I. Posner, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1961

133 N.L.R.B. 1573 (N.L.R.B. 1961)

I. POSNER, INC., ETC. 1573
partment Store Union , AFL-CIO, or any other labor organization except to the
extent that this right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
I. POSNER , INC.; POSNER DISTRIBUTING CORP.; AND
POSNER BEAUTY AND BARBER SUPPLY CORP.,
Employers.
Dated-------- ----------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
1. Posner, Inc.; Posner Distributing Corp .; and Posner Beauty
and Barber Supply Corp . and District 65, Retail , Wholesale
and Department Store Union , AFL-CIO. Case No. 2-CA-6864.
October 30, 1961
DECISION AND ORDER
On August 2, 1960, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Companies, collectively referred to herein as the
Respondent, had engaged in and were engaging in certain unfair
labor practices and recommending that the Respondent cease and
desist therefrom and take certain affirmative action, as set forth in
the Intermediate Report attached hereto. Thereafter, the Respondent,
the General Counsel, and the Union filed exceptions to the Intermedi-
ate Report, and the General Counsel filed a brief in support of his
exceptions.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.
1. We affirm the Trial Examiner's conclusion that the Respondent
discharged Samuel L. Simpson and Edgar Moore on July 24 and 25,
1959, respectively, because of their membership in and activity on
behalf of the Charging Union, in violation of Section 8(a) (3) and
(1) of the Act. In agreeing with the Trial Examiner that the Re-
spondent had knowledge of the union activity of the discriminatees,
1 Each of the parties filed exceptions to credibility resolutions made by the Trial
Examiner It is the Board 's established policy not to overrule a Trial Examiner ' s reso-
lutions as to credibility unless the clear preponderance of all the relevant evidence con-
vinces us that the resolutions were incorrect. Such a conclusion is not warranted here.
Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd . 188 F. 2d 362 (C.A. 3).
133 NLRB No. 141.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we rely upon the fact that Brown, a supervisor,2 was aware of their
participation in the union organizing campaign by virtue of his
attendance, upon Simpson's invitation, at the July 22 union meeting,
during which he talked to Moore, as well as upon the additional factors
mentioned in the Intermediate Report.
2. We also agree with the Trial Examiner that the Respondent
unlawfully assisted Hair Goods, Toiletries and Accessories Workers
Union, Local 21906, AFL-CIO, in violation of Section 8(a) (2) of
of the Act. However, we find it unnecessary to rely upon his sub-
sidiary findings that Posner, Respondent's head, knew in advance that
the five employees were planning to leave work to visit Local 21906
on or about August 24, and that he authorized them to do so, and that
employees McGee and McNeil were agents of the Respondent for
whose activities the Respondent is liable. It is sufficient that McGee,
one of the aforementioned five employees, informed Posner of the
visit early the following morning, that the employees were paid for
the time thus spent, and that thereafter Posner and supervisors in-
duced and encouraged employees to join that union. The Respond-
ent's sponsorship and promotion of Local 21906 as contrasted with
its opposition to District 65 is apparent from the Intermediate Report.
3. The Trial Examiner found that the Respondent engaged in con-
duct which is independently violative of Section 8 (a) (1) of the
Act by making promises of benefits and threatening to close down
before District 65 came into the plant. We adopt his 8 (a) (1) finding
insofar as it is based upon the unlawful promises found by him. How-
ever, the record does not support his independent finding of unlawful
threats and we therefore do not adopt his conclusion in that respect.
4. In support of the allegation that the Respondent violated Section
8 (a) (5) by refusing to bargain with District 65, the General Counsel
submitted authorization cards as evidence of that Union's majority
status. The Trial Examiner rejected a majority of those cards, find-
ing that they had been secured by coercion or were not authenticated
for various reasons and that it had not been proved that District 65
represented an uncoerced majority of the employees. He therefore
recommended that this allegation of the complaint be dismissed.
While we are not entirely in accord with the Trial Examiner's ra-
tionale or with all the conclusions upon which he based his recom-
mendation, we agree with him that the General Counsel has not sus-
2 We agree with the Trial Examiner's conclusions that Brown , Plotzker, and Grant are
supervisors within the meaning of the Act. In addition to the factors set forth in the
Intermediate Report, we rely on the corroborated testimony of witnesses , who have been
credited in other respects , to the effect that Brown works along with the other employees
in the shipping department only when they are rushed ; that Plotzker instructs em-
ployees what to do each morning ; and that Grant assigns work , assigns people to differ-
ent jobs, keeps order in the department , designates employees to assist new employees,
and reprimands or criticizes employees for not performing their work properly.
I. POSNER, INC., ETC. 1575
tained his burden of establishing that District 65 represented a major-
ity of the employees in an appropriate unit. Thus , the Respondent had
45 production and maintenance employees , and the General Counsel
submitted 35 cards bearing names of such employees . Assuming that
District 65 requested recognition in the appropriate unit, and accept-
ing the Trial Examiner 's credibility resolutions , it appears that the
signatures on at least nine of the authorization cards have not been
authenticated and, that at least nine other cards were secured as a
result of coercive statements by members of the union organizing com-
mittee , as explained in the Intermediate Report. Moreover , approxi-
mately 20 employees whose names appear on District 65 cards also
signed authorization cards on behalf of Local 21906 .' As the record
thus fails to establish District 65's majority status , we shall dismiss
the complaint insofar as it alleges a violation of Section 8 (a) (5) of the
Act.
5. The General Counsel alleged that the strike which began on
September 1, 1959, was caused or prolonged by the Respondent 's unfair
labor practices . The Trial Examiner found that it was economic in its
inception and at all times thereafter . We find it unnecessary to reach
this question in this proceeding and, therefore , do not pass upon his
findings or adopt his conclusions as to the nature of the strike.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, I. Posner, Inc. ;
Posner Distributing Corp. ; and Posner Beauty and Barber Supply
Corp., their officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, or in any other labor organiza-
tion, by discharging their employees or discriminating in any other
manner in respect to their hire or tenure of employment, or any term
or condition of employment.
