them.
WE WILL NOT threaten to impose a tardiness rule, or
threaten employees with discharge through the
implementation of this rule, if a majority of our
employees selects International Union of District 50,
United Mine Workers of America, or any other labor
organization of our employees, to represent them.
WE WILL NOT threaten to refuse to make loans to'our
employees, if a majority of our employees selects
International Union of District 50, United Mine
Workers of America, or any other labor organization
of our employees, to represent them.
WE WILL NOT threaten to cease providing our
employees with coffeebreaks (or free coffeebreaks), if a
majority of our employees selects International Union
of District 50, United Mine Workers of America, or
any other labor organization of our employees, to
represent them.
WE WILL NOT threaten to close the plant, if a
majority of our employees selects International Union
of District 50, United Mine Workers of America, or
any other labor organization of our employees, to
represent them.
WE WILL NOT threaten employees with layoffs if work
is scarce, contrary to our established practice of
avoiding layoffs, if a majority of our employees selects
International Union of District 50, United Mine
Workers of America, or any other labor organization
of our employees, to represent them.
WE WILL NOT refuse to bargain collectively with
International Union of District 50, United Mine
Workers of America, as the exclusive representative of
the employees in the bargaining unit described below.
WE WILL NOT in any like or'related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such right is affected by the proviso to
GENERAL STENCILS, INC.
Section 8(a)(3) of the Act.
WE WILL upon request , bargain with the above-named
Union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay, wages , hours, and other terms
and conditions of employment , and if an understanding
is reached , embody such understanding in a signed
agreement.
The bargaining unit is:
All production and maintenance employees of
General Stencils , Inc., employed at its plant,
exclusive of guards , watchmen , and all supervisors as
defined in Section 2(11) of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of the
above-named Union or any other labor organization.
Dated By
GENERAL STENCILS, INC.
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor Brooklyn, New York 11201, Telephone
212-596-3535.
TRIAL EXAMINER ' S DECISION
ABRAHAM H. MALLER, Trial Examiner On June 23,
1967, International Union of District 50, United Mine
Workers of America, herein called the Union, filed a
charge against General Stencils, Inc., herein called the
Respondent. Upon said charge, the Regional Director for
Region 29 of the National Labor Relations Board, herein
called the Board, on August 31, 1967, issued on behalf of
the General Counsel a complaint against the Respondent,
alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended (29 U.S.C.
Sec. 151, et seq.), herein called the Act. In its duly filed
answer, Respondent denied the commission of any unfair
labor practices
Pursuant to notice, a hearing was held before me at
Brooklyn, New York, on December 18, 19, 20, 21, and
22, 1967. The General Counsel, the Respondent, and the
Charging Party were represented and were afforded full
opportunity to be heard, to introduce relevant evidence, to
present oral argument, and to file briefs with me. Briefs
were filed by the General Counsel and the Respondent.
Upon consideration of the entire record, including the
oral argument of the General Counsel and the briefs, and
upon my observation of each of the witnesses, I make the
following:
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
At all times material herein, Respondent has
maintained its principal office and place of business at 827
East 92 Street in the City of Brooklyn, New York, where
it is, and has been at all times material herein, engaged in
the manufacture, sale, and distribution of marking
devices, etched name plates, and related products. During
Ill
the year ended December 31, 1966, which period is
representative of its annual operations generally,
Respondent , in the course and conduct of its business
operations, manufactured, sold and distributed at its plant,
products valued in excess of $50,000, of which products
valued in excess of $50,000 were shipped from said plant
in interstate commerce directly to states of the United
States other than the State of New York. In view of the
foregoing, I find and conclude that the Respondent is
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act for the Board
to assert jurisdiction here.
If. THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine
Workers of America, is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ISSUES
1. Whether the Respondent interfered with, restrained,
and coerced its employees in the exercise of rights
guaranteed them under Section 7 of the Act, in violation
of Section 8(a)(1) of the Act.
2. Whether the Union represented a majority of the
employees of the Respondent in an appropriate unit when
it requested recognition and bargaining.
3. Whether the Respondent's refusal to bargain was
based on a good-faith doubt as to the Union's majority.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is managed and supervised by its 67-year
old secretary and general manager, Joseph Klugman who
has operated the firm in that capacity for the past 42
years. Clad in overalls, Klugman spends his days at the
plant directing the production force, assisting in the work,
and getting materials.
There has never been a union certified or recognized by
the Respondent. In 1961, the Charging Party came to
Klugman and demanded recognition based upon a claimed
majority of cards. Klugman refused to recognize the
Union and told the representative that he would recognize
the Union only if the employees voted for the Union in a
secret ballot election . Subsequently, there was an NLRB
election, and the Board certified that a majority had not
voted for District 50.
