Henry Spen & Co., Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1964

150 N.L.R.B. 138 (N.L.R.B. 1964)

138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henry Spen & Company, Inc. and Local 854, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Case No. 2-CA-9621. December 15, 1964
DECISION AND ORDER
On July 27, 1964, Trial Examiner Louis Libbin issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices, and recom-
mended that the allegations of the complaint pertaining thereto be
dismissed. Thereafter, the General Counsel and the Respondent
filed exceptions to the Trial Examiner's Decision, with supporting
briefs; the General Counsel filed a brief in support of part of the
Decision; and each party filed a brief in answer to the exceptions
filed by the other.
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 [Chairman McCulloch and Members Leedom and Jenkins].
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 recom-
mendations of the Trial Examiner, with the following modifications.
1. We agree with the Trial Examiner that the Union had obtained
valid authorization cards from a majority of the employees in the
appropriate unit by October 15, 1963, the date of its oral request for
recognition. However, even if the cards of Morales (whose card
the Trial Examiner included in determining the existence of a
majority) and Lugo (whose card the Trial Examiner did not evalu-
ate because he found it not to be necessary to the majority) should
be considered to have been invalidly obtained due to misrepresenta-
tions, the valid card signed by Torruellas on October 16 or 17,
1963, may properly be counted to give the Union a majority as of
1 The following inadvertent errors in the Decision are hereby corrected: In section III, B,
second paragraph, first sentence , the date should read "October 11" ; in section III, E, 3, c,
third paragraph , third sentence, the date should read "October 15".
150 NLRB No. 21.
HENRY SPEN & COMPANY, INC. 139
the date it was signed. Since the Union's request for recognition
was clearly of a continuing nature, the Respondent's refusal to bar-
gain would have begun no later than October 16 or 17, 1963?
2. Like the Trial Examiner, we find that the totality of the
Respondent's conduct subsequent to the Union's demand is indica-
tive of bad faith, and that its failure to accord recognition to the
Union violated Section 8 (a) (5) of the Act .3 In so finding, we do
not consider it necessary to pass upon the Trial Examiner's more
particularized conclusions that the Respondent "could not in good
faith refuse" to accept the Union's offer of a quick election by an
impartial agency, or that Respondent's insistence upon either the
submission of membership cards or a Board election was "clearly
arbitrary."
3. The Trial Examiner found that Respondent's delay in process-
ing a loan application of a striking employee constituted a reprisal
against the employee's protected activity, in violation of Section
8 (a) (1). In our view, the relevant evidence is insufficient to sup-
port the inference drawn by the Trial Examiner that the delay in
approving the loan was for a retaliatory purpose. Accordingly, we
set this finding aside.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order the Order rec-
ommended by the Trial Examiner, and orders that the Respondent,
its officers, agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order, with the fol-
lowing modifications :
1. Delete subsection 1(a) of the Recommended Order, and redes-
ignate subsections 1(b) and 1(c) as 1(a) and 1(b), respectively.
2. Delete the final sentence of the Recommended Order and sub-
stitute the following :
"IT IS FURTI-TER ORDERED that the complaint, insofar as it alleges
that the Respondent violated the Act by conduct other than that
found to be violative herein, be, and it hereby is, dismissed."
2 Scobell Chemical Company v . N.L.R.B., 267 F. 2d 922 (C.A. 2 ). Unlike his colleagues,
Member Leedom relies only on the findings of the Trial Examiner as to the Union's ma-
jority status
3 Subsequent to the hearing in this case , Respondent moved that the Board take notice
of a petition , allegedly signed after the hearing by most of its employees , which declares
that the employees do not wish to have the Union as their bargaining agent. On the
basis of the petition, Respondent requests that the Trial Examiner 's 8(a) (5 ) findings be
vacated, or , in the alternative, that the hearing be reopened to permit the introduction of
the petition into evidence. The request is hereby denied. The fact that the employees
may have subsequently revoked the Union's authority to act in their behalf can have no
effect on the need for a bargaining order in this case, since , at the time of its request for
recognition , the Union validly represented a majority of the employees . Franks Bros.
Company v . N L.R B , 321 U.S. 702.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Delete the third indented paragraph in Appendix A attached to
the Decision, reading : "WE WILL NOT take economic reprisals against
any employee for engaging in the protected activity of a strike or for
engaging in any other protected concerted activity."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on October 16 and December 24, 1963, by Local 854, Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, herein called the Union, the General Counsel of the National Labor Relations
Board , by the Regional Director for Region 2 (New York, New York ), issued his
complaint , dated December 19, 1963 , against Henry Spen & Company, Inc., herein
called the Respondent . With respect to the unfair labor practices , the complaint, as
amended at the hearing, alleges , in substance , that: ( 1) on October 14, 1963,
Respondent discharged 11 named employees , and thereafter failed and refused to
offer to reinstate them because of the union and concerted activities of various
employees; (2) since October 14, 1963, Respondent has refused , upon request, to
recognize and bargain with the Union which was designated as bargaining represen-
tative by a majority of the employees in a specified appropriate unit; (3) from
October 15 to November 1, 1963 , Respondent 's employees went out on a strike,
which was caused and prolonged by Respondent 's unfair labor practices ; (4) during the
strike , agents of Respondent engaged in reprisals against its employees because of
their strike and concerted activity ; and (5 ) by the foregoing conduct , Respondent
violated Section 8(a)(1), (3 ), and (5 ) and Section 2(6) and (7) of the National
Labor Relations Act, as amended , herein called the Act. In its duly filed answer, as
amended at the hearing, Respondent denies the appropriateness of the unit alleged
in the complaint, the majority representative status of the Union , and all unfair
labor practice allegations ; it affirmatively avers that the 11 employees were laid off
for economic reasons and that its refusal to recognize and bargain with the Union
was based on a good -faith doubt as to the Union's majority representative status.
Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin
at New York, New York, at various intervals between February 10 and March 17,
1964 . All parties were represented by counsel , appeared at the hearing , and were
given full opportunity to examine and cross -examine witnesses , to introduce rele-
vant evidence , to argue orally , and to file briefs . On March 15 , 1964, the General
Counsel and the Respondent filed briefs , which I have fully considered. For the
reasons hereinafter indicated , I find that Respondent has violated Section 8(a)(1)
and (5 ), and has not violated Section 8(a) (3 ), of the Act.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent, a New York corporation , maintains plants in Brooklyn, New
York, and Butler, New Jersey, where it is engaged in the manufacture , sale, and
distribution of tow trailers and related products . During the year preceding the
issuance of the complaint , a representative period of its annual operations , Respond-
ent manufactured, sold , and distributed products at its Brooklyn , New York, plant
and furnished services, valued in excess of $100 ,000, which had a substantial impact
on the national defense.
Upon the above admitted facts, I find, as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the undisputed evidence in the record clearly shows, and I
find that Local 854, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, the Charging Party in the instant case, is a
labor organization within the meaning of Section 2(5) of the Act.
HENRY SPEN & COMPANY, INC. 141
III. THE UNFAIR LABOR PRACTICES
A. Background 1
1. Prior organizational efforts
In December 1960, a different local of the Teamsters attempted to organize
Respondent's employees, and on December 8, 1960, filed a representation petition
with the Board for an election among the employees at the Brooklyn, New York,
plant (2-RC-11146). At a hearing held before the Board on this petition on Janu-
ary 9, 1961, the Respondent contended that the"only appropriate unit was one com-
prising the employees of both the Respondent's Brooklyn and Butler, New Jersey,
plants. On April 4, 1961, the Board issued its decision, in which it rejected Respond-
ent's contention and found appropriate a unit confined to the production and mainte-
nance employees of the Brooklyn plant. Thereafter, an election was held and the
petitioning union lost.
2. The Shop Committee; Respondent's relationship therewith
Sometime after the 1961 election, Respondent recognized a Shop Committee,
herein sometimes called the Committee, as the representative of the, production and
maintenance employees at the Brooklyn plant only.2 The Shop Committee comprised
a group of five employees, elected by the production and maintenance employees at
the Brooklyn plant, and dealt with Respondent with respect to wages, hours, and
working conditions, thus constituting it a labor organization within-'the meaning of
the' Act. Respondent recognized the Shop Committee under the following circum-
stances: Some employees told Respondent that 80 percent of the employees had
voted by secret ballot that they wanted the Shop Committee to represent them.
Respondent did not ask to see the ballots or for any other proof but, relying on this
oral statement, recognized the Shop Committee as the representative of the Brooklyn
plant production and maintenance employees. Thereafter, the employees adopted a
set of bylaws, a copy of which they gave to Respondent. Executive Vice President
Brinster testified that when the bylaws were submitted, "we looked them over, sat
down together and reviewed them and said they appear to be pretty sensible. It is
okay with us to operate under these bylaws. We have' no objection:" Thereafter,
Respondent met with the Shop Committee about once a month and took up matters
pertaining to wages, hours, and working conditions.
Sometime in 1963 the Shop Committee found that the employees had lost faith
in the Committee as an effective bargaining agent. Shop Committeeman Murphy
resigned in July 1963, and Vice President Grande automatically assumed the position
of the presidency. Sometime between July 15 and the first part of September, the
Shop Committee met with Brinster and Detwiler, Respondent's vice president and
assistant general manager , respectively. The Committee pointed out that the employ-
ees had no faith in the Committee and that they planned to dissolve the whole Com-
mittee, and asked if Brinster would talk to the employees "and show reassurance that
the Committee 'does have a leg to stand on in the Shop." Brinster agreed to do so.