(b) Contributing support to Hair Goods, Toiletries and Accessories
Workers Union, Local 21906, AFL-CIO, or any other labor organiza-
tion, and from otherwise interfering with the representation of their
employees through a labor organization of their own choosing.
(c) Promising benefits to their employees in connection with union
activities.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their rights to self-organization, to
s Adam D. Goettl, et al, d/b /a International Metal Products Company, 104 NLRB
1076, 1080.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively through representatives of their own choosing, or
to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make Edgar Moore whole for any loss of pay he may have
suffered from July 24 through 28,1959, by reason of the discrimination
against him, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."'
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due under
the terms of this Order.
(c) Withhold all recognition from Hair Goods, Toiletries and
Accessories Workers Union, Local 21906, AFL-CIO, or any successor
labor organization, as the exclusive representative of their employees
for the purposes of collective bargaining, unless and until such labor
organization has been duly certified by the National Labor Relations
Board as the exclusive representative of such employees.
(d) Post at their plant in New York, New York, copies of the
notice attached hereto marked "Appendix." 5 Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondents' representative, be posted
by them immediately after receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to their employees are customarily posted.
Reasonable steps shall be taken by the Respondents to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violation of the Act not found herein.
4 In this section, the Trial Examiner refers to Simpson as the discriminatee entitled
to backpay , inadvertently finding that Moore lost no pay on account of the discrimination
against them Actually, as appears elsewhere in the Intermediate Report, it is Simpson
who has been made whole herein and Moore to whom backpay is due.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
I. POSNER , INC., ETC.
APPENDIX
NOTICE TO ALL EMPLOYEES
1577
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in District 65, Retail,
Wholesale and Department Store Union, AFL-CIO, or in any
other labor organization, by discharging any of our employees
or discriminating in any other manner in respect to their hire
or tenure of employment, or any term or condition of employment.
WE WILL NOT contribute support to Hair Goods, Toiletries and
Accessories Workers Union, Local 21906, AFL-CIO, or any other
labor organization.
WE WILL NOT withhold all recognition from Hair Goods, Toilet-
ries and Accessories Workers Union, Local 21906, AFL-CIO,
or any successor labor organization, as the collective-bargaining
representative of our employees, unless and until said organiza-
tion has been duly certified by the National Labor Relations Board
as the exclusive representative of such employees.
WE WILL NOT promise benefits to our employees in connection
with union activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist District
65, Retail, Wholesale and Department Store Union, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of
such activities, except to the extent that such right may be af-
fected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL make Edgar Moore whole for any loss of pay suffered
from July 24 through 28, 1959, as a result of the discrimination
against him.
All of our employees are free to become, remain, or to refrain from
becoming or remaining members in good standing in District 65,
Retail, Wholesale and Department Store Union, AFL-CIO, or any
other labor organization, except to the extent that this right may be
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affected by an agreement in conformity with Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
I. POSNER, INC.; POSNER DISTRIBUTING CORP;
AND POSNER BEAUTY AND BARBER SUPPLY
CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein, as amended, alleges that the Respondent Employer 1 has
violated: Section 8(a)(5) of the National Labor Relations Act, as amended, now
73 Stat. 519, by negotiating with District 65 in bad faith; Section 8(a)(3) of the
Act by discharging Samuel L. Simpson on July 24, 1959, and Edgar Moore on
July 25, 1959 (later reinstating both of them), and changing conditions of employ-
ment of various employees, all of this because of the employees' lawful concerted
activities, and by financially rewarding employees who abandoned a strike and re-
turned to work; Section 8(a) (2) of the Act by unlawfully assisting and supporting
Hair Goods, Toiletries and Accessories Workers Union, Local 21906, AFL-CIO,
in many and various ways; and Section 8 (a) (1) of the Act by said alleged acts and,
as further detailed in the complaint, by threats to cease operation and by offers and
promises of benefits. The answer admits the discharges alleged but denies the
allegations of unfair labor practices. The complaint also alleges and the answer
denies that the employees went on strike and that such strike was caused and pro-
longed by the Company's unfair labor practices.
A hearing was held before me at New York, New York, from January 25 to
February 12, inclusive, and the General Counsel and the Company were then heard
in oral argument. Thereafter, on May 12, the General Counsel moved to reopen
the hearing and consolidate the case with Case No. 2-CA-7270, which had been set
for hearing and was heard on June 1. The hearing in the instant case was on that
motion reopened, argument was heard, the motion to consolidate denied (for rea-
sons sufficiently set forth on the record), and the hearing again closed on June 1,
1960.
To the extent that the motion for consolidation with Case No. 2-CA-7270 sought
to adduce evidence with respect to the "new issues" raised in that complaint, it did
not bear on the issue whether in the instant proceeding it has been shown that the
strike was an unfair labor practice strike; for this is not a new issue raised in Case
No. 2-CA-7270. Admittedly in the latter case the General Counsel relies on the
evidence previously adduced on that issue in this case, which will be decided on the
evidence here received.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATIONS INVOLVED
It was admitted and I find that the Company, composed of the three Respondent
New York corporations with principal offices and places of business in New York,
New York, is engaged in the manufacture, sale, and distribution of cosmetics and
related products; that during the year preceding issuance of the complaint herein
it shipped its manufactured products valued at more than $250,000 from its plant
and store in interstate commerce directly to points in other States; and that the
Company is engaged in commerce within the meaning of the Act.
1It was admitted that the three Respondent corporations constitute a single Integrated
business enterprise, and it was agreed that for the purposes of this proceeding they may
be referred to as the Employer or the Company
I. POSNER, INC., ETC . 1579
It was admitted and I find that District 65, Retail, Wholesale and Department
Store Union, AFL-CIO, and Hair Goods, Toiletries and Accessories Workers Union,
Local 21906, AFL-CIO, are severally labor organizations within the meaning of
the Act.