In June 1966, a representative of New York Local
Union 10, International Brotherhood of Production
Maintenance and Operator Employees came to the
Respondent and claimed to have a majority of cards and
demanded bargaining. Again, Klugman refused to
recognize the union and said he would do so only if there
was an election which the union won. In an ensuing
election, a majority of the employees voted against union
representation. Objections were filed by the union based
on a statement signed by a number of employees to the
effect that the Respondent had committed unfair labor
practices which affected the results of the election. Upon
investigation, the employees retracted their statement, and
the Regional Director dismissed the objections and
certified the results of the election.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Union's Organizing Campaign
The Union began organizing Respondent's plant around
June 8, 1967.' William J. Pohmer, International
Representative, solicited employees to sign authorization
cards in front of the plant in the morning as they came to
work, during lunchtime, and at quitting time. On June 22,
he held a meeting of Respondent's employees after work.
Approximately 22 employees were present. Some
employees signed cards at the meeting.
The authorization cards read as follows:
INTERNATIONAL UNION OF DISTRICT 50
UNITED MINE WORKERS OF AMERICA
Local Union
No.
I hereby request and
above-named union and of
to act as my agent or
bargaining purposes.
Ledger
No.-
accept membership in the
my own free will authorize it
representative for collective
Date
Name (Print),
Address
City
Signature
Employed by (Company)-
Classification of Employment
Representative
Clock No
Telephone
State
Pohmer also told the employees that initiation fees
would be waived and that they would not have to pay dues
until after a collective-bargaining agreement was signed.
By June 23, 1967, 24 members of the appropriate unit
had signed the aforesaid authorization cards.
C. Respondent Refuses To Recognize the Union
On June 23, Pohmer accompanied by the Union's
Regional Director, Charles Retty, visited Respondent's
office at its plant and spoke with General Manager Joseph
Klugman. Pohmer and Retty introduced themselves as
agents of the Union. Pohmer told Klugman that the
Union was the majority representative of Respondent's
production and maintenance employees and offered to
show Klugman the union membership application cards
which he had with him.' Pohmer had the cards in his hand
and tendered them to Klugman who turned away, saying
that he did not want to see the cards. Klugman insisted
that he wanted an election. Pohmer responded: "There is
not going to be any election. We are filing a refusal to
bargain charge and there will be no election." Pohmer
'Unless indicated otherwise , all events detailed herein occurred during
1967
also admittedly told Klugman that the Union could not
win an election."
The Union then filed the authorization cards with the
Board's Regional Office, and sent a letter to the
Respondent again claiming a majority, offered to submit
the authorization cards to an unbiased check, and
requested bargaining.
Thereafter, on or about June 30, and on various other
dates in July and August, Pohmer called upon Klugman
and on each occasion requested recognition and
bargaining. Klugman reiterated his insistence on an
election.
D. Violations of Section 8(a)(1)
The General Counsel's case with regard to the alleged
violations of Section 8(a)(1) of the Act consists of the
testimony of several employees and former employees
each of whom testified to conversations with Klugman
outside the presence of any other witness On the whole,
their testimony is uncorroborated. Klugman took the
stand and categorically denied each of the violations
testified to by the employees. His testimony is likewise
uncorroborated. In this posture, the Respondent contends
that the evidence is equally balanced. one witness against
one in each instance. However, it is well settled that
preponderance is not determined by a mechanical
approach. Rather, preponderance in such instances
depends upon the credibility of the witnesses.
Klugman's denials of the various statements attributed
to him did not impress me. On the other hand, some of
the employee witnesses, judging from their appearance
and demeanor while testifying, and other circumstances
discussed infra, did impress me as straighforward, honest
witnesses, and I have credited their testimony. Other
employee witnesses, judged by the same standard, did not
appear to be credible witnesses.
A number of witnesses for the General Counsel testified
to antiunion statements by Klugman, including his opinion
that the Union was not good for the employees, that
unions were like gangsters, etc. In the ensuing discussion
of the testimony, I have ignored these alleged statements
which constitute mere expressions of views, argument, or
opinion containing no threat of reprisal or force or
promise of benefit, and, as such, are protected by Section
8(c) of the Act.
Henry Maldonado testified that before the June 22
meeting, Klugman told him that "if the Union got in,
there would be no special raises On
cross-examination, however, he was confronted with his
pretrial statement dated August 18, in which he stated
that Klugman had not said anything to him about the
Union, nor had Klugman ever questioned him about the
Union, or told him that anything would happen if the
Union got into the shop. Maldonado then changed his
testimony and stated that his conversation with Klugman
took place in November, after he had given the pretrial
'Pohmer claimed that he had with him 25 union membership application
cards. However, it is clear from the record that one of the application
cards relied upon by the General Counsel to establish the Union's majority
was signed by employee Rivera after June 23 1 therefore find that Pohmer
had only 24 cards with him at that time.
'According to Pohmer , in his second conversation with Klugman on June
30, he told Klugman that the reason he felt that the Union could not win
an election was the information given to him by the employees to whom he
had spoken , to the effect that it was impossible to win an election because
of the tactics of the Company , viz. implied threats, giving people extra
holidays, raises under the table, and all kinds of pressure.