Shortly thereafter, Brinster called a meeting of all'the,production and maintenance
employees at the'Brooklyn plant. He tried to "build up the Committee." He prom-
ised that he was trying to work out the benefits they were seeking but pointed out
that it would take time. He assured them that the Committee did represent the
employees, that the Committee had a function, that he. has respect for the Commit-
tee and really believes in it, that he wants to make a go of'it, and that he feels that
to let something like that "go down the drain" after it had been built up "would be a
shame."
1 Unless otherwise indicated, the findings in this section are based on credited testimony
and evidence which is either admitted or undenied.
2 Lawrence Brinster , Respondent 's executive vice president, testified at 'one point that
the Shop Committee was organized before the 1960-61 organizational efforts of the Team-
sters Local. At another point, he testified that the first election of the Committee was
held in June of either 1960 or 1961. However, in view of the testimony of two committee-
men and the 1961 Board' s decision which states that there was no bargaining history at
the Brooklyn plant, I find that Brinster was in error to the extent that his testimony
contradicts the findings in the text. ,
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, the Committee tried to function. In September a meeting was called
to elect new committeemen. Only about 50 percent of the employees showed suffi-
cient interest to attend the meeting. Of those who attended, none would accept any
nominations. President Grande got disgusted and walked out. Thereafter, when
Assistant Plant Manager Detwiler asked Grande if the Committee was making any
headway with the men, Grande reported what had occurred at the meeting and
explained that he "had had enough" and did not "want any part of it." Detwiler
urged Grande to try again and see what he could salvage and "not let this thing
just go off and forget about it." Grande made a few further attempts "but they
were futile." Thereafter, Detwiler continued to ask Grande how he was making out,
and Grande replied, "Not so good." About October 7 or 8 he asked Grande whether
they had elected a Committee and when they could get together, pointing out that
there were items he would like to discuss. Grande replied that he felt it was futile,
that he had made a number of attempts to get the Committee together, and that the
members were not interested.
Brinster also inquired of the Committee members as to whether they were getting
any response from the employees, and was given a negative response. On Wednes-
day, October 9, Brinster asked Committeemen Grande and Massaro about the status
of their Committee and whether they were going to elect officers and be active, stat-
ing that there were things he wanted to discuss with them but he did not know
whether they were representing the men at this point. They both voiced the opinion
that the Committee was dead because they could not get enough employees together
to elect officers or representatives. At that point, Brinster saw Jack Murphy, the
former president, approaching, and asked Murphy if he knew the feeling of the men
in regard to the Committee. Murphy replied that he did not but that he could find
out. Brinster told Murphy to find out and to inform him at an early date whether
or not the Committee was functioning. On Friday, October 11, Brinster met Murphy
in the shop and asked if he had an answer about the Committee and whether they
could have a meeting. Murphy replied that he would have to ask the committeemen
and see how things worked out with them and that perhaps they could have a meeting
in about 2 weeks. Brinster then asked if it was Murphy's opinion that there was no
Committee existing. Murphy replied, "Well, if that's the way you want to read it,
that's the way it is." Brinster then asked Grande and Massaro if they had any dis-
cussions with the men about the Committee. They replied that there did not seem
to be any interest in the Committee and reaffirmed their opinion of the preceding
Wednesday that the Committee was dead for all intents and purposes.
B. Union organizational campaign; summary of relevant conduct
Self-organization among Respondent's production and maintenance employees at
the Brooklyn plant began again in the week of October 7, 1963. About 5 p.m. on
Tuesday, October 8, an employee committee, consisting of former Shop Committee
President Murphy, Prizzi, and Fenimore, met with Union President McDonough and
other union representatives at the Ad Way bar, located near the Brooklyn plant, to
discuss the organization of the Brooklyn plant employees. The next day, the union
representatives left union authorization cards for the employees to distribute. Begin-
ning with Thursday, October 10, the employee committee began soliciting employee
signatures to the union authorization cards. Murphy, Prizzi, and Fenimore were the
only employees who engaged in such solicitation; they admittedly tried to keep the
union campaign secret and solicited in a secretive manner. However, on the very
first day, October 10, Foreman Mike Picolla, hereinafter found to be a supervisor
within the meaning of the Act, told Arthur Terry, an employee in the fabricating
department over which Piccola had jurisdiction, to make sure he knew what he was
doing before signing a union card if he intended to sign one. Terry replied that he
had a mind of his own and "if I am going to sign it I am going to sign it." s
On Friday, November 11, the employee organizing committee gave Union Presi-
dent McDonough the signed union cards which they had collected. He told the
employee committee that he believed he had signed cards from "a sufficient majority
of the employees" and that he would send a telegram to Respondent requesting "a
meeting to show recognition of the employees." The employees stated that no steps
should be taken which would result in a long delay such as occurred in the 1960-
1961 campaign, that this time they "wanted it quick" and to "get it done fast," and
recommended calling an immediate strike. They finally decided to call a meeting
after work on Monday, October 14, of all the employees to find out how the employ-
ees felt.
3 The findings as to this conversation are based on the credited and undenied testimony
of Terry.
HENRY SPEN & COMPANY, INC. 143
Early Monday afternoon, October 14, the Union sent Respondent a telegram,
stating that "we represent your employees" and requesting "an immediate appoint-
ment to negotiate a labor contract." That same afternoon, Respondent "laid off"
11 employees, under circumstances hereinafter detailed. Vice President Brinster
also telephoned the Union's office that afternoon and read to McDonough the tele-
gram which Brinster was sending to the Union, in which he acknowledged receipt of
the Union's telegram and advised it was being forwarded to Respondent's attorney
who will contact the Union's office.
After work that day, October 14, the employees met with the union representatives,
as planned the previous week. Also present were a majority of the laid-off employees.
About 45 employees were present, including the laid-off employees. The layoffs were
discussed. Some employees expressed the view that the layoffs were because of the
Union's telegram received by Respondent; others stated they believed the layoffs were
due to work being slack; and still others expressed different opinions. McDonough
stated that the Union would try to get the jobs back for the laid-off employees, and
explained the benefits of unionization and the procedure of organizing, including the
alternatives of petitioning for an election versus strike action. The employees
informed McDonough of the 5-month delay involved when a different union had
petitioned for an election in the 1960-61 campaign; they expressed the view that
because of the layoffs and the delay involved in a petition for an election of the type
they had in the 1960-61 campaign, a strike was necessary. The employees unani-
mously voted to strike the next day.
The next morning, Tuesday, October 15, as the employees came to work, the strike
was in progress. Employees picketed with signs, stating that employees of Respondent
were on strike and giving the Union's name. Strike headquarters was set up in the
backroom of the Ad Way bar, a block from the Brooklyn plant. That afternoon, at
McDonough's request, Brinster and Respondent's President Spen met with union rep-
resentatives and an employee committee. McDonough claimed that the union repre-
sented a majority of Respondent's employees and requested a meeting to negotiate a
contract. Respondent's representatives and attorney refused to recognize or agree to
meet with the Union under the circumstances hereinafter detailed. During the period
of the strike, which lasted until November 1, further efforts of the Union to obtain
recognition and a meeting date were unsuccessful, as hereinafter more fully detailed.
By November 1, 1963, all but one of the strikers had returned to work.
C. The issues
The principal issues in this case are whether (1) Respondent discriminated with
respect to the hire and tenure of employment of the 11 named employees who were
"laid off" on October 14, 1963, in violation of Section 8(a)(3) and (1) of the Act,
(2) Respondent's conduct on and after October 15 amounted to a refusal to bargain
in violation of Section 8(a)(5) and (1) of the Act, and (3) during the strike
Respondent engaged in conduct independently violative of Section 8(a)(1), of the
Act. Also involved are issues as to (1) the appropriateness of a unit confined to the
production and maintenance employees of the Brooklyn, New York, plant, (2) the
supervisory status of three named foremen, and (3) the validity of certain authoriza-
tion cards for the purpose of determining the Union's majority representative status
at relevant times.
D. Alleged discrimination with respect to hire and tenure of employment
The complaint alleges that "on or about October 14, 1963, Respondent discharged"
11 named employees, that since that date Respondent has failed and refused to rein-
state, or offer to reinstate, said employees to their former or substantially equivalent
positions of employment, and that Respondent took this action "because various of
its employees joined and assisted the Union and engaged in other concerted activity
for mutual aid and protection" and "in order to undermine the Union and to destroy
its majority status among the employees." Respondent's answer denies these allega-
tions and avers that "the decision to `lay-off' said eleven employees was based solely
on the lack of sufficient work on hand and available to said employees."