II. THE UNFAIR LABOR PRACTICES
This case is characterized by a low fidelity to and a wanton disregard of the truth
by witnesses on both sides. Whether we can be, this is something to which we should
not be indifferent. Aside from questions of morals and manners, leaving these to
other forums, the factfinding process in large measure consists of a search, here even
scrutiny, for credible evidence. Whatever the problems in finding the facts, we
are left with no problem of conscience or good taste in making findings contrary
to the express declarations of witnesses who, no matter what their concern, scarcely
left an impression of veracity. Yet a careful analysis of the mass of testimony indi-
cates bits here and there which can be relied on for findings although our attention
for 3 weeks of hearings should be rewarded with more than bits of fact. With
respect to a large portion of the testimony, the analysis will indicate that I have
followed the principle that what should be scorned may not be ignored, lest it be
said that adequate consideration has not been given to some aspects of the testi-
mony? In some instances, particularly with respect to dates concerning which wit-
nesses appeared to be uncertain but where the sequence of events was indicated, I
have synthesized the testimony in making findings.
Confronted with statements which they had made previously and which differed
in material respects from their testimony on the stand, several witnesses made
patently untruthful attempts (considering their manner and the substance of their
remarks) to nullify the earlier statements. I can say with respect to each of them
and all collectively that I do not rely on the later statements and attempts in this
case to explain away the earlier. Of course, except for admissions, we cannot rely
on the repudiated statements as evidence of the facts.
In saying that I find a witness unreliable, I mean neither more nor less than that
I find his testimony unreliable. We are not considering a witness' general moral
standing, his finances, or any other attribute beyond his credibility on the stand.
Discrediting him refers to his testimony at the hearing, and means that he is not
credited or relied on; it does not suggest any lesser or greater reliability than if he
were declared unreliable.3 Of course, an unreliable or discredited witness may be
relied on in part if the testimony in general and ,his demeanor so warrant.
It is unfortunate that some employees, unions, and employers, while they have
every right to be partisan within the limits permitted by the law, do not understand
that they must not violate the law and further that their partisanship does not justify
falsehood. Apparently on the theory that any statement which may lead to a
favorable finding is warranted regardless of its truthfulness, many false statements
were made. A few will be indicated as the occasion and necessity arise to analyze
them for findings. The end does not justify the means.4
With much being currently made of a drastic reduction in "the time required"
[sic] to process cases through the investigatory stages, it should be noted that, with-
out reflection on counsel who tried the case, such reduction was all too evident at
the hearing. The very mass of evidence which was presented, aside from material
which was presumably investigated and laid aside, demanded lengthy preparation.
Speed has apparently replaced thoroughness as the test of performance and the
measure of achievement. Inadequacy of preparation has been substituted for an
imagined inertia. Aside from irregular presentation of evidence because of ques-
tions which the General Counsel frequently disposes of in advance of hearing (who
are supervisors, which employees work in which departments, etc.) and delays while
issues were explored and stipulations sought off the record and also while witnesses
were questioned concerning matters which might be stipulated, one can wonder
concerning the extent to which the substance or merits of the case were thus af-
fected. If "the time required for litigation has actually increased," a reason for such
increase has been indicated; as also the time required for review of the record and
for decision. As one whose work is affected if not altogether determined by the
2 Arrow Gas Corporation, 124 NLRB 766. Cf Carnegie-Illinois Steel Corporation
(Joliet Coke Plant), 95 NLRB 763, 765. I can only assume that in recently noting that
"some of (the record facts) were not alluded to" [sic] (Morris and David Yoseph, d/b/a
M. Yoseph Bag Company, 128 NLRB 211) the Board has meant that those record facts
which point to and are necessary for correct findings, conclusions, and recommendations
should be cited; not that all record facts need to be "alluded to."
8 Jackson Maintenance Corporation, 126 NLRB 115.
4 Romans 3: 8
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preparation of counsel and whose interest lies in orderly presentation of all of the
material testimony, I may be compelled, except for occasional attempts to elicit
additional relevant evidence, to make decisions which, perforce based on the evi-
dence submitted, are denied the advantage of other proof which might be made
available. The existence of such other proof is suggested by assurance of counsel
that it will be later made available although such promises are not thereafter per-
formed. (This statement of a matter which clamors for expression is condensed
despite the Trial Examiner's interest in the subject and his concern for full and
fair yet expeditious treatment of all issues.)
A. Supervisors
According to the Company there are approximately 70 employees 5 but no super-
visors within the meaning of the Act except Posner, the active head and secretary
of the three corporations, with some occasional assistance from Mendelson. Called
near the close of the case, the latter identified himself as supervisor primarily in the
store and in charge of beauty supply sales and installations. Whatever the top man-
agement aspects, I do not credit Posner's testimony that this is "a one-man business";
certainly not with respect to employee relations and supervision. This may indeed
be and evidently is a one-man operation insofar as overall control and management
are concerned. Even Mendelson may only recommend hiring and firing, and no
others do that. But the very extent to which Posner spreads his supervision indi-
cates that effective and responsible direction of employees must rest with others,
as the evidence shows that it does. Aside from the improbability of a lone super-
visor in this four-floor (including basement) manufacturing and shipping operation
with adjoining office and store as well as outside sales functions (Posner is "in and
out of that shipping department possibly 50 times a day"), I credit the testimony
that Brown, Plotzker, and Grant were supervisors within the meaning of the Act.
(I have not relied on union card designations of them as supervisors. Neither
have I relied on comparative wages since in some cases at least greater payments
appear to reflect greater skill. McGee's salary, for example, although approximately
twice that of many of the production and maintenance employees, is comparable
to that of a rank-and-file journeyman carpenter. On the other band, in such cases
as Brown's, it is unnecessary to cite wage differentials.)
From the entire testimony, and having observed him at the hearing, I believe that
the picture painted by company witnesses of Posner as ubiquitous, to quote the
General Counsel, was in large measure correct. He "gets around" and indeed tries
not to "miss a trick." This very activity, personal interest , even paternalism and
personal kindnesses , and self-injection into situations bear on the issues of knowledge
and support of union activity, infra. But not even Posner could or has conducted
the corporations here without delegation of some responsible supervision beyond
the limited extent acknowledged with respect to Mendelson. Nor are District 65's
attempts to obtain support from supervisors determinative of their status. Such
attempts may reflect on that union's good faith and may conceivably impinge on
employees' freedom of choice. But the issue of supervisory status depends on the
facts in connection therewith just as, even where employer responsibility is found
because of a holding out or similar connection with an employee, such responsibility
is not affected by the fact that the employee has engaged in union activity and is even
to be included in an appropriate unit . Nor does the element of estoppel which may
attach to a supervisor's acts which a union has itself encouraged affect a finding con-
cerning his other activities.