GENERAL STENCILS, INC. 113
statement. In addition, Maldonado admitted on
cross-examination that he had been fired by Klugman and
did not like him. It is extremely unusual that, although
Klugman did not make any antiunion statements to
Maldonado during the Union's organizing campaign, he
should engage in such conduct after the issuance of the
complaint herein. In sum, I do not credit Maldonado's
testimony.
Nor do I credit the testimony of John Mandia. Mandia
testified that he had three conversations with Klugman
both before and after he had signed a card. Later, he
testified that he did not recall any conversation after he
signed the card. According to Mandia, Klugman in the
first conversation asked him if he was going to sign a card
and told him that the Union was not going to make things
better. Mandia admitted that he had started two of the
conversations with Klugman by asking Klugman what he
thought about the Union and that Klugman had replied
that the unions were no good, that they were just going to
take his money away, and that they are like gangsters.
Finally, Mandia admitted that the only thing he could be
sure of was that Klugman made a statement that the
Union was not in the best interest of the workers
Robert Kretschmer had been employed by the
Respondent for 7 years, but at the time of the hearing was
no longer employed by the Respondent, having left
voluntarily the previous October to work for the city of
New York. He signed a union card on June 12.
Kretschmer testified to several conversations with
Klugman, although he admittedly was confused as to the
dates of these conversations. He testified that in these
conversations, Klugman at various times said that he
could always close down the business if the Union came
in, that if the Union came in. (a) Respondent would cut
out the free coffeebreaks,s (b) Respondent would cease
maintaining the close relationships it has with its
employees; (c) Respondent would cease making loans to
employees, (d) Respondent would stop the employees from
smoking Klugman denied making the foregoing
statements, except that he admitted telling Kretschmer
that "if the Union got in, it sets up a wall and there
would be no more close relationships with employees."`
On August 2, at a union meeting, Kretschmer gave a
statement to a Board agent. The following day, Klugman
told Kretschmer that he knew there had been a union
meeting the previous night and that he knew who was at
the meeting. Klugman then asked him which employees
were there. Kretschmer refused to tell him. Klugman then
said that employee George Dusling and "Mary" were
there and that altogether six employees had attended.
Klugman then asked Kretschmer whether he had given a
statement to the Board, and when Kretschmer admitted
that he had done so, Klugman asked him what the Board
agent had asked Kretschmer and what Kretschmer had
told the Board agent.
Despite Kretschmer's inability to fix satisfactorily the
dates of the foregoing conversations (except that which
followed the meeting of August 2), I find that he was a
credible witness. At the time of the hearing, he was no
'Kretschmer was uncertain whether Klugman said he would cut out the
free coffeebreaks or merely the coffeebreaks. The record shows that
Respondent's employees enjoyed two coffeebreaks, one in the morning and
one in the afternoon Respondent provides the coffee, and at one of the
breaks also provides free cake
`In the context of the record, this admission is particularly significant
Respondent makes loans to employees from time to time, pays their
doctor's bills when they are sick, and keeps them on the payroll, instead of
laying them off, when business is slow.
longer employed by the Respondent, having left under
what appeared to be pleasant circumstances. Although he
had signed a card for the Union, he appeared to be
completely neutral at the time of the hearing. Moreover,
as noted above, his testimony was corroborated by that of
Klugman in a very significant detail. Also, Kretschmer's
testimony regarding Klugman's threat to stop smoking in
the plant parallels that of employee de Thomas (discussed
infra), to whom Klugman had made a similar threat.
Respondent contends that Kretschmer's testimony
should not be credited, because Klugman knew in May
that Kretschmer was going to leave for another job, and
therefore, it does not make sense that Klugman would
have uttered threats to him as to what he would do if the
Union came in. The contention must be rejected.
Although Klugman knew that Kretschmer intended to
leave to accept a job with the City of New York, neither
Klugman nor Kretschmer knew when that would happen
In the meantime, Kretschmer was an employee. It is not
inconceivable that Klugman would have made those
statements to Kretschmer in the hope that Kretschmer
would disseminate these statements among the other
employees. Cf. Blade-Tribune Publishing Company, 161
NLRB 1512, 1516, where an employee who had given
notice of his intention to quit was interrogated as to how
he felt about the Union.
Klugman's statements to Kretschmer, detailed above,
and his interrogation of Kretschmer regarding the meeting
of August 2, and regarding the statement he gave to a
Board agent were clearly violative of Section 8(a)(1), and
I so find.
Employee Kenneth de Thomas is currently employed by
the Respondent and has been so employed for 12 years.
He signed a union card on June 9. Prior to the union
meeting of June 22, Klugman and de Thomas observed
employee Duane Nicholas smoking in the plant. Klugman
told de Thomas that "if the union got in, there would be a
rule enforcing the no-smoking rule." A few days later,
while they were in the parking lot, Klugman began talking
about people being late and told de Thomas that, if the
Union got in, he would institute a new rule on lateness,
that anyone late three times in a month would be fired. de
Thomas admitted being late occasionally. de Thomas
testified further that although there are posted in the plant
no-smoking signs furnished by the Fire Department, there
is actually no company rule forbidding smoking and, in
any event, the prohibition against smoking is not enforced.
de Thomas never saw Klugman stop anyone from
smoking. Klugman denied the foregoing conversations.