1. Respondent's case
Respondent put in a strong case in support of its position. This consisted of the
testimony of Executive Vice President Brinster and Assistant General Manager Det-
wiler, accompanied by visual charts prepared from Respondent's records, which in
substance is as follows:
775-692-65-vol 150--11
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 95 percent of Respondent's business is derived from contracts with the
various governmental agencies . As early as April 1963, Respondent began to see a
trend in its business indicative of a substantial drop in new orders from the various
governmental agencies. In addition, production on other jobs was held up because
of the many changes ordered by the Government procurement office. However,
Respondent was anxious to keep the work force intact in anticipation of receiving
orders on jobs with respect to which bids were outstanding and of approvals on jobs
as to which prototypes and samples were in progress or had been submitted. One of
the jobs which Respondent was extremely anxious to get was an order for 378 muni-
tions trailers. Respondent had first bid on this job in March or April, but it turned
out that Respondent was not the lowest bidder. However, in the latter part of August
when a revised price was requested, Respondent had an opportunity to submit a new
bid at a lower price and was hopeful of obtaining the job. This was regarded as an
ideal job for the plant because it would afford work for every department, including
fabricating, welding, assembly, painting, machine shop, and shipping.
By the middle of September, it became apparent that if Respondent did not get the
munitions trailer job and did not get some of the prototypes which were in process
completed and accepted within the next month or so, there would have to be a layoff
of about 16 or 17 men. As it turned out, Respondent failed to achieve either objec-
tive. Meanwhile, employees were kept busy on maintenance, cleanup, and other
nonproductive work. On Monday, October 7, Brinster received a memorandum
from Rainer, the contract officer in the procurement office in San Antonio, Texas
(from which the munitions trailer order would emanate), stating that the require-
ments for the munitions trailer job had been canceled. At Brinster's directions,
Respondent's Sales Engineer Diffendorfer immediately contacted Rainer in San
Antonio and that same day left on Brinster's desk a note, stating that he had talked
to Rainer, that the latter indicated a possibility of negotiating with Respondent if the
requirement continues, and that "we'll know more by Friday."
When it thus appeared that the munitions trailer job was fading out of the picture
and the maintenance and cleanup work was running out, meetings were held to
discuss the necessity for the reduction in the work force. A preliminary discussion
to that effect was'held on Wednesday, October 9, and a special meeting was called
for Friday, October 11, "to discuss exactly what was the situation at that moment."
Detwiler instructed Plant Superintendent Hausen to come to the Friday meeting
prepared to make recommendations as to the number of men not needed to carry
on the available work.
The Friday meeting consisted of a morning and an afternoon session, and was
attended by Brinster, Detwiler, Hausen, and Foreman Cruz. Early that morning,
Brinster instructed Sales Engineer Diffendorfer to telephone the contract officer in
San Antonio and get the final word on the munitions trailer job. In the morning
session , a discussion was held to determine how many men would have to be laid
off if the final word on the trailer job was negative. The figure recommended at that
session was 15 or 16. Brinster asked Hausen and Cruz to make a careful review of
everything that was left to be done so as to lay off the least number of people. The
afternoon session lasted from 2 to 3 o'clock. When the meeting adjourned, Diffen-
dorfer was still trying to make contact with San Antonio.
The working hours are from 8 a.m. to 4:30 p.m. Not having heard from Diffen-
dorfer by 4:30 p.m., Brinster informed Detwiler that if the layoff became necessary,
it would obviously have to be set up for Monday morning. He told Detwiler to have
another meeting set up for Monday morning, October 14, and to instruct Hansen and
Cruz to have a layoff list prepared for review at the Monday morning meeting. As
Brinster was preparing to leave his office about 5:30 p.m. that day, Diffendorfer
came in and dropped a note on his desk with the comment "There it is." The note
stated that "San Antonio says they are cancelling entire requirements on trailers due
to mechanical problems and weld failure."
About 11 a.m. on Monday, October 14, Brinster met with Detwiler, Hausen, and
Cruz, and a final decision was reached to lay off 11 men. Except for one employee,
the selections for layoff were made in the order of their plantwide seniority standing.
The one exception was Lopez, a timekeeper, because he was the only one qualified
for that work. Only three of the laid-off employees had more seniority than Lopez,
and that consisted of not more than 2 months.
It was almost noon when the decision on the exact list of employees to be laid off
was reached. Brinster then told Detwiler to instruct Falls, Respondent's comptroller,
to prepare checks for the full workweek ending the following Wednesday night, in
lieu of notice. Brinster then instructed Hausen to pick up the checks at 1 p.m. and
to distribute them to the men. Hansen indicated his intention to dismiss the men
immediately upon delivery of the checks so that they could turn in their tools and be
checked out without causing a jam at 4:30.
HENRY SPEN & COMPANY, INC. 145
That afternoon the foremen informed the 11 men of their layoff for lack of work,
gave them their checks , and told them to leave work immediately . In the latter part
of December , when certain welding work became available, Respondent notified the
two welders , Oregan and Bosback , in the group of laid-off employees that Respondent
desired to reemploy them. One of them , Bosback, was in fact reemployed in January
1964. The remaining laid-off employees have neither been recalled nor replaced.
2. The General Counsel 's contentions and concludings findings
The General Counsel contends in her brief that Respondent 's true motive in lay-
ing off and failing to recall the 11 employees was discriminatory and that, in any
event, the timing of the layoffs was calculated to undermine the Union 's campaign.
More specifically , the General Counsel argues that the layoffs were undertaken as a
reprisal measure, after the Respondent learned of the Union 's telegram requesting
recognition . Alternatively , the General Counsel further argues that in any event
Respondent knew of the Union's organizing campaign prior to that day, that it
therefore could have planned the layoff sooner , held it in abeyance , and effectuated
it when it learned that the Union's campaign "was successful or nearing success."
The employee organizers first began distributing union authorization cards and
soliciting employee signatures on Thursday , October 10 . The solicitation was admit-
tedly carried on secretively . The Respondent 's knowledge of the Union 's campaign
to which the General Counsel has reference is based on the statement of Foreman
Picolla to employee Terry on October 10 that Terry should make sure he knew what
he was doing before he signed a union card if he intended to sign one , as previously
found . The strongest evidence refuting the General Counsel 's theories appears in
the testimony of Jack Murphy , one of the three employee solicitors and a chief wit-
ness for the General Counsel . On cross-examination , Murphy credibly testified that
about 3 weeks before the strike of October 15 he received information from an
unimpeachably reliable source employed in Respondent 's main office to the effect
that a layoff of 15 to 17 employees was contemplated because of a slowing down in
the amount of available work. While no names were mentioned , Murphy was fur-
ther informed that the layoff would be made in accordance with seniority . Murphy
further credibly testified that when he received this information , he discussed it with
another member of the Shop Committee and with two other employees who would
be regarded as leaders by the remaining employees , that they wanted to try to save
the employees whose layoffs were contemplated , that they knew they "needed a lit-
tle outside help" because they felt that the Shop Committee was not sufficiently
strong for that purpose , and that it was as a result of this information which he had
received from this unimpeachable source that he first discussed the question of try-
ing to organize the employees in a union.
With respect to the timing of the layoffs in relation to the receipt of the Union's
October 14 telegram , stating that the Union represented Respondent 's employees and
requesting an immediate appointment to negotiate a contract , the dates on the tele-
gram indicate that it was delivered to Western Union by the Union at 1:25 p.m. and
that it was transmitted by Western Union to Respondent 's teletype service at 1:54
p.m. Brinster testified that this telegram was not called to his attention until about
3 p.m., after the employees had already been notified of the layoffs . The testimony
of the General Counsel's own witnesses shows that while some men were notified of
their layoff after 1:54 p.m ., the process of notifying the employees that they were
being laid off actually began before that time and therefore before the receipt of
the telegram on Respondent 's teletype service. Thus, Union President McDonough
admitted on cross-examination that at 1:30 or 1:45 p .m. employee Fenimore tele-
phoned him to inform him about the layoff . And Fenimore , an employee solicitor,
also admitted on cross-examination that he might have telephoned McDonough from
the plant at that time , and that he told McDonough about other men being laid off
but did not say anything about himself at that time because he was one of the last
men to be informed of the layoff. In addition , Brinster had instructed Superintend-
ent Hausen to come up at 1 p .m. to pick up the checks and to give them out to the
men. In any event, the final decision as to whom and how many were to be laid off
and the instructions to inform the men of the layoff as soon as the checks were
drawn were made at the meeting held on Monday morning, October 14 , before the
Union even sent its telegram to Western Union , as previously stated.
The General Counsel also relies on the fact that the manner in which the layoffs
were effected differed from that used on a prior occasion about 2 years earlier when
about 15 employees were laid off. Thus, on the prior occasion , the employees were
laid off at the end of the workweek on Wednesday , about one-half hour before the
quitting time, and Respondent had informed the Shop Committee about the intended
layoffs before they were effectuated . Brinster credibly testified that as a result of
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comments made by laid-off employees in the past that it was better to start looking
for a new job on a Monday morning, it was Respondent's policy to try to notify an
employee of his layoff at the end of the calendar week, in this case, Friday. As
Respondent had not received the final word on the munitions trailer job until after
the end of the workday on Friday, the layoffs could not be effected until Monday.
Moreover, on the prior occasion , according to Brinster 's further credible testimony,
the Shop Committee had complained about the abruptness of the layoff and the
absence of any prior notice. In view of these considerations and a desire to be as
lenient as possible, Brinster credibly testified that he decided to effect the layoffs on
Monday and to pay the employees for the full workweek. He further credibly tes-
tified that the decision to dismiss the employees as soon as they were given their
checks was due to Superintendent Hausen's desire to have sufficient time to check
the employees out without causing a jam at the end of the workday at 4:30 p.m.