Without undertaking to repeat the numerous references to and descriptions of
Brown's duties, I find that while he performs duties similar to those performed by
others in the shipping room and does not hire or fire or effectively recommend such
action, he directs the shipping department employees in selecting , packing, and stencil-
ing orders; he reported Simpson's eye trouble to Posner as soon as he learned of it
(he considers it his own "or anybody else's duty to report it to some official so that
something could be done about it and so that someone would know about it"); and
shortly before Simpson's discharge Posner told Brown that "a lot of mistakes were
being made." I do not credit Brown's testimony that Posner frequently comes into
the shipping room and tells him where and how and which shipments are to be made,
that Posner gives such instructions to others also, and that Brown himself also tells
those things to the employees: aside from the question whether repetition by Brown
of Posner's instructions to the others would indicate Brown's supervisory status, I do
not believe that Posner can or does give such detailed instructions to the various em-
ployees or that Brown merely repeats what Posner has already said to them. If on
5 Cf. Mt. Clemens Metal Products Company, 126 NLRB 1297
I. POSNER , INC., ETC. 1581
the other hand , Brown 's instructions to the men are not a mere repetition of Posner's
but supplement them, then Brown 's duties are likewise on a supervisory level. Nor
do I credit Brown's attempts to explain away several portions of an earlier statement.
(I have not relied on testimony by Doswell , District 65's field organizer , that Brown
said he is in charge of the shipping and receiving department and insisted on his super-
visory status for that reason and also because of his higher salary and because he
allegedly has the right to discharge or recommend discharges.)
Like that elsewhere , the work on the second floor , this being the hair department,
is allegedly supervised by Posner alone . To call this vicarious supervision would be
incorrect : there is no substitute for Posner . Nor is the department run by remote
control ; Posner allegedly comes into the department and conveys his instructions to
Plotzker and the girls working there . In addition to the instructions which they re-
ceive directly from Posner , the girls also are favored with messages which Plotzker
relays. One is left to guess whether Posner , to avoid overloading the girls, parcels
out his instructions to them so that Plotzker can transmit them in easy stages. Here
again it is difficult to avoid the element of such discretion on Plotzker 's part as might
indicate that he is a supervisor . That Plotzker's work is highly skilled is not denied.
He calls on the girls to improve their work and sometimes returns 6 it to them for
reworking ; he also exhorts them to greater production . One of them , Palmer, re-
luctantly testified that Posner comes to the second floor once or twice a week. I
find that Plotzker responsibly directs the work of at least the four women in the hair
department and is a supervisor within the meaning of the Act.
According to Posner , Pollock , a chemist and production man, had been in charge
of the third floor, and Grant , the only woman on the floor , took orders from him.
Pollock left at the end of July and has not been replaced . Posner testified that he has
had to take Pollock 's place . Since a month intervened between Pollock 's departure
and the strike , we can hardly rely on Posner 's explanation that "because of this strike
business, we didn't hire anyone" to replace Pollock . Aside from the time lag, no
connection has been indicated between the failure to replace Pollock on the one hand,
and on the other , plant operation before the strike , immediately after it was called,
and thereafter when most of the employees continued or returned to work . Accord-
ing to Grant herself, Pollock "took care of everything up there , supervised every-
thing; the workers ." He "was over" the workers , "saw that everything was taken
care of, and went around to see that it was done correctly ." As noted, Pol-
lock left the last of July. Grant maintained that her duties were "The same as every-
one else working," yet she does "supervise some of the work ." 'It is not claimed that
even Posner, ubiquitous as he was, went around to see that everything was done cor-
rectly on the third floor ; nor are we to assume that after Pollock's departure there
was no such supervision . While the extent of Grant 's supervision of "some of the
work" is not detailed , the evidence and the circumstances thus depicted indicate that
she is a supervisor within the meaning of the Act . ( It was Grant who called the
third floor employees together when Posner addressed them before work started on
July 27 or 28.) Such items as Grant 's reference to herself on a union card as super-
visor, her explanation that this meant only that she did "special work," and her
alleged nonsupervisory "watching" of other employees who after the first week or
two do not "particularly" have to be shown how to do things-these reflect on
Grant's credibility.
The General Counsel early promised to prove that McNeil was an "assistant super-
visor" and an agent of the Company so that it was bound by his statements . We shall
leave the question of agency for consideration in connection with the relevant evi-
dence . Neither in the shipping department , where he loaded and unloaded trucks and
handled bills as he performed that work , or on the third floor , to which he was trans-
ferred and where he loads elevators , does McNeil appear to have performed super-
visory functions . I find that he is a rank -and-file employee.
McGee is a carpenter and works mainly in setting up barber and beauty shop dis-
plays under Mendelson 's or Posner's direction . While he earns more and appears
to be relied on to a greater extent than Lowery , the Company 's other carpenter,
McGee is a rank -and-file employee . I make this finding although I do not credit
his statement , referring to Lowery , "I guess you can call us partners . We don't have
any boss among us ." In his closing argument, after considerable time spent on this
point, the General Counsel admitted that McGee , like several others who had been
pointed to as supervisors , is not a supervisor.
"Cf. Mayfair Industries, Incorporated, 126 NLRB 223, in which the Board held that
mere right to reject defective products does not indicate supervisory status in an in-
spector who works under a chief inspector.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vogel performs rank-and-file duties in the store. He assigns deliveries to the
various drivers according to location, and checks in their money and returns, but
does not have or exercise authority over them or their performance. I have not
overlooked Moore's testimony that Vogel once said in the presence of and pre-
,sumably to Posner, "I am the store manager and allow me to run this as I see fit";
and that Vogel assigned work to employees of the store and instructed and repri-
manded them. I credit Vogel's testimony that he was not in charge of the other
store employees. Nor do I find probative Moore's testimony that, after getting their
trucks in the morning, the drivers "check in" (as Posner also testified) with Vogel,
who sends them to the factory for articles to be shipped from there. According to
Moore, supervision over him was exercised by Mendelson. Certainly Vogel's super-
visory authority is not shown by the testimony that truckdrivers checked with him
concerning orders on hand in the store for delivery.