Although de Thomas admitted being late occasionally,
Klugman testified that de Thomas was not an employee
who came in late. With regard to smoking in the plant, he
testified that he stopped Duane Nicholas from smoking on
one occasion and told him that if he were caught smoking
again he would throw him out of the place.
Nicholas, although called as a witness by the General
Counsel, was not interrogated regarding the smoking
incident testified to by de Thomas. Nor was he called to
rebut the testimony of Klugman. The testimony of neither
witness is corroborated. However, de Thomas' testimony
regarding the threat to enforce the no-smoking rule finds
a parallel in Kretschmer's testimony discussed above, and
his testimony regarding the imposition of a tardiness rule
parallels the testimony of Lamatinna, discussed infra. In
any event, I was most favorably impressed by de Thomas
as a credible witness. Moreover, by testifying as he did, he
ran the risk of incurring the displeasure of the Respondent
for whom he had worked for 12 years.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Marie Lamatinna, currently employed by the
Respondent, is an employee of 4 years' standing. She
signed her card on June 9. She testified to one
conversation with Klugman during the second week of
July during the plant's "vacation," through which she and
some other employees continued to work. In that
conversation, Klugman told her that if the Union came in
and "if it got slow, he could lay us off... that he could
stop the radio playing and not let us play it . . . and if we
came in late, he could fire us for it. And he couldn't lend
us any more money like he used to " On
cross-examination, Lamatinna admitted that she came to
Klugman a couple of weeks before the hearing and told
him that she wanted to withdraw her statement to the
NLRB, not because the statements were untrue, but
because "I was scared. It was jeopardizing my job."
Lamatinna also admitted that she had speculated in
conversations with other employees before Klugman had
made the foregoing statements to her, that the
Respondent could do these things if the Union came in.
Klugman denied telling Lamatinna anything about the
Union, but testified that he had heard her talking in that
vein during a coffeebreak. He also testified to a
conversation during vacation, in which she told him that
the Union wanted her to sign a statement that the
Respondent had offered her a bribe and that she had
refused.
I credit the testimony of Lamattina who impressed me
as an honest witness. Furthermore, some of the statements
which she testified that Klugman made to her are similar
to the statements which, according to other witnesses,
Klugman made to them. Klugman's statements to
Lamatinna were clearly violative of Section 8(a)(1), and I
so find.
Edna Gromalski is currently employed by the
Respondent and has been so employed for the past 6
years. She signed a union card on June 14. On or about
the time she signed the card, Klugman asked her whether
she was going to be "with the Union or with him."
Klugman added that was "not forcing the issue upon me,
it is up to myself whether I belong or whether I don't
belong." Gromalski did not answer him. Klugman also
asked her whether she knew who had signed cards, and
she replied that she did not know, but this was not true.
Klugman denied ever having such a conversation with
Gromalski. He testified that there was a conversation with
her concerning the Union, in which she told him that
based on her past experience at another place of
employment, she would not have anything to do with the
Union. Gromalski admitted to volunteering this
information, but claimed that she made it years before the
organizing campaign involved herein. Respondent attacks
the credibility of Gromalski, pointing out that in her
pretrial affidavit to the Board, dated August 25, she stated
that Klugman did not ask her if she signed a card. The
statement in her pretrial affidavit does not affect her
credibility, inasmuch as Gromalski did not testify that
Klugman had specifically asked her whether she had
signed a card. Her testimony in this regard was whether
she was going to be "with the Union or with him." As
between Gromalski and Klugman, I credit the testimony
of Gromalski.
Klugman's interrogation of Gromalski was violative of
the Act, and I so find. The fact that Klugman told her,
when he asked her whether she would be with the Union
or with him, that he was not forcing the issue and that it
was up to her whether she belonged did not meet the
safeguards required by Blue Flash Express, Inc., 109
NLRB 591, and the coercive effect of the inquiry is
evident from her failure to answer him Particularly is this
true when the inquiry was coupled with the further
question whether she knew who had signed cards-a
question which Gromalski answered untruthfully in the
negative. Blade-Tribune Publishing Company, 161 NLRB
1512, 1526, and cases cited at fn. 27, therein.
Josephine Messina, currently employed by Respondent,
is an employee of 4 years' standing. She signed her union
card on June 16. On several occasions between June
through August, Klugman asked her whether she was
"with him or against him." She testified, however, that
this question was not asked in the context of a union; that
Klugman never waited for a response and she made none;
that Klugman said it in a joking manner and she believed
him to be joking.
I am unable to find that the foregoing constitutes
interrogation within the meaning of Section 8(a)(1) of the
Act. The question was asked in a joking manner, and the
witness understood Klugman to be joking. See Geo.