The experience gained on the prior occasion , when a large group of laid-off employ-
ees had not been dismissed early, may well have prompted Hansen to propose this
procedure on this occasion . Brinster further credibly testified that the reason he
had not discussed the layoffs with the Shop Committee was because it did not
appear to him that the Committee was functioning any longer. That there was in
fact no functioning Committee in existence at that time is affirmatively attested by
the General Counsel's own witnesses , Committeemen Murphy and Grande. More-
over, Murphy admitted that when Brinster asked him about 3 or 4 days before
October 15 to call a Committee meeting for the purpose of a general discussion with
Respondent, Murphy replied that he would have to see how things worked out and
that it would take about 2 weeks. The foregoing explanations offered by Respond-
ent appear to me to be reasonable and persuasive. The General Counsel has
advanced no convincing grounds for rejecting them. Accordingly, I accept them as
the true and real basis for Respondent 's conduct.
The General Counsel further points to an alleged inconsistency in Respondent's
position when she asserts that , about 2 months before the layoffs , Brinster assured
the assembled employees that there would be no layoffs. On that occasion, Brinster
told the men that two of his former employees were now working for one of his
competitors , that he had heard that these men had carried trade secrets to this com-
petitor which made it possible for the latter to underbid Respondent on jobs, and
that these two former employees were frequenting Respondent 's shop and telling the
employees that Respondent was in bad financial straits and they should quit and
work for this competitor before Respondent went bankrupt. Brinster testified that
during the course of this talk he told the men, in substance, that in view of Respond-
ent's backlog of about $2 million scheduled over the next 6 to 8 months, there would
be no layoffs if Respondent were successful in its bids for new contracts, as he
hoped they would be. Of the approximately 10 employees who testified as witnesses
for the General Counsel with respect to Brinster 's talk, not more than 1 or 2 testified
that Brinster stated , without any qualifications , that there would be no layoffs. The
remaining witnesses qualified their testimony on cross-examination and indicated that
Brinster stated that he was going to do everything in his power to keep everybody
working, or that he was trying to get contracts so there would not be any layoffs, or
that "he was expecting more contracts to keep the guys in work to do," or that he
was trying to get more work so that the people would not have to be laid off, or that
he was working on new contracts and hoped to get these contracts so that he would
not have to lay off, or that he had bids in for more work and was working on some
large contracts with hopes of getting them and would do everything in his power to
keep full employment . The foregoing clearly demonstrates that the preponderance
of the evidence warrants the finding , which I herein make, that on this occasion
Brinster assured the employees that , in substance , the Respondent had bids in for
more jobs, was working on getting more contracts , and would do everything in its
power so that there would not be any layoffs. I find nothing in Brinster 's speech
which is inconsistent with the subsequent events and Respondent 's conduct in effect-
ing the layoffs.
Finally, the General Counsel contends that, both at the time of the layoff and
thereafter, there was sufficient work available to warrant retaining all the employees.
In support of this argument , she points to the fact that Respondent knew in Sep-
tember 1963 that it was low bidder on a large contract for a lubrication unit, that
at the time of the layoffs two of the men were told by their foremen that they
would be recalled in a few weeks , and that after receipt of the lubrication unit con-
tract in January 1964 Respondent subcontracted about one-quarter of it. Brinster
explained that there is an automatic 60-day time limit allowed to the Government to
accept a proposal even if it is the lowest bid , that the Government may then request
additional time before awarding the job, and that in the case of the lubrication unit
HENRY SPEN & COMPANY, INC. 147
job two or three extensions were requested with the result that Respondent was not
awarded the contract until January 1964. He further pointed out that therefore,
even though Respondent was low bidder on this job in September, he could not
proceed to process any of it until he actually got the physical award because "good
business sense dictates you don't put money into a job that you don't have. And
you don't have it until you have a contract." That this was no mere pious statement
or subterfuge is borne out by the example in connection with the munitions trailer
job, where Respondent's competitor, Stewart Avionics, was at first the low bidder
but did not end up with the contract. Indeed, President Spen testified that, after a
few extensions on the lubrication unit job, there was talk by the Government of
canceling out half of the requirements and a possibility even of canceling out the
whole requirement, and that there was a review in the Defense Department to deter-
mine whether the items were actually needed. At the time of the hearing in this
case, Respondent was still working on the prototype on this job. The prototype,
which does not require the work of many people, was scheduled to be completed
about July 1964, and the shipments of completed units scheduled to begin in October.
However, proposed schedules are not always maintained, as the protoype may fail
of approval and require changes, as has in fact occurred in the past. But until the
prototype is completed and approved, Respondent cannot commence the manufactur-
ing. As for the subcontracting of the component parts for the lubrication unit,
President Spen testified that this was done because it was cheaper and in order to
meet delivery schedules after approval of the prototype. He further explained that
it had always been Respondent's practice to subcontract work on the outside when-
ever it was cheaper to do so. Respondent did not replace any of the laid-off employ-
ees. The foregoing, which was not contradicted, appear to me to be valid and con-
vincing explanations.
In addition, the General Counsel's own witnesses corroborated the testimony of
Respondent's witnesses that there was a slowdown of available work at the time of
the layoffs. Thus, employee Eldiidge testified that about the middle of September
he was concerned about the slowing down of available work, that he asked Foreman
Cruz what other work would be available, that Cruz replied that if the legal prob-
lems were straightened out there would be some more aluminum tanks to work on,
and that the first time he saw any more aluminum tanks was about the middle of
January 1964. He further testified that when his work slows down, it means that
other work in the shop before his has slowed down too. Murphy testified that in
the latter part of September and early part of October there was a slack period, that
during that time the men in his area were principally engaged in cleanup work, paint-
ing, and repairing, and that he noticed men in other areas of the shop doing that same
type of work.
Upon consideration of all the foregoing and the entire record as a whole, I am
convinced and find that the preponderance of the credible evidence does not sustain
the allegation that Respondent violated Section 8(a)(1) and (3) of the Act by its
conduct in laying off and not recalling the 11-named employees. Accordingly, I
will recommend that this allegation be dismissed.
E. Respondent's refusal to recognize and bargain with the Union
1. The appropriate unit
The complaint alleges that the production and maintenance employees of
Respondent's Brooklyn, New York, plant, with the usual exclusions, constitute an
appropriate unit within the meaning of Section 9(b) of the Act. The Respondent
contends that the only appropriate unit is one comprising the production and mainte-
nance employees of both its Brooklyn and Butler, New Jersey, plants.
In a decision issued by the Board on April 4, 1961, upon a petition filed by another
Teamsters Local (2-RC-1146), the Board decided the unit issue as follows:
The plants, located 35 miles apart, produce equipment for the military air-
craft and missiles. The Butler plant is primarily a machine operation supplying
component parts for the Brooklyn plant. It was operated by another employer
prior to a merger 5 years ago. The Brooklyn and Butler plants employ, respec-
tively, approximately 50 and 20 employees. There is no bargaining history or
evidence of interchange of employees. Each plant has separate and immediate
supervision and hiring. The main office at the Brooklyn plant handles all rec-
ords and purchases. In view of the geographic separation, the separate imme-
diate supervision, the lack of interchange of employees, the absence of bargain-
ing history, and the fact that no labor organization seeks a broader unit, we
find, notwithstanding some degree of interrelation between the Employer's two
plants, that a unit confined to the employees at the Brooklyn plant is appropriate.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With one important exception, the facts disclosed by the present record show no
significant changes in the operations or history of the two plants which would war-
rant a different finding. Thus, the record shows that the Butler plant is separately
supervised, except for a weekly visit of a few hours by Vice President Brinster, and
hiring and firing is handled exclusively and independently by the Butler foreman.
Assistant Plant Manager Detwiler testified as follows: The Butler plant "houses the
machine shop. It does the machine shop type of work whereas the Brooklyn plant
does the structural or sheet metal and forming type of work ... the degree of pre-
cision does not exist in Brooklyn as it exists in Butler. We have an ability to hold
close tolerances," which has "developed over the years" and is due to the machinery
and the skill of the manpower in Butler. "There is no interchange of employees"
between Brooklyn and Butler because "we operate with two different fields of
endeavor. They could be in juxtaposition physically, but we would not even then,
if they were located across the street or alongside of each other, be able to swap
one man from the Brooklyn operation to the Butler operation . It's a difference in
skill. A difference between toolmakers and hole punchers ...." The number of
employees at Butler "is not necessarily correlated with Brooklyn." The work in
Butler "is not" interchangeable with the work in Brooklyn. The Brooklyn plant
neither has the machinery, equipment, nor the type of employees capable of doing
the type of precision work done at Butler, and that same situation has always existed.
The one important exception is that there now is a bargaining history. However,
this bargaining history lends further support to the finding of an appropriate unit
confined to the employees of the Brooklyn plant alone. Thus, as previously found,
the Respondent has recognized and bargained with the Shop Committee as the rep-
resentative only of its Brooklyn plant employees? The Butler plant employees have
never been represented by the Shop Committee, nor have they participated in any of
the elections or functions of the Shop Committee. The Union made no attempt to
organize the Butler plant employees; nor did the Butler plant employees participate
in the 1963 strike called by the Union.