Neither have I overlooked Mendelson's testimony that when he and Posner were
out, as infrequently occurred, Vogel was in charge of Moore's activities. Vogel ex-
plained that at such times he is in effect told to "mind the store." Mendelson super-
vised Moore most of the time, and Posner, did at other times. The former's prior
statement, which he did not and was not asked at the hearing to adopt, is not to be
accepted as proof of the facts therein declared; and the statement that, when Vogel
went on vacation, Mendelson "took direct charge of Moore" may indicate no more
than that Moore now checked in with Mendelson and received store shipments from
him. The statement recites that Vogel complained to Mendelson concerning Moore;
it does not appear that Mendelson relied on such complaint or that Vogel effectively
recommended Moore's discharge. Any supervisory authority which Vogel has is
of a "sporadic nature" [sic] 7 and is exercised on an infrequent basis.
Although employee Butler testified that Carnegia directs the girls in the office in the
performance of their duties, telling them when, how, and what to do, and frequently
criticizes them, he testified further that Posner's secretary, Mulct, also directs the
girls. Butler "could not quite follow, because there seemed to be an overlapping of
authority . . . at times it was conflicting to know who was really in charge." Such
testimony does not establish supervisory authority on the part of either Carnegia or
Mulct, whose nonsupervisory functions were detailed. Here we must bear in mind
that differences in rank as evidenced by the type of work performed, responsibility
inherent in such work, and salary received do not establish supervisory status.
Butler once heard Posner say that Carnegia was in charge of the office (Posner denied
saying this), although it was never said to Butler directly. One of Butler's duties
was to take deposits to the bank. Neither this nor any other duty had been assigned
to him by Carnegia. It does not appear that she had originally assigned functions to
Butler or that she did more than combine or coordinate her own duties with those
which had been assigned to, others. Such activities as making out deposit slips and
handing them to Butler with the money to be deposited do not indicate supervision by
Carnegia or the right to supervise.
Whatever the facts may be, the evidence indicates no more than that the General
Counsel was groping for proof. Similar claim of supervisory status was made con-
cerning Randle, and with perhaps better reason in view of a statement which she had
previously issued; but the General Counsel abandoned that claim. According to
Posner, another employee, Chessman, had been in charge of the office (although
presumably not a supervisor) until the end of August, when he left. If Carnegia had
not been in charge and was not after Chessman's departure, objection could be made
that such a finding would indicate that no one was in charge of the office. But we
would have a similar objection even if the evidence showed that Carnegia was in
charge since she was ill and, for several months prior to the hearing, frequently ab-
sent. With Posner's office opening on the larger office where these employees worked,
we can believe that he personally did supervise these. From Posner's description of
their duties, it does not appear that Carnegia or Mulct are supervisors. The evidence
by the various witnesses indicates that the two perform rank-and-file duties and look
to other employees for performance of various functions as previously assigned; but
such assignments are not made by Carnegia or Mulct, and the latter two exercise
neither authority nor control over others.
In various instances connected with some of these and others who are found to be
rank-and-file employees, we shall see apparent approval and ratification by the
Company of the acts and statements of such employees. It is unnecessary to show
authorization at every step or of every act performed by an agent. A general holding
out or similar connection with the Company is sufficient basis for finding company
'Fannie Farmer Candy Shops, Inc., 112 NLRB 299, 301. As for some of these being
"cloaked with authority," of R & J. Underwear Co, Inc., 101 NLRB 299, 301; Joe
Scharf stein & Phil Scharfstein, d/b/a Stein-Way Clothing Company, 103 NLRB 1314, 1320
I. POSNER, INC.,_ETC. 1583
responsibility for similar or related acts .8 In different but related circumstances the
Supreme Court has declared that a steward was acting within the apparent scope of
his duties and functions and that the union was liable for his acts "even though the
acts . were not expressly authorized or might not be attributable to (it) on strict
application of the rules of respondeat superior." 9 .
B. The alleged violation of Section 8(a) (3)
Moore was employed by the Company in October 1958. His duties were
principally to drive' a truck and make deliveries. At the time of hiring he explained to
Mendelson that he was well acquainted with the boroughs of Manhattan and the
Bronx in New York City; fairly well with Brooklyn; and not well with Queens.
Mendelson did not deny this conversation, and testified to a later one to the same
effect. Doswell's testimony that on July 27 he heard Moore tell Posner that he was
familiar with all of the boroughs is but a reflection on his own credibility; Doswell
apparently but mistakenly thought that such testimony concerning Moore's knowledge
or ability would be helpful as showing his ability on the job.
Moore was told that he would work in Manhattan but occasionally, when another
driver was off, he would be sent to the three other boroughs named. While there is
an inconsistency in Moore's testimony that he went to the Bronx once or twice a
month and to either that borough or Brooklyn once or twice a week, yet to the latter
only when the regular driver was on vacation; and perhaps further inconsistency in
that, despite the latter circumstance, there apparently were times when he did not
know in advance that he was to be sent to Brooklyn, it appears from all of the
testimony that his services had been satisfactory: he had received a $5 increase in pay
4 or 5 months after he was hired, his latenesses were occasional, like those of other
drivers, and except for once when he had overslept, he advised Mendelson in advance
and was excused on the two or three occasions (none in July) when he came to work
1 or 11/2 hours late because of singing engagements the night before.
Mendelson denied Moore's testimony that the latter told him about stopping at
home for lunch and that he did not complain about this. He also denied that he had
ever given Moore permission to come in late. The fact remains that nothing had
been done about such lateness; it had been authorized in advance or otherwise per-
mitted to continue. According to Mendelson, Moore had been late and brought
back deliveries "for quite some time." Mendelson "let it go for a while," but when
another driver went on vacation and Moore, taking over his territory, brought back
more orders, Mendelson "finally made up (his) mind to let him go."