Byers Sons, Inc, III NLRB 304, 306, fn 4, and
compare: A. P Green Fire Brick Co, 140 NLRB 1067,
1071; Sunshine Art Studios, Inc, 152 NLRB 565, 574
Employee Duane Nicholas, currently employed by the
Respondent, testified that he signed his union card on
June 21, and mailed it to the Union. He testified that
Klugman made derogatory remarks about the Union and
asked him whether he had signed a card. The Respondent
attacks Nicholas' credibility for the following reasons:
when Nicholas testified concerning the conversation with
Klugman he failed to mention the fact that Klugman had
asked him whether he had signed a card, and not until his
testimony had been refreshed by looking at his pretrial
statement, did he so testify. Respondent also points to an
inconsistency between his testimony and his pretrial
statement in that in his pretrial statement, Nicholas said
that he gave the card to a fellow worker after he had
signed it, whereas in his testimony at the hearing he stated
that he had mailed the card in. Also, with regard to
interrogation, the pretrial statement reads as follows:
Sometime in June, Mr. Klugman asked me in the
spraying room had I signed a Union card membership
card, and I told him no. I was not questioned about my
signing.
As indicated, the latter sentence was crossed out, and the
deletion was initialed by Nicholas.
In view of the foregoing, Respondent contends that
Nicholas' testimony is not credible. I do not agree. The
mere fact that the witness had to have his recollection
refreshed does not vitiate his testimony. It is, however, a
factor which I have taken into consideration in assessing
Nicholas' credibility. Nor is the fact that Nicholas'
testimony with regard to what he did with the card after
he signed it differs from his pretrial statement render his
testimony incredible. Indeed, it appears from the record
that his pretrial statement was erroneous in this regard, as
the card signed by him does bear a post mark, indicating
that it was mailed into the union headquarters. Nor does
his testimony become incredible because his pretrial
statement contained two inconsistent statements, one of
which was crossed out. The statement was not written by
Nicholas, but by a Board investigator, and if the latter
made a mistake in writing what Nicholas told him, such
an error would not reflect upon the credibility of the
deponent. I have taken all of the foregoing factors into
consideration and based upon my observation of Nicholas
while he was testifying, I am satisfied that he was an
honest witness , and I credit his testimony.
GENERAL STENCILS, INC. 115
Ann Giattino, currently employed by Respondent,
signed her union card on June 14. Approximately a week
later, she had a conversation with Klugman in which she
told him, "I understand when any place is slow in the
Union that generally the last person to come in is the first
one to go." She then pointed out to him that she was the
last female hired in the packing section. Klugman
confirmed her understanding, but pointed out to her that
he would take her back as soon as it was busy, because
she was a good worker. Since Giattino raised the issue
and solicited Klugman's opinion, I do not consider his
confirmation of Giattino's understanding regarding
seniority as a threat to her job security. Henry I. Seigel
Co., Inc., 143 NLRB 386.
E. The Alleged Violation of Section 8(a)(5)
1. The appropriate unit
All production and maintenance employees of
Respondent, employed at its plant, exclusive of guards,
watchmen and all supervisors as defined in Section 2(11)
of the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
2. Composition of the unit
The Union made its initial demand for bargaining on
June 23, and repeatedly requested bargaining from time to
time thereafter. During the week ending June 28,
Respondent had a maximum of 36 employees in the
appropriate unit. Thereafter, between the weeks ending
July 5 and August 30, the maximum number of employees
in the appropriate unit varied between 17 (during the
vacation period) and 36 employees. The General Counsel
contends that of the number of employees listed above,
the following should be excluded: Eugene Berutti,
Anthony De Paoli, William George, and Harry Keshner.
The General Counsel contends that the four named
employees are irregular, part-time employees and do not
have a substantial community of interest in the wages,
hours, and other terms and conditions of employment of
the unit employees. The record substantiates the General
Counsel's contention. Thus, all of the four named
employees had full time, day time jobs away from
Respondent; none of them worked for Respondent during
the day and weekdays, but in the evenings (after the
production and maintenance employees had gone for the
day), and infrequently on Saturdays. Berutti performs
repairs on electronic components; De Paoli welds and
fabricates racks and does general plumbing work; George
does art work; and Keshner, typesetting and compositing.
As to the amount of hours spent in Respondent's plant b)
each of the foregoing, the record reveals the following:
Week Ending
Berutti
Hours Worked
De Paoli George Kershner
June 7 0 0 0 4 3/4
June 14 0 0 0 8 1/4
June 21 7 8 1/4 3 1 /4 10
June 28 6 112 7 1/4 0 9
July 5 6 1 1/4 0 6 1/4
July 12 0 2 0 3 3/4
July 19 2 1 0 5 1/2
July 26 0 4 1/2 3 6 1/2
Aug. 2 0 0 0 6 1/4
Aug. 9 0 4 2 1/2 5
Aug. 16 0 0 0 2 3/4
.23 0 0 0 8
Aug. 30 10 1/4 0 0 8
Furthermore, the four employees are treated differently
by the Respondent in the following respects: The
production and maintenance employees are given 12 paid
holidays each year and are given a paid vacation each
year. None of the four employees named above is given
any paid holidays, and only one, Keshner, is given a paid
vacation. Also, Respondent maintains a Blue Cross plan
under which the employees are eligible for coverage after
3 months' employment, with the Respondent paying the
full premium. None of the four named employees has
applied for coverage, apparently because they are covered
in their principal place of employment. All production and
maintenance employees are furnished with fresh uniforms
by Respondent on a weekly basis, free of charge. None of
the four named employees is provided with company
uniforms.