Upon consideration of all the foregoing, I find, as alleged in the complaint, that
all production and maintenance employees of Respondent employed at its Brooklyn,
New York, plant , exclusive of office clerical employees , managerial employees,
guards, and all supervisors as defined in Section 2(11) of the Act , constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act.
2. The Union's status as exclusive bargaining representative
a. Supervisory status of foremen
Jenaro Cruz, Mike Picolla, and Bob Moll have the title of foreman at the Brooklyn
plant. The General Counsel contends that these three foremen should be excluded
from the appropriate unit as supervisors within the meaning of the Act. The
Respondent contends that the three foremen do not possess the authority which
would render them supervisors within the meaning of the Act and that therefore
they should be counted in determining the number of employees in the appropriate
unit.
The Brooklyn plant is comprised of three separate buildings, separated by a street,
and referred to in the record as the old building , the new building , and the annex.
The production and maintenance employees work in all three buildings. Most of
the employees work with leadmen and group leaders, who admittedly are also full-
time production and maintenance employees. Above the leadmen are the three
foremen, each of whom is in charge of specific sections of the plant. Above the
foremen is Plant Superintendent Hausen, who is in charge of production at the
Brooklyn plant. Hausen is responsible to Assistant Plant Manager Detwiler, who is
also in charge of engineering and other departments not part of the production and
maintenance unit. Detwiler is responsible to Executive Vice President Brinster.
President Spen is primarily in charge of sales.
Brinster, Detwiler, and a large number of employees testified as to the duties and
authority of the foremen; neither the foremen nor Plant Superintendent Hausen,
their immediate superior , were called as witnesses. The testimony shows that the
foremen , who are assisted by the leadmen , are in charge of designated areas where
they sometimes perform some physical work. They each have a desk in their respec-
tive departments where they spend some time doing paperwork . They have the
4 It is true that any benefits granted to the Brooklyn plant employees as a result of
negotiations with the Shop Committee were also extended by Respondent to the Butler
plant employees.
HENRY SPEN & COMPANY, INC. 149
responsibility to, and do, assign work to employees and see that production schedules
are kept. They transfer employees from section to section and give them permission
to take time off. They have the authority to recommend the hiring, discharge, wage
increases, and promotion of employees to Superintendent Hausen who will give
weight to such recommendations. In fact, Hansen refused to listen to an employee's
request for a raise and insisted that he take it up with his foreman who was most
familiar with his work and who would then in turn make a recommendation to
Hausen.
Brinster described the authority and duties of the foremen as follows:
These men are delegated by the plant superintendent or foreman, Mr. Hansen,
to carry out certain responsibilities in laying out the work for the men, assigning
work for the men, seeing that production schedules are kept, working on proto-
types, to train the people, helping in the inspection to see that the job was made
according to the print and requirements, and generally to assist Mr. Hansen in
the carrying out of his responsibilities.
He admitted that the foremen can recommend the hire and discharge of employees
and that Superintendent Hansen will give weight to such recommendations. Detwiler
admitted that the foremen "may in the course of their work recommend to Mr.
Hausen that one person is more proficient than another." He also admitted that
Foreman Cruz and Picolla were required to be present at the meetings to determine
the number of employees to be laid off on October 14. Other than Hausen, who
has an office in one of the three separate buildings but spends most of the time in
the plant, the foremen are the only persons in charge of employees. The ratio of
admitted supervisors to employees scattered over the 3 separate buildings would
thus be I to 65 before the October 14 layoffs and 1 to 53 after the layoffs.
Upon consideration of all the foregoing, I am convinced that the preponderance
of the evidence clearly warrants the finding, which I herein make, that Foremen
Cruz, Picolla, and Moll possessed, and in fact have exercised, the authority which
constitute them supervisors within the meaning of Section 2 (11) of the Act.
b. The card majority
The General Counsel and the Respondent agree in their respective briefs that,
excluding the 11 laid-off employees and the 3 foremen, 26 employees would consti-
tute a majority of those in the above-found appropriate unit as of October 15, 1963.
The Respondent further concedes that as of the time that the Union met with
Respondent on the afternoon of October 15, the Union had received authorization
cards signed by 27 of the nonlaid-off employees in the appropriate unit, and that 14
of these cards are valid designation cards which Respondent does not contest.
Four of the contested thirteen cards are attacked by Respondent solely on the
ground that the employees signed them in blank, that is, that the employees did not
fill in the requested information such as the date, age, address, occupation, wage, and
the name and address of Respondent. The printed portion of the card states that it
is an "Application for membership" and that the signer authorizes the Union to
represent him in negotiating agreements as to wages, hours, and working conditions.
Three of these four employees 5 credibly testified, without contradiction, that they
had signed these cards before the October 15 strike, that at the time they signed the
cards they wanted the Union to represent them, and that they participated in the
strike. The fourth employee, Thomas Pagan, credibly testified, without contradic-
tion, that he signed the card before the strike, that he participated in the strike, that
he was on the employee committee which attended the October 15 meeting between
representatives of the Union and Respondent, and that he picketed. I find that the
fact that these cards were signed in blank does not, under the circumstances, invali-
date them for the purpose of determining the Union's majority status.
One card is attacked on the ground that the employee signed it in blank and that by
working during the strike he repudiated the Union. This employee, Amos Eldridge,
Jr., credibly testified, without contradiction, that he signed the card on October 10,
that at the time he signed it he wanted the Union to represent him, and that he was
out on strike only 2 hours. The Board has held that the "fact that certain employees
crossed the picket line to work does not invalidate their cards so far as a determina-
tion of majority status is concerned." 6 I find this to be a valid card for the purpose
of determining the Union's majority status.
5 Allen Holmes, George Robinson, Victor Morales
e Sierra Furniture Company, 123 NLRB 1198-1199.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another card is attacked on the ground that the employee signed it in blank and
that the balance of the requested information on the card appears in different colored
ink and different handwriting. This employee, Angello Fiorito, credibly testified,
without contradiction, that he signed the card on October 10, that at the time he
signed it he wanted the Union to represent him, and that he participated in the strike.
I find this to be a valid card for the purpose of determining the Union's majority
status:
Two cards are attacked on the ground that they were signed on October 14 but
had been predated to October 10 These employees 7 credibly testified, without
contradiction, that they signed the caid during the day on October 14, that at the
time they signed it they wanted the Union to represent them, and that they partici-
pated in the strike. In addition, one of the employees, Bronson, also credibly testified
that he engaged in picketing. I find these to be valid cards for the purpose of deter-
mining the Union's majority status as of October 15.
The card of employee Britt is attacked on the ground that the requested informa-
tion had already been filled in before he signed it. Britt credibly testified, without
contradiction, that he signed the card in the plant on October 14, that at the time
he signed it he wanted the Union to represent him, and that he participated in the
strike. I find this to be a valid card for the purpose of determining the Union's
majority status.
The cards of employees Frank Grande and Thomas Orefice are attacked on the
ground that they allegedly signed under compulsion. Grande credibly testified, with-
out contradiction, that he signed the card at the union meeting on the night of Octo-
ber 14 after the men had voted to go out on strike, that he read the card before signing
it, that he wanted the Union to represent him at the time he signed it, that he par-
ticipated in the strike, and that he engaged in picketing activities. Orefice credibly
testified, without contradiction, that he also signed the card at the union meeting on
the night of October 14, that he signed it of his own free will, and that he participated
in the strike. I find that Grande and Orefice did not sign the union authorization
cards under any compulsion, and that these are valid cards for the purpose of deter-
mining the Union's majority status.
A 12th card, that signed by employee Ismael Morales, is attacked on the ground
that he signed it in blank and also allegedly under compulsion. Morales credibly
testified, without contradiction, that he signed the card about October 11, that he had
not read the card but that he knew what it was and that he knew that signing it
meant that the Union was going to represent him, that employee Murphy had told
him that the other employees had signed and he signed because he wanted "to back
up the men" and "to be with the men," and that he signed the card voluntarily.
He further credibly testified that he attended the union meeting on the night before
the strike, that almost all the men were present at the meeting, and that he was out
on strike for about 2 weeks. In answer to a question on cross-examination as to
whether he wanted the Union to represent him at the time he signed the card, Morales
testified "No, sir." 8
Whatever reliance Morales may have originally placed on Murphy's statement, he
saw for himself that almost all the men were at the union meeting the night before
the strike (October 14) and supported the Union by their unanimous strike vote.
His continued adherence to and support of the Union from that night on, and his
failure to revoke or repudiate his designation either that night or thereafter, because
he wanted "to back up" and "be with the men" was therefore based on his own inde-
pendent observations beginning with the union meeting on the night before the
strike. With respect to his testimony at the hearing that he did not want the Union
to represent him when he signed the card, "it is well settled that an employee's sub-
jective state of mind in signing a union card cannot negate the clear statement on the
card that the signer is designating the union as his bargaining agent." 9 I therefore
find that at all times at least since the night of October 14, Morales' designation of
the Union as bargaining representative was not because of any alleged compulsion
or misrepresentation, and that therefore his union authorization card is a valid card
for the purpose of determining the Union's majority status as of October 15.