The occasion of Moore's oversleeping was about -a month before his discharge;
although his reply to Posner at that time was insubordinate and might have warranted
discharge, Posner evidently did not so regard it and took no action thereon. Their
conversation reflected the easy informality, even intimacy (and "uneasy" arguments),
which prevailed among employer and employees here. Moore was insubordinate on
another occasion in June when he ignored Posner's instructions concerning deliveries;
no action was taken against him therefor, nor was such conduct cited as a reason for
his discharge.
Like other drivers, Moore sometimes failed to make all of his deliveries during a
given day, but he was never reprimanded concerning his work. Living near the plant,
he frequently went home for lunch; but when he was unexpectedly assigned to other
boroughs, he went home to prepare a sandwich and coffee to take with him, and so
informed Mendelson.
Turning now to Simpson and his work, be had been employed by the Company
as a shipping clerk since February 1958. Since 1956 and throughout his employment
here he had been suffering with bilateral glaucoma. Although the condition had not
worsened during his employment, it affected his work at times: once or twice a month
while working he would suffer 5- to 10-minute attacks of severe headache which
would bring him to tears. He told Posner of this condition when he was hired.
About the middle of 1958 and once or twice thereafter he received notice from the
Army to report to a hospital for examination; each time he told Posner the day before
and received permission to go. No supervisor had ever "criticized (his) work in con-
nection with (his) eye disability."
Assigned various duties in the shipping department, Simpson was given a $5 in-
crease about the middle of 1958, and a $3 increase in or before June 1959. While
8 Cf Local 294 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America; et al. (K-C Refrigeration Transport Company, Inc ), 126
NLRB 1.
9International Association of Machinists , Tool and Die Makers Lodge No. 35 (Serrick
Corp.) v. NLRB., 311 U.S. 72, 80.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Posner criticized his work as he did others (Simpson's version was that Posner
"would criticize any and everybody at any given time he saw fit"), the sum total
of the testimony on this point indicates that Simpson's work was satisfactory and
certainly as good as that of other employees.
The first contact by an employee with District 65 occurred on July 8, when Moore,
on his own initiative , arranged to and did meet Doswell a few blocks from the plant.
Moore signed a District 65 membership and authorization card that evening and
Doswell gave him cards to be signed by other employees. Moore gave a card to
Faucette on the sidewalk in front of the store, and one to Davis. (The latter two are
clerks or porters in the store.) Faucette returned the card, signed, the next day, also
on the sidewalk; Davis spoiled his and signed another later at District 65's office.
I do not credit Doswell's testimony that Faucette signed his card in Doswell's
presence at the union hall on July 15. Faucette himself testified that he was given
the card outside the plant by an employee whose name he thought was Steve and
who worked in the shipping room-this would be Simpson! According to Faucette,
he filled the card out at home during lunch time and then returned it. If any of this
can be believed, it would appear that Faucette dealt with Moore or Simpson near
the plant. He did not sign the card at the union hall in Doswell's presence.
Before he met Doswell, Moore had frequently talked to other employees about
bringing in a union, and thereafter he asked several whether they wanted to join.
Mendelson observed him in conversation with others at the freight entrance during his
vacation, which began about 2 weeks prior to his discharge. On July 20, at the
second of a series of union meetings , Moore was elected a member of the organizing
committee. (He placed this at the first union meeting on July 15.) Moore attended
other union meetings and saw Brown at one of them.
Simpson signed a union card on July 15 during lunch time and outside the plant,
he testified. (In his attempts to authenticate various cards, Doswell maintained
that this card, with nine others, was signed in his presence at the union meeting on
the evening of July 15.) Simpson also distributed cards to other employees, and
some were signed and returned to him, although the testimony as to some of these is
equivocal. Simpson was also elected to the organizing committee on July 20. On
July 22 he invited Brown to a union meeting to be held that evening. There Simpson
introduced Brown to Doswell, and the three spoke of union matters.
On July 25, Mendelson discharged Moore, telling him that when he hired him he
had thought that Moore knew Brooklyn, the Bronx, and Queens, but that he did not
seem to. According to Mendelson, Moore had for months been reporting late and
failing to make deliveries, and had earlier claimed that he "didn't know certain
boroughs." Aside from the discussion at the time Moore was hired, he had been on
the job for 9 months during which his knowledge of the various boroughs, even if
deficient, had apparently been adequate. According to Moore, no fault was found
or claimed with respect to his work or attendance, nor does it appear that these were
or had become unsatisfactory. I do not credit Mendelson's testimony that he warned
Moore "at least ten or twelve times" that he would be replaced if he did not come to
work on time. We shall see that Posner allegedly relied on various other reasons for
discharging Moore.
Moore's discharge followed by 1 day that of Simpson, who on the evening of July
24 was told by Posner that the bills showed that he had been making too many mis-
takes, and was thereupon discharged. Actually, bills listed the names of three
employees: the one who picked the order, the one who checked, and the one who
packed it. No reason was offered for singling out one of these; there is no credible
evidence that Simpson did not perform his duties properly or that errors found were
his.
Posner had earlier declared in a statement which was dated September 9, 1959,
and which he maintained had the "gist" of the facts that it was "about a week" after
these discharges that he first learned of District 65's organizational activities, this
being when an organizer stopped him on the street and Posner referred him to his
attorneys. Posner explained that he was here referring to Robinson, District 65's
secretary-treasurer. Whether Robinson or Doswell, this evidently occurred on July
27 or 28, for on the latter date, after Robinson had spoken with Drimmer, the Com-
pany's attorney, the latter advised Robinson by telegram that Moore and Simpson
would be reinstated and that the Company would meet with District 65. If Posner
was in error in saying that about a week elapsed between the discharges and his
conversation with a District 65 representative, that does not itself show knowledge
of union activities before the discharges; but it does further indicate the unreliability
of his denial that he had early knowledge and of his testimony generally.
We have already noted generally the extent to which Posner followed and even
injected himself into the employees' activities. Whatever the limits of the "small
I. POSNER, INC., ETC. 1585
shop" rule,'° they should and can be here extended. Whatever the normal limits
unposed by concepts of proper administration, effective overall management, per-
sonal self-restraint, and even physical capacity, it must be found that Posner's contacts
and intimate knowledge of what occurs at his premises transcend normal limits.