In view of all the foregoing, I find and conclude that
Berutti, De Paoli, George, and Keshner were casual
employees and should be excluded from the appropriate
unit. Blade-Tribune Publishing Co., 161 NLRB 1512,
1520, and cases cited therein. I further find that on June
23, when the Union made its initial demand, the
appropriate unit consisted of 32 employees.'
'As is found infra, the Union on June 23 , had in its possession valid
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Union's majority
By June 23, when the Union made its initial demand
for recognition and bargaining it had authorization cards
from 24 employees in the appropriate unit, as follows:
Hernandez, Collins, Maldonado, Pena, Baldwin, Mandia,
Kretschmer, de Thomas, Lamattina, Gromalski, Dusling,
Nicholas, Giattino, Messina, Perez, Felicetti, Vlismas,
Glassford, Ramirez, Cruz, Madero, Brennan, Colon, and
Torres.' Respondent attacks the validity of the
authorization cards as a group, on the ground that signers
were told that they would not have to pay an initiation
fee. The argument is based upon the somewhat ambiguous
testimony of employee Thomas Felicetti who testified
"that the people who joined now don't have to pay no
initiation. The people after that who do come in have to
pay initiation." The testimony of International
Representative Pohmer is more reliable. Pohmer testified.
Q. On June 22, at that meeting, did you say anything
to the employees about initiation fees being waived for
those who signed now?
A. Not for those who signed now. I made a general
statement I usually make, everybody would pay dues.
As far as initiation fees, there would be none for
anybody until after a signed contract, in effect. And
that would only apply to those people hired after the
contract was signed.
Q. Did you say anything about the fact that if they
signed a card, they wouldn't have to pay initiation fees?
A. I didn't tie one to the other.
Based upon Felicetti's testimony which I find unreliable
in this regard, Respondent relies upon three decisions
which are inapposite. Citing Teletype Corporation, 123
NLRB 1594, where the unions paid employees money for
attending meetings, Respondent argues that the waiver of
initiation fees is no more than a bribe to assist in
organizing and as such interfered with "the free and
untrammeled choice by the voters." The analogy is
farfetched and, in any event, is contrary to established
Board law. Respondent also relies on N.L.R B. v. Gorbea,
Perez & Morrell, 328 F.2d 679 (C.A. 1). That case is
factually distinguishable from the instant proceeding, in
that the union promised to waive initiation fees, when, in
fact, there was no initiation fee to be waived. See the
discussion of the Gorbea case by the Court of Appeals for
the Second Circuit in Amalgamated Clothing Workers of
America v. N.L.R.B., 345 F.2d 264, 267. See also Edro
Corporation, etc , 147 NLRB 1167. Respondent also relies
upon the Board's decision in Lobue Bros., 109 NLRB
1182. However Lobue was explicitedly overruled by the
Board in Dit-MCO, Incorporated, 163 NLRB No. 147. In
Fabricators, Incorporated, 168 NLRB No. 21 the Board's
most recent holding on this subject, the validity of union
authorization cards was upheld against the contention that
they were obtained by a promise of to waive initiation
fees.
Respondent next attacks the validity of specific
authorization cards as follows:
Respondent contends that Rivera's card should not be
counted because there is no evidence that his card was
signed and submitted on June 23. Furthermore, it bore a
authorization cards from 24 employees in the appropriate unit . This was a
clear majority, even if contrary to the foregoing, the four employees named
above are found to be members of the appropriate unit.
By stipulation signed after the close of the hearing herein, the parties
stipulated that Henry Maldonado and Hugh Glassford are to be included
as employees of Respondent employed in the appropriate unit on and after
June 14, 1967. The stipulation is hereby received in evidence.
postage due date of July 5 and was not submitted to the
Board with the other cards. I have previously pointed out
that Rivera's card cannot be counted toward a majority
on June 23 . However , since the Union ' s demand was a
continuing one, it should be counted toward a majority
after July 5. The General Counsel does not contend
otherwise.
Respondent contends that Baldwin 's card should not be
counted because he testified that he was told by Union
Representative Pohmer that the card was only to secure
an election . Baldwin appeared to be a confused witness.
Nevertheless , it is clear from a reading of his testimony
that the "vote" that Baldwin was talking about was a vote
to be taken at a union meeting. Patently, Baldwin was not
referring to an NLRB election . Furthermore , the record is
clear that Pohmer did not suggest that the cards might
lead to an election . Indeed , the opposite is the fact.