I have hereinabove found that 12 of the 13 union designation cards attacked by
Respondent are valid cards for the purpose of determining the Union's majority
status as of October 15. As these 12 together with the 14 concededly valid cards
total 26 or a majority of the nonlaid-off production and maintenance employees in
7 Irwin Holmes and Samuel Bronson
8 Morales was still employed by Respondent at the time of the instant hearing and he
testified in the presence of Respondent's officials.
9 Gary Steel Products Corporation, 144 NLRB 1160.
HENRY SPEN & COMPANY, INC. 151
the appropriate unit as of October 15,10 I find it unnecessary to determine the validity
of Respondent's attack on the remaining designation card, that of employee Ramon
Lugo.11
c. Concluding findings
As the Union was designated by a majority of the employees in the appropriate
unit by October 15, 1963, I find that at all times on and after that date the Union
has been, and is, the exclusive representative of all the employees in the above-found
appropriate unit for the purpose of collective bargaining within the meaning of
Section 9 (a) of the Act.12
3. The requests and refusals
As previously found, early in the afternoon of Monday, October 14, the Union
sent Respondent a telegram, stating that "We represent your employees. Request an
immediate appointment to negotiate labor contract." When this telegram came to
the attention of Vice President Brinster, he consulted with Joseph Eckhaus, attorney
for Respondent and a member of its board of directors. Brinster then telephoned
the Union's office and told Union President McDonough that he was referring the
Union's telegram to Respondent's attorney and was sending the Union a telegram to
that effect. The telegram which Brinster sent that afternoon to the Union stated,
"We acknowledge receipt of your wire. Will forward wire to our attorney, Mr.
Joseph Eckhaus ... He will contact your office after review." At the union meeting
held that night, the Brooklyn plant employees unanimously voted to strike. The
next morning, Tuesday, October 15, the strike was in progress as employees arrived
for work, with strikers patrolling in the area of the Brooklyn plant with picket signs.
a. The meeting on October 15
About 1:30 p.m. on October 15, the first day of the strike, McDonough saw
Brinster outside the plant and suggested that they get together and talk this thing
over to see if they could resolve the situation. Brinster agreed, and told McDonough
to give him about 10 minutes to take care of a few things and then to come up to his
office with his people. The Union was represented at this meeting by President
McDonough, Secretary-Treasurer Zappi, Recording Secretary Dapolito, and an
employee committee consisting of John Murphy, Thomas Pagan, and Carmine Prizzi.
Respondent was represented by Vice President Brinster and President Spen. McDon-
ough did most of the talking for the Union, and Brinster did most of the talking for
Respondent.
There is no serious dispute, and I find, that at least the following transpired at
some time during the course of this meeting: McDonough claimed that the Union
represented a majority of the employees, and asked for recognition and a meeting to
negotiate a contract. When Brinster questioned his claim, McDonough indicated
that the proof was outside on the sidewalk in the number of men on strike, and asked
Brinster and Spen to look out the window.13 Brinster stated that he was not familiar
with the labor laws and would like to call his attorney. Brmster then telephoned
Eckhaus, informed him of the presence and requests of the Union's representatives,
and had McDonough speak to Eckhaus. McDonough introduced himself, requested
a meeting to resolve the situation, and indicated that he was available any time of
day or night, including Saturday and Sunday. He was unable to get a commitment
from Eckhaus on a definite meeting date. Eckhaus stated that he would advise his
client not to recognize the Union unless McDonough first submitted proof in sup-
port of his majority claim, and asked him to submit the signed union cards -to
"the boss," Brinster and Spen. McDonough refused on the ground that they could be
10 Respondent concedes in its brief that another valid union designation card was signed
during the strike on October 16 or 17 by employee Armando Torruellas
n Brinster testified that at the time of their layoff on October 14, the 11 "laid- off" em-
ployees did not have a reasonable expectation of reemployment in the foreseeable future
However, even if the "laid-off" employees were to be counted, the Union was still desig-
nated by a majority of the employees in the appropriate unit because, as Respondent con-
cedes in its brief, 6 of the 11 laid-off employees signed valid union authorization cards
prior to October 15.
12I find that any subsequent possible numerical loss of majority status is attributable to
Respondent's unfair labor practices in refusing to recognize and bargain with the Union,
as hereinafter, found, and therefore must be disregarded. Franks Bros. Company v.
N.L.R.B , 321 U.S. 702; Medo Photo Corporation v N.L R.B., 321 U.S. 678, 687.
13 Brinster testified that he walked through the plant that morning and counted only
15 nonsupervisory employees at work.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used to hurt the men, inasmuch as he did not have 100 percent of the men signed
up, and stated that he had the proof out on the sidewalk. The telephone conversa-
tion ended with McDonough stating that he would be downstairs picketing and that
all Eckhaus had to do was to set a time for a meeting and McDonough would be
there. McDonough then turned the telephone back to Brinster, who spoke to Eck-
haus for a few minutes and hung up. McDonough also refused to comply with
Brmster's request to produce the union cards as proof of the Union's majority. The
meeting ended with Brinster or Spen stating that they would be in touch with McDon-
ough after they consulted further with their attorney, and with McDonough replying
that he could be contacted "downstairs on strike" or at "strike headquarters" and giv-
ing the telephone number of "strike headquarters."
The chief matter in dispute as to what transpired at this meeting revolves around
the subject of an election. Thus, McDonough testified that he told Brinster and
Spen , as well as Eckhaus in the telephone conversation, that he would agree to a
consent election to be held before the Board within a week or 10 days, that they
would not agree to a consent election but insisted only on a Board-directed election
through normal channels by the filing and processing of a petition, and that, bearing
in mind what the employees told him had happened in such an election a few years
earlier, he refused because of the inordinate delay involved in that type of an elec-
tion. On the other hand, according to the composite testimony of Brinster and Spen,
Brinster told McDonough that they would recognize an NLRB election through the
normal channels, McDonough stated he did not want an NLRB election because it
would be "a long drawn out" procedure and that even a consent election would take
a week to 10 days, and McDonough wanted a "quickee" election such as could be
held under the auspices of the American Arbitration Association in 2 days. Eckhaus
did not testify. The only other persons who testified with respect to this meeting are
the three members of the employee committee, who were called as witnesses by the
General Counsel. As not one of these obviously friendly employee witnesses cor-
roborated McDonough's version, I do not credit his testimony but accept the version
of Brinster and Spen, as herein set forth.
b. Further efforts
Later that same day, October 15, on the advice of the Union's attorney, McDon-
ough sent Respondent the following telegram:
We advised you yesterday that we represent a majority mf [sic!] your employ-
ees and desire to negotiate a collective bargaining agreement with you. If there
is any doubt in your mind concerning our majority status after the overwhelm-
ing support for the union demonstrated today in response to the strike called to
protest your unfair refusal to recognize Local 854 and your unfair "lay-off" of
employees yesterday, we stand ready to demonstrate documentary proof of
[sic!] that a majority of your employees have designated this union as their col-
lective bargaining representative. Please call the undersigned to arrange for a
meeting for the purpose of collective bargaining at which meeting we will
present such documentary proof. Eugene McDonough Local 854 Axtel 7-1420.
On Wednesday, October 16, McDonough approached President Spen in front of
the plant and invited him to come to strike headquarters. When Spen arrived there
about an hour later, he engaged in a conversation with McDonough and another
union official about the benefits already accorded to Respondent's employees and the
fact that there were not many items left for negotiation. McDonough stated that
the only economic demands the Union would make would involve hospitalization,
pensions, and a normal across-the-board wage increase. During the course of the
conversation, they tried to get Spen "to resolve this situation by having a consent
election so the people can go back to work pending the consent election." Spen
refused, stating that his attorney had advised him not to go to a consent election.
McDonough explained that the reason the employees were opposed to an election
resulting from the regular Board procedure of filing a petition was because that
could be "dragged out" for 4 or 5 months. Spen, however, refused to change his
position.14
14,The findings in this paragraph are based on the credited testimony of McDonough.
Spen admitted that he appeared at the strike headquarters upon invitation, on Wednesday,
October 16, and that he had a conversation with McDonough and another union official
about the benefits received by Respondent ' s employees . He did not deny the conversation
with respect to a consent election , set forth in the text . To the extent that his testimony
may be regarded as a denial , I do not credit it.
HENRY SPEN & COMPANY, INC. 153
On Thursday, October 17, the Union received at its office a letter from Eckhaus,
addressed to McDonough and dated October 15. The letter stated that McDon-
ough's last telegram to Respondent had been referred to Eckhaus. The letter then
summarized Eckhaus' version of his telephone conversation with McDonough on
October 15, and stated that "I again wish to advise you, as I did yesterday, that I
will be happy to arrange an appointment to enable you to furnish the proper docu-
mentary proof in support of your claim that you have been designated as their col-
lective representative by a majority of my client's employees." The letter then con-
cluded with a report which, McDonough felt, obliquely accused the Union of plug-
ging the locks of the plant and molesting and preventing employees from going to
work. Because he felt that these were insinuations of "criminal" conduct, Mc-
Donough referred the letter to the Union's attorney for whatever action was deemed
necessary.