Even if he must depend on intermediate supervisors perhaps only because of the
layout of the plant and store, his activities and his awareness of detail are extensive.
Posner makes it his business 'to know what goes on, and he is not at all reluctant to
join in various activities. Over and beyond the call of duty, this is a matter of
personality, evident to one who heard Posner on the stand and observed him during
3 weeks of hearing. This is noted here to make it clear that the relationship indi-
cated would support findings of knowledge of details and activity in the plant were
it necessary to cite more extensive details or less apparent activity. I find that
Posner was well acquainted with his employees' union activity, whether on behalf
of or against District 65; and more particularly with those of Moore, the sponsor of
District 65's activities here, and Simpson, an active supporter. (With the campaign
under way, other employees became more active.)
On July 28, after District 65 communicated with the Company's attorney, the
latter sent telegrans to Moore and Simpson, who were then restored to their jobs.
Simpson was paid for the time lost. Moore told Posner on July 29 that he was
busy that day; he returned to work on the 30th, and would be entitled to backpay
through July 28 on account of any discrimination which may be found in connection
with his discharge on July 24.
While reinstatement is not considered an admission of violation by the Company,
which allegedly rehired the two men because of District 65's threat to strike (the
Company does not appear to have been intimidated by the later threat and actual
strike), the renewed employment reflects on the claim that these were incompetent
employees. It does not appear that after their reinstatement and during the month
of August through the 31st, after which they went on strike, their performance
on the job was different from what it had been before; that they were reprimanded;
that the alleged ignorance of the one concerning routes or the ailment of the other
adversely affected their work; or that the Company was dissatisfied with them.
Posner's testimony concerning the reasons for the events leading up to the dis-
charge is of interest. He testified that he "had been investigating for several
months"; Simpson had made many mistakes as picker, packer, and checker; and
Posner had himself observed Simpson making such mistakes. During this period
Posner sent Simpson to Posner's doctor, paid medical bills for him, and gave him
time off to go to the doctor. There is no evidence that these many mistakes were
pointed out to Simpson. From Posner's testimony one can conclude that for a long
time he overlooked Simpson's alleged incompetence and shortcomings, and even
helped him personally; but one "shortcoming" was not overlooked, Simpson's activity
on behalf of District 65. No sooner did that manifest itself than Posner discharged
him.
With respect to Moore, Posner allowed his imagination free rein in citing many
alleged reasons, which need not be listed here and some of which were not even
referred to by Mendelson, who took the action against Moore, or by the latter.
Posner's statement to Moore in August that he had been discharged for making anti-
Semitic remarks is without support, had no connection with the reasons which
Mendelson gave to Moore or at the hearing, and serves further to point out the
absence of valid reason for the action taken against Moore. Confronted with the
fact that he had given Moore an increase in salary, Posner offered the explanation
that it was prompted by Moore's need, although he was not entitled to it. Simpson's
and Moore's alleged shortcomings "apparently became intolerable only after they
had joined the union." ii I find that each of them was discriminatorily discharged in
violation of the Act.
Further violation of Section 8(a) (3) of the Act is alleged as follows:
On and after September 1, 1959, Respondent Posner financially rewarded those
of its employees who abandoned the strike described above in paragraph 16
and returned to work on September 3, 1959.
iu Wiese Plow Welding Co, Inc, 123 NLRB 616 As in that case. «e have here other
elements besides the size of the plant from which knowledge and discriminatory motive
are to be inferred
11 N.L R B v Electric City D-yeing Co , 178 F 2d 980, 983 (C A 3) See also N.L R B
v. Whitin Machine Works, 204 F 2d 883 , 885 (C A 1) , C it J Camp, Inc , et al , d/b/a
Kibler-Camp Phosphate Enterprise , 107 NLRB 1068, 1084
624067--62-vol. 133-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall consider infra the strike and the events leading up to it. "Financially
rewarded" suggests that those employees' return to work prompted increased pay-
ments to them; or perhaps that the lure of increased payments prompted such return
to work; but of this there is no proof. We are asked to infer violation from the
fact that those employees who worked only on August 31 and thereafter remained
on strike were paid only for the day on which they worked, August 31; while those
who returned to work on September 2 and continued to work for the remainder of
that week, having missed only September 1, were paid for the full week. (This is
a variation from the allegation of return on September 3. We shall also consider the
case of five employees who were paid for 24 or 32 hours that week.)
The General Counsel, without pinpointing the facts in this connection, claims that
employees who stayed away from work only on Tuesday, September 1, the first day
of the strike, were paid for the entire week while those who returned later that week
were allegedly paid only for the time spent on the job, this indicating discrimination
against the latter for their presumed support of District 65 for more than the first
day of the strike. But while it was stipulated that no deduction was made for those
who returned on September 2, there was no stipulation concerning refusal to pay
or deduction from those who returned later. Some employees testified that they
returned on September 2, others later that week. According to some of the General
Counsel's witnesses, few of the strikers returned on September 2, half or more of
them doing so on the following day. Posner testified that by September 3 all had
come back to work except those who have not at all since the strike began; and that,
of those who ultimately returned, all of the manufacturing and most of the shipping
employees were back by September 2. The proof on this, while lengthy, was not
specific. The payroll information before us shows that some employees returned to
work sometime during that week and were paid for part of the week only.
If the reward had been, as claimed, only to those who remained away from work
for but 1 day, these would have been paid for 40 hours that week; while those who
were out for 2 days would have been paid for only 24 hours, and none would have
received 32 hours' pay. But it appears that several employees were in fact paid for
32 hours that week and some for 24. There does not appear to be any reasonable
basis for finding discrimination in these fragments. In fact it was evident at this
point in the hearing that proof was being sought or hoped for which had not previ-
ously been available to the General Counsel. If any employees were discriminated
against in this manner, they have not been identified. Certainly there was no dis-
crimination for failure to pay beyond August 31 those who have not worked since
that day.
As for those who were named as having been paid for 24 or 32 hours, there is no
evidence that these were discriminated against by being denied payment, which others
received, for September 1 because they did not return on September 2. If they
returned after September 2 (this is the General Counsel's assumption and the basis
for his claim of discrimination), they could not have worked 4 days or 32 hours.