Several employees testified that Pohmer made it quite
clear that the authorization cards would be used to
demand recognition and not an election . In any event,
even if Baldwin 's testimony is construed most favorably to
Respondent, it falls for short of invalidating the card, for
nowhere does it appear that Pohmer represented to
Baldwin that the cards would be used solely for an
election . N.L.R.B . v. Cumberland Shoe Corporation, 351
F.2d 917, 920 (C. A. 6); Amalagamated Clothing Workers
of America v. N.L.R B., 371 F.2d 740, 745 (C.A.D.C.)
enfg. 156 NLRB 511. Baldwin 's card should therefore be
counted
Respondent contends that Kretschmer 's card should not
be counted because as early as May, he had been planning
to leave Respondent' s employ. The contention must be
rejected . Kretschmer was regularly employed by
Respondent when he signed the authorization card.
Squarely in point is the case of Personal Products
Corporation , 114 NLRB 959 , where an employee's vote
was challenged on the ground that prior to the election
she had given notice to the employer of her intention to
terminate her employment two days after the election. The
Board said : "The Board has held that the fact that an
employee intends to quit after an election , and does in fact
quit , does not affect his eligibility to vote." (Id. at p. 961).
See also Otarion Listener Corp ., 124 NLRB 880, 881;
Blade-Tribune Publishing Co., 161 NLRB 1512, 1521.
Kretschmer ' s card should therefore be counted.
Respondent also attacks the validity of the card signed
by Hernandez who left Respondent' s employ on July 9
and moved to Pennsylvania . Respondent argues that
Hernandez was undoubtedly planning to leave by June 23.
The argument is purely speculative. In any event,
Hernandez was regularly employed by the Respondent on
June 23, and the rationale applicable to Kretschmer's card
is fully applicable here. Hernandez ' card should therefore
be counted toward a majority.
Respondent next challenges the authorization cards
signed by Dusling, Pena and Felicetti who signed their
cards at a union meeting at which the union representative
requested a show of hands of those who had not signed
cards. These employees , plus another , were the only ones
who raised their hands . They subsequently signed at this
meeting. Respondent argues that these three employees
were under pressure and that this is a far cry from the
"laboratory conditions" of a Board election and the
privacy and freedom of a ballot booth . Respondent's
contention is without merit. The testimony of Dusling
("The only reason I signed was because I figured that
there was a majority . That's the only reason .") and of
Pena ("Everyone wanted an organization or union .") fall
GENERAL STENCILS, INC.
far short of any representation by the Union that a
majority had signed. But even if there had been such a
representation to them, it would not invalidate the cards,
as there was no showing by the Respondent that such a
representation was false. Ottenheimer and Company, 144
NLRB 38, 39; Merrill Axle and Wheel Service, 158
NLRB 1113, 1114-15. Accordingly, the cards of Dusling,
Pena, and Felicetti should be counted toward the Union's
majority
The Respondent also challenges the cards signed by
Glassford, Ramirez, Cruz, Madero, Brennan, Colon, and
Torres, because they did not appear and testify at the
hearing. Glassford's signature was authenticated by Union
Representative Pohmer who testified that Glassford signed
the card in his presence. This was an appropriate method
of authentication. Colson Corporation v. N.L R B., 347
F.2d 128, 134 (C.A 8); Indiana Rayon Corporation, 151
NLRB 130, 135- 136. Glassford's card should therefore be
counted toward the Union's majority. The cards of the
remaining six employees mentioned above were admitted
after I had compared the signatures on the cards with the
signatures of those employees on their "W-4" forms which
had been subpoened from the Respondent. The signatures
on the authorization cards were strikingly similar to the
corresponding signatures on the W-4 forms, appeared to
be genuine, and I so stated on the record. Nevertheless, I
stated that the Respondent was free to adduce
countervailing evidence, by way of a handwriting expert or
otherwise, and that I would consider such testimony in
determining the genuineness of the signatures. However,
the Respondent offered no evidence whatsoever regarding
the signatures of these six employees. Accordingly, I find
and conclude that the authorization cards signed by the
above-named employees should be counted toward the
Union's majority. N L R B. v. Philamon Laboratories,
Inc 298 F.2d 176, 180 (C.A. 2), cert. denied 370 U.S.
919; Combined Metal Mfg Corp., 123 NLRB 895,
896-897; Aero Corporation, 149 NLRB 1283, 1287-89,
Heat Timer Corporation, 124 NLRB 1256, 1270-71; I.
Taitel and Son, 119 NLRB 910, 912
4. Respondent's good-faith doubt as to the Union's
majority
Klugman's two earlier experiences with union demands
for recognition had bereft him of confidence in
authorization cards as indicating the wishes of his
employees. This was the third time that union agents had
approached him and claimed majority status on the basis
of signed cards, and demanded recognition On each of
the two prior occasions, Klugman had refused recognition,
insisting upon an NLRB election. On each of the two
prior occasions, elections had shown that the union had
not been supported by a majority of the employees. The
latter of these occasions had taken place just a year
before. The first, had involved a demand by the union
involved in the instant case. Under the circumstances,
Respondent had a substantial and reasonable ground for
doubting the validity of a majority showing by
authorization cards Hercules Packing Corporation 163
NLRB No. 35; Shelby Williams of Tennessee, Inc., 165
NLRB No. 108.