Sometime during the first week of the strike, McDonough was told that a message
was left in his office to call Eckhaus. Thereafter, McDonough called back numerous
times, and each time was told that Eckhaus was not in. During the period from
October 17 to 24, McDonough called Eckhaus' office about six times, each time
leaving his name and office number. Eckhaus never returned the calls. On one
occasion, he was able to speak to Eckhaus' brother and partner. On that occasion,
McDonough told him that he had been trying to get in touch with his brother, Mr.
Joseph Eckhaus, for 3 or 4 days with reference to the Henry Spen matter, asked if
he would "please" have his brother call McDonough, and gave him the telephone
number of the strike headquarters. However, Eckhaus made no further attempt to
communicate with McDonough, and McDonough never succeeded in talking to
him.15
On October 30 the Union's attorney sent Eckhaus the following telegram.
Re: Henry Spen & Company-Local 854, I.B.T. on behalf of our client Local
854 I attempted to reach you today in order to set up a meeting at which time
Local 854 will make available to you documentary proof fo [ sic!] its status as
majority representative of your employees. As indicated by telegram to your
client from Local 854 dated October 15, 1963, this proof will be available at
any time you will be available to receive same. Please contract [sic!] the under-
signed immediately for purpose of arranging such a meeting.
No reply was received to this telegram , and Eckhaus made no attempt to telephone
the Union's attorney. Nor did Respondent at any time itself file a petition for an
election with the Board.
C. Concluding findings
It is well settled that "it is a bargaining representative's duty when an employer in
good faith questions its majority status, to offer, and it is the employer's duty to
accept, some reasonable method for ascertaining the truth of the representative's
claim." N.L.R.B. v. New Era Die Co., 118 F. 2d 500, 504 (C.A. 3). However, the
employer "is not entitled to dictate any arbitrary method of proof." N.L.R.B. v.
Moltrup Steel Products Company, 121 F. 2d 612, 618 (C.A. 3). "When adequate
proof is available in a reasonable manner, its offer cannot in good faith be refused."
N.L.R.B. v. George Groh & Sons, 329 F. 2d 265 (C.A. 10); N.L.R.B. v. Dahlstrom
Metallic Door Company, 112 F. 2d 756, 757 (C.A. 2). The cases further hold that
a union's refusal to show the signed cards to the employer is "proper, since to do so
would have deprived the employees of the secrecy of choice." George Groh, Moltrup
Steel, and New Era Die, supra. Some of the methods which have been held to con-
stitute reasonable and adequate 'methods of ascertaining the truth of a union's major-
ity claim which an employer may not in good faith reject are: (1) having the union
cards checked against the employer's payroll by an impartial third party or agency,
(2) holding a consent election, and (3) having a third party conduct a secret election.
George Groh and Moltrup Steel, supra; N.L.R.B. v. Economy Food Center, Inc.,
333 F. 2d 468 (C.A. 7); The Solvay Process Company v. N.L.R B., 117 F. 2d 83,
86 (C.A. 5); and Florence Printing Co. v. N.L.R.B., 333 F. 2d 289 (C.A. 4).
In the instant case , at the very first meeting between the parties on October 15,
Union President McDonough refused the requests of Respondent's Attorney Eckhaus
and Vice President Brinster to submit the signed cards to "the boss," as "was proper,"
but instead offered to prove the Union's majority status by having a quick election
conducted by an impartial agency such as the American Arbitration Association
because that would obviate the inordinate delay involved in Board procedures for an
15 The findings in this paragraph are based on the credited and undenied testimony of
McDonough.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, as previously found . This was an obviously reasonable and adequate
method of ascertaining the truth of the Union 's majority claim , which Respondent
could not in good faith refuse. Respondent 's insistence upon the submission of the
membership cards to Respondent or an election by the Board through normal chan-
nels as the only acceptable methods was clearly arbitrary . Under these circum-
stances, the Union's refusal to comply with Respondent 's requests did not justify the
refusal of Respondent to recognize and bargain with the Union . What was said in a
recent decision by the Court of Appeals for the Fourth Circuit applies with equal
force to the facts in this case. "If the company had any doubts when it was
approached by the union , it could have agreed to the private election suggested by
the union or it could have itself petitioned the Board under section 9 (c) (1) (B) for
a representation election." Florence Printing Co., supra, at 292.
But this is not all . Respondent still had additional courses to pursue. Thus, as
previously found, McDonough almost immediately thereafter yielded to Respondent's
request and in his telegram of December 15 announced the Union 's willingness and
readiness to submit the requested documentary proof if Respondent would only
arrange a meeting for that purpose. But instead of arranging such a meeting, Eck-
haus merely advised McDonough by letter, dated October 16, that he "would be
happy to arrange an appointment" for that purpose . However, Eckhaus never made
good on this statement . Not only did he not arrange such an appointment but,
except for one unsuccessful telephone call to the Union's office, never even attempted
to arrange such an appointment . McDonough had given Brinster the telephone num-
ber of the Union 's office and of the strike headquarters at the Ad Way bar, located a
few streets from the plant . Eckhaus had the telephone number of the Union 's office.
In their telephone conversation with Eckhaus on October 15, McDonough stated
that he would be downstairs picketing and that all Eckhaus had to do was to set a
time for a meeting and McDonough would be there , as previously found . At that
same meeting , McDonough also told Brinster and Spen that he could be contacted
"downstairs on strike" or at "strike headquarters ," also as previously found. Thus,
Eckhaus could have readily communicated with McDonough either directly or
through Brinster to inform McDonough of a date for a meeting for the purpose of
submitting the requested and proffered documentary proof of the Union 's majority.
Yet, despite McDonough 's repeated calls to Eckhaus ' office, where he left his name
and telephone number each time, and despite his urgent plea to Eckhaus ' brother
to have Eckhaus return McDonough 's call, Eckhaus made no further effort to com-
municate with McDonough . Indeed, McDonough made a still further concession
when on October 17 he tried to persuade President Spen to agree to a consent elec-
tion so that the employees could return to work pending the holding of such an
election, as previously found. But Spen refused on the ground that his attorney had
advised not to go to a consent election, also as previously found. Finally , the Union's
attorney also made efforts to have Eckhaus arrange a meeting to enable the Union
to submit the requested documentary proof of its majority claim. After having unsuc-
cessfully tried to contact Eckhaus, the Union 's attorney sent him a telegram on Octo-
ber 30 in which he reiterated the Union 's readiness to submit the requested documen-
tary proof in support of its majority representation claim whenever Eckhaus was
available and requested that Eckhaus "please contact the undersigned immediately
for the purpose of arranging such a meeting ." Eckhaus never responded to this tele-
gram , and never attempted to communicate with the Union 's attorney.
It is clearly apparent that Respondent had a number of additional adequate and
reasonable courses to pursue if it did in fact have a good -faith desire to ascertain the
truth of the Union's claim . Thus, Respondent could readily have arranged a meeting
to see and check the proffered signed union cards, the very proof it had requested;
it could have agreed to go to a consent election; and it even could have noncoercively
asked the strikers if they wanted the Union to represent them (Blue Flash Express,
Inc., 109 NLRB 591). Respondent steadfastly pursued none of these courses. In
sharp contrast is the treatment accorded by Respondent to the Shop Committee with
which, the record clearly demonstrates , Respondent preferred to deal . Thus, as
previously found, only 2 years earlier Respondent recognized the Shop Committee as
the bargaining representative of the Brooklyn plant production and maintenance
employees on the mere oral assertion that 80 percent of the employees had voted for
it in a secret ballot election . • Respondent continued to recognize the Shop Committee
as late as September and October , 1963, despite the fact that Brinster knew at that
time that the employees no longer wanted the Shop Committee to represent them.
Instead, as previously found , Brinster addressed the assembled employees to "build
up the Committee," assuring them that he respected and believed in the Committee
and wanted "to make a go of it ," and pleading with them not to let it "go down the
HENRY SPEN & COMPANY, INC. 155
drain." Thereafter, Brinster continued his inquiries and expressed interest in the
progress of the committeemen's efforts to maintain the Committee as a functioning
organization , all as previously found.
"The undeniable fact is that a majority of the employees had authorized the Union
to bargain collectively for them and Respondent took no reasonable steps to ascertain
the facts" (New Eia Die, supra ) but "took the chance of what they might be" (Dahl-
strom Metallic, supra ). Indeed, the record warrants the conclusion that Respond-
ent "assiduously avoided giving the Union any opportunity to substantiate its claims.
Such conduct is not indicative of good faith ." 16 N.L R.B. v. Philamon Laboratories,
Inc., 298 F. 2d 176, 180 (C.A. 2). I find that by refusing to recognize and negotiate
with the Union on and after October 15 , 1963, Respondent refused to bargain within
the meaning of the Act and thereby violated Section 8(a)(5) and (1).17
F. Interference, restraint, and coercion during the strike 18
The Alabama-Williams Association is a Respondent-endowed fund used for the
purpose of loaning money to employees. The president of the Shop Committee is
automatically the employee-trustee of this Association; Plant Superintendent Hansen
is the Respondent-trustee. When an employee desires a loan, he fills out a printed
application form which he signs and submits to the president of the Shop Committee.