Indeed, Klugman's doubt was reinforced by Union
Representative Pohmer's statement at the initial demand
for recognition on June 23. When Klugman insisted that
he wanted an election, Pohmer admittedly said that there
would be no election; that the Union could not win the
election.'
117
In addition to the foregoing, Klugman had heard a
number of his employees expressing antiunion sentiments.
Thus, he testified that he overheard employees Vlismas,
Gromalski, Messina, and Lamattina speaking against the
Union. This is partially confirmed by Lamattina and by
Gromalski who admitted telling Klugman that she was
against unions. Klugman testified further that Kretschmer
had told him of Union Representative Pohmer's surprise
at hearing of the number of holidays provided by the
Company and had called the Union "a bunch of phonies."
This is partially corroborated by Kretschmer, who
admitted telling Klugman of Pohmer's surprise at the
number of holidays provided the employees by the
Respondent. Klugman testified further that Mandia had
told him that he did not know what to do about the
Union and asked his advice. Mandia admittedly asked
Klugman what he thought about the Union.
In sum, I find and conclude that the Respondent had a
good-faith doubt as to the Union's majority when the
Union demanded recognition on the basis of the
authorization cards
Since I have found that the Respondent did engage in
unfair labor practices in violation of Section 8(a)(1) of the
Act, the question arises whether the Respondent's conduct
vitiated Respondent's demonstrated good-faith doubt of
the Union's majority. In approaching this question, I am
mindful of the Board's admonition in Cameo Lingerie,
Inc., 148 NLRB 535, at p. 538:
But the question whether an employer who commits
violations of Section 8(a)(1) also intends to undermine
the union's majority or otherwise to defeat the
employees' unionization may not be answered
mechanically; it must turn upon a consideration of all
relevant circumstances.
Similarly, in the more recent case of Hammond &
Irving, Incorporated, 154 NLRB 1071, 1073, the Board
said:
The Board has long held that an employer may insist
upon a Board election as proof of a union 's majority if
it has a reasonable basis for a bona fide doubt as to the
union 's representative status in an appropriate unit. If,
however, the employer has no such good-faith doubt,
but refuses to bargain with the majority representative
of its employees because it rejects the
collective-bargaining principle or desires to gain time
within which to undermine the union and dissipate its
majority, such conduct constitutes a violation of Section
8(a)(5) of the Act. In determining whether the
employer's action was taken to achieve either of the
said invalid purposes, the Board considers all the
surrounding circumstances as well as direct evidence of
motivation. Absent such direct evidence, where
extensive violations of the Act accompany the refusal to
grant recognition, they evidence the employer's unlawful
motive and an inference of bad faith is justified. .
While unfair labor practices committed at or about the
time of an employer's refusal to bargain often
demonstrates the bad faith of the respondent's position,
not every act of misconduct necessarily vitiates the
respondent's good faith.
'The effect of the foregoing admission is not negated by the reason
stated by Pohmer in a subsequent conversation with Klugman , in which he
said that the reason he felt that the Union could not win an election was
the information given to him by the employees , to the effect that it was
impossible to win an election because of the tactics of the Company, viz,
implied threats, giving people extra holidays , raises under the table, and all
kinds of pressure
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To the same effect, see Clermont s Inc 154 NLRB
1397, 1400-01, Caldwell Packaging Company 125 NLRB
495, 496
After considering the entire record, I find and conclude
that Respondent's unfair labor practices did not vitiate its
good-faith doubt as to the Union's majority This is not a
case where there is no direct evidence on the issue whether
the employer had a good-faith doubt as to the Union's
majority, and where the violations of Section 8(a)(1) are
relied upon to infer a lack of good-faith doubt Rather,
the Respondent has amply demonstrated its bona fide
doubt, based orly on its two earlier experiences in the
same context, but also fortified by Pohmer's admission
that the Union could not win an election, as well as by
antiunion statements of various employees See The
Walmac Company 106 NLRB 1355, 1357
The General Counsel relies upon Galbreath Bakery
Inc 163 NLRB No 41, and Fabricators Incorporated
168 NLRB No 21, in which the Board, although adhering
to the principles enuciated above, nevertheless found that
the unfair labor practices demonstrated the employer's
lack of good-faith doubt I find these cases
distinguishable In the instant case the Respondent's doubt
was as to the existence of the Union's majority, while in
the cases relied upon by the General Counsel, the
employer's doubts were as to the appropriateness of the
unit, which the Board held in Southland Paint Inc 156
NLRB 22, 23, "is not a defense to an otherwise
meritorious charge of refusal to bargain " See, also,
Galbreath Bakery Inc supra at fn 7
In sum, I find and conclude that the Respondent had a
good-faith doubt as to the Union's majority and that the
violations of Section 8(a)(1) did not vitiate the
Respondent's good-faith Accordingly, insofar as it alleges
a violation of Section 8(a)(5) of the Act, the complaint
should be dismissed
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of General Stencils, Inc , set forth in
section IV, above, occurring in connection with the
operations of the Respondent set forth in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof
VI THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act
[Recommended Order omitted from publication