If the president approves the loan, he and two other committeemen sign the appli-
cation. The president then submits the application for the approval and signature
of Superintendent Hausen, who, in turn, then sends it upstairs to the comptroller. If
the comptroller determines that the applicant is in good standing in the sense that
he had no other upaid loans outstanding and had not been in default on any prior
loans, and that funds are available, he then issues a check payable to the applicant,
which is sent down for the signatures of Hansen and the president of the Shop Com-
mittee. The latter then gives the check to the applicant.
In October 1963 Frank Grande was the employee-trustee by virtue of being presi-
dent of the Shop Committee. Before the strike, employee Migliozzi had filled out
an application for a $50 loan, payable at $5 a week, for the purpose of a car pay-
ment. Grande received Migliozzi's signed application on October 14, the day before
the strike. When Grande received the application, it already contained the required
signatures of two other committeemen. Grande approved and signed the application,
and placed it on Superintendent Hausen's desk when he was ready to leave for the
day. The next day, October 15, both Grande and Migliozzi joined the strike and
were on the picket line.
When Migliozzi's check was not forthcoming during the week, he began pressing
Grande because he needed it for the car payment. So either during the latter part
of the first week of the strike or early in the second week, Grande went into the office
and asked Hansen about the check for Migliozzi's loan. Hansen stated that "they
were not sending it down." Grande exclaimed, "What do you mean they are not
sending it down!" Grande then explained that the loan association was supposed to
operate independently of other considerations. But Hansen insisted that "upstairs"
would not send it down.
Grande was picketing during the entire first week of the strike in front of the plant.
Migliozzi also picketed. Both of them continued to participate in the strike for its
duration. Migliozzi did not receive his check until November 12, about a week after
the strike ended and he and Grande had returned to work.
On all prior occasions when the Shop Committee president submitted an approved
application on Hausen's desk at the end of the workday, it took no more than a day
or two before the applicant's record was checked and a check was issued and signed
by Hansen and the Committee president. If the normal practice had been followed
in Migliozzi's case, Grande would have received the check by Wednesday, October 16,
for submission to Migllozzi. Respondent offered no explanation either at the
hearing or in its brief for its deviation in this case from the past established practice.
16 In my view of the instant case, I deem it unnecessary to reply on, and therefore have
not considered whether on this record any weight should be accorded to, the admitted fact
that Respondent's representatives knew that a majority of the Brooklyn plant production
and maintenance employees were not working in the plant during the strike period in
October.
17 As the Respondent's conduct in this respect clearly prolonged the strike, I further find
that the strike was converted into an unfair labor practice strike beginning with the meet-
ing on October 15, 1963.
Is The factual findings in this section are based on the credited and uncontradicted testi-
mony of Frank Grande and upon uncontested documentary exhibits.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Respondent's counsel objected at the hearing to the introduction of the testi-
mony with respect to the foregoing events on the ground that it was not relevant to
anything alleged in the complaint, the General Counsel pointed to paragraph 15 of
the complaint 19 and contended that Respondent's failure to approve Migliozzi's loan
until after the strike had ended was in reprisal for his strike activity. Despite this
statement, Respondent did not call Hausen or the comptroller or any other person
with direct knowledge of the events as witnesses to explain why the check was not
issued and delivered in the same expeditious manner as it had been before the strike.
The Respondent's representatives were the only ones who knew the true reason for the.
failure to issue the check until about a week after the strike. Under these circum-
stances, Respondent's unexplained failure to call such persons as witnesses warrants
the inference, which I herein make, that their testimony would have been adverse to
Respondent20
Upon consideration of all the foregoing, I find that Respondent's refusal and failure
to issue the check to striker Migliozzi from the Alabama-Williams fund while the
strike was in progress was an act of retaliation because he joined with his fellow
employees in the protected concerted activity of striking. By such conduct, Respond-
ent interfered with, restrained, and coerced its employees in the exericse of their
rights guaranteed by Section 7 of the Act and thereby violated Section 8 (a)( I) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section IH, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom and that it take certain affirmative
action necessary to effectuate the policies of the Act.
Having found that Respondent refused to recognize and negotiate with the Union
in violation of Section 8(a)(5) and (1) of the Act, I will recommend that, upon
request, Respondent recognize and bargain collectively with the Union as the exclu-
sive representative of all its employees in the appropriate unit with respect to rates
of pay, wages, hours, and other terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement. My finding
(see footnote 17, supra) that the strike was converted into an unfair labor practice
strike does not require any additional remedy, as Respondent immediately reinstated
all strikers who desired to return to work.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 854, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America is a labor organization within the meaning of Section
2(5) of the Act.
2. All production and maintenance employees of Respondent employed at its
Brooklyn, New York, plant, exclusive of office clerical employees, managerial employ-
ees, guards, and all supervisors as defined in Section 2(11) of the Act, constitute a
unit appropriate for purposes of collective bargaining within the meaning of Section
9(b) of the Act.
3. At all times on and after October 15, 1963, the above-named Union has been,
and still is, the exclusive representative of all the employees within the aforestated
appropriate unit for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of employment, within the mean-
ing of Section 9(a) of the Act.
19 This paragraph alleges that Respondent "engaged In reprisals against his employees
because they engaged in the strike and concerted work stoppage described above in
paragraph 14."
2OInterstate Circuit, Inc. v. U.S., 30'6 U.S. 208, 226; Dandridge Finishing Company,
Inc., 142 NLRB 1141, 1145; Michael Benevento and John Benevento d/b/a M. Benevento
Sand & Gravel Co., 131 NLRB 358, 364, enfd. 316 F. 2d 224 (C.A. 1).
HENRY SPEN & COMPANY, INC. 157
4. By refusing to recognize and bargain collectively with the Union as such exclu-
sive representative at all times on and after October 15, 1963, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) of the Act.
5. By such conduct and by the refusal and failure to process a loan for a striking
employee in retaliation for his joining his fellow employees in engaging in a pro-
tected strike activity , Respondent has interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
6. The strike which commenced on October 15, 1963, was on and after that day
prolonged by Respondent 's unfair labor practices in refusing to recognize and bargain
collectively with the Union , and hence was an unfair labor practice strike.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not engage in unfair labor practices within the meaning of
Section 8(a) (3) and (1) of the Act by its conduct in laying off and not recalling 11
named employees.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended , I hereby
recommend that the Respondent , Henry Spen & Company, Inc., Brooklyn , New York,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Taking economic reprisals against its employees for engaging in the protected
activity of a strike or for engaging in any other protected concerted activity.
(b) Refusing to recognize and bargain collectively with Local 854, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America as
the exclusive representative of its employees in the following appropriate unit:
All production and maintenance employees at its Brooklyn, New York , plant,
exclusive of office clerical employees , managerial employees , guards, and all super-
visors as defined in Section 2 (11) of the Act.
(c) In any like or related manner interfering with , restraining , or coercing employ-
ees in the exercise of their right to self-organization , to form, join, or assist the
above-named or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection , or to refrain from any or
all such activities , except to the extent that such right is affected by the provisos in
Section 8(a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Upon request , bargain collectively with the above -named Union as the exclu-
sive representation of the employees in the aforestated appropriate unit, with respect
to rates of pay , wages, hours of employment , or other conditions of employment, and,
if an understanding is reached , embody such understanding in a signed agreement.
(b) Post at its place of business in Brooklyn , New York, copies of the attached
notice marked "Appendix A." 21 Copies of said notice, to be furnished by the
Regional Director for Region 2, shall , after being duly signed by a representative of
the Respondent , be posted by it immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by said Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the said Regional Director , in writing , within 20 days from the date of
this Decision and Recommended Order, what steps the Respondent has taken to
comply therewith.22
221 In the event that this Recommended Order shall be adopted by the Board , the words
"a Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
' In the event that this Recommended Order is adopted by the Board this provision
shall be modified to read* "Notify said Regional Director , in writing, within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further recommend that the complaint be dismissed insofar as it alleges that the
Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (3 )
and (1) of the Act by discharging and failing to recall 11 named employees.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL, upon request, recognize and bargain collectively with Local 854,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America as the exclusive representative of all the employees in the bargaining
unit described below, with respect to rates of pay, wages, hours of employment,
or other conditions of employment, and, if an agreement is reached, embody it
in a signed contract. The bargaining unit is:
All production and maintenance employees at our Brooklyn, New York,
plant, exclusive of office clerical employees, managerial employees, guards,
and all supervisors as defined in Section 2(11) of the Act.
WE WILL NOT take economic reprisals against any employee for engaging in
the protected activity of a strike or for engaging in any other protected concerted
activity.
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 the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent that such
right may be affected by the provisos in Section 8 (a) (3) of the Act.
HENRY SPEN & COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(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.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.
International Hod Carriers, Building and Common Laborers
Union of America , Local #1082 , and its Agent , George Tarr
[E. L. Boggs Plastering Company] and Jones & Jones, Inc.,
and Progressive Plastering & Lathing Contractors ' Association
International Hod Carriers, Building and Common Laborers,
Local # 1082 and Jones & Jones, Inc., and Progressive Plaster-
ing & Lathing Contractors ' Association . Cases Nos. 21-CB-
1969, 21-CB-201f, 21-CC-549, V-CC-567, and 21-CB-2091. De-
cember 15, 1964
DECISION AND ORDER
On August 27, 1963, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
150 NLRB No. 19.