One might guess that the employees credited with 32 hours worked for only 24 (or
less ). I would hesitate to draw any conclusion from the limited evidence thus
submitted. Further, and aside from this maze of inconclusive testimony and argu-
ment, there is some basis in the record to indicate that those who returned on
September 2 may have stayed out involuntarily the day before in the face of mass
picketing, and that the Company, refusing to penalize them for such absence, indem-
nified them; this being compared with payment for time lost because of illness as
distinguished from occasions when Posner "felt that somebody just stayed out (when
he) would deduct."
Certainly from the point of view of those employees who lost no time at all from
their jobs, there is no basis for finding discrimination to discourage or encourage
membership in a labor organization by virtue of the fact that some employees
received pay although they struck for the first day. If without inducement or advance
promise, strikers were thus found to have been encouraged to return to work, it
could as well (or as poorly) be urged that those who did not strike would be or
were encouraged to cease work if only for 1 day; or that they were discriminated
against because they lost no time from work vet received no extra pay. To say
more would be to pay undue attention to this trifle; it has not been overlooked
This allegation is also cited as indicating assistance to 21906. I do not find
such assistance here. With respect to the issue of interference with concerted activi-
ties under the general allegation of violation of Section 8(a)(1), it does not appear
that any rewards were promised strikers to induce their return. Nor is this a case
of attempt to undermine a majority representative by threats to strikers or even an
attempt to persuade strikers to return.12 On the evidence received, it cannot be said
12 Cf. Webb Wheel Division, American Steel & Pump Corp ., 121 NLRB 1410.
I. POSNER, INC., ETC. 1587
that the Company interfered with concerted activities by paying employees who
struck and were out only on September 1 or for some other part of the week.
It was stipulated at the hearing that increases were given to 15 employees, including
3 clericals, between September 1, when the strike commenced, and January 1, 1960,
the specific dates listed falling between September 11 and October 23. One can
but guess that these facts were submitted in connection with the same allegation
concerning financial rewards; certainly no other bearing has been indicated. (The
allegation concerning inducement of strikers to return is considered infra in con-
nection with Section 8(a)(2) violations.) But most of these employees had ap-
parently not "abandoned" the strike or "returned to work on September 3"; they
had not joined the strike. This is not to suggest an omission of an allegation that
nonstrikers were thus favored; most of them got no such increase. It appears only
that these facts, made available at the hearing, were apparently thrown into the
hopper in the hope that they might prove something. If materiality to the issues
has not been shown, the testimony was received and has been considered.
Butler, employed as a bookkeeper, impressed me as a generally reliable witness,
his testimony being detailed, forthright in the main, and consistent although he
was exposed to a searching cross-examination. Before the Company's first formal
negotiation meeting with District 65 on August 5, Doswell telephoned Posner and
told him which of the employees, Butler among them, were on the negotiation com-
mittee and would attend the meeting. That same day, Posner, telling Butler that, if
he did not like it, he could go elsewhere to work, took the various books and ledgers
from him, put them into a desk behind Butler, and told him that whenever he needed
a book he would have to ask the head bookkeeper for it. This may have interfered
with the Company's work but it would be dignifying this to say that it was dis-
criminatory in regard to Butler's conditions of employment or that it interfered with
his concerted activities. It has not even been shown that he was inconvenienced
or that anything other than less accomplishment for the Company resulted.
Later that day, Posner told Butler, who was on his way to the bank to make a
deposit, that he should leave the office by the front door thereafter instead of through
the side door onto the loading platform and then past the main or front entrance;
Posner was allegedly concerned about possible robbery. He again reminded Butler
that he was free to leave if he did not like it. Whatever these incidents disclose
concerning Posner's attitude toward District 65 and his relations with his employees,
it is unnecessary and I am reluctant to base further findings of discrmination on these
trifles, it being alleged that Posner violated the Act by making the bookkeeping
"more arduous and less agreeable," and that he forbade Butler to enter other
departments. If the latter's work was otherwise limited by denial of access to other
departments as when he had to get Posner to sign a check, with the result that
someone else would submit the check to Posner or signing might be delayed until
Posner returned to the office; or when Butler would otherwise have given a check
to a deliveryman, the offense is slight. It is neither claimed nor does it matter in
view of the various findings herein that interference independent of discrimination
occurred if Butler was forbidden to go into the plant or store when his work did not
require it. (We are not at the moment considering disparate treatment accorded
District 65 and 21906.)
C. The alleged violation of Section 8(a) (5) 13
After the initial contact on July 28 between District 65 and the Company's at-
torney, company and union representatives met five times, the first meeting on
August 5 and the last on August 31. Admittedly the Company insisted on a Board
election prior to recognition of District 65 as representative of its employees. If,
by the discharge of Simpson and Moore or by other violative acts, the Company
was estopped from questioning District 65's majority,14 a showing here of District
65's majority in the unit as alleged is nevertheless a necessary condition to any find-
ing of refusal to bargain. The General Counsel undertook to make this showing
at the hearing by the production of cards.
13 This subsection contains not merely the findings of fact with respect to the alleged
refusal to bargain, or the findings with reasons therefor It is a detailed analysis such
as has not been received from counsel but which is made necessary by a review }rocedure
which lacks the advantage of observation of the witnesses and may not reflect as thorough
a knowledge of the record This analysis may serve to prevent at least some confusion
It should perhaps be sufficient to state that testimony concerning certain elements (nam-
ing them) is not credited, this with the reliable eiidence, resulting in the findings made
14 Joy Silk Mills, Inc v NLRB , 185 F. 2d 732, 741 (D C D C )
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its discussions with the Company, District 65 urged a unit consisting of all
office clericals and store sales employees as well as production and maintenance
employees, while the Company apparently claimed that a production and maintenance
unit was appropriate. Sometime between those discussions and the hearing there
appears to have occurred a reversal of positions. Absence of functional integration
and mutuality of interests suggests that an all-inclusive unit would not be appropriate,
but that one limited to production and maintenance employees including the three
inside store employees as agreed and truckdrivers would be appropriate.15
With District 65 claiming a different and larger unit, there would be no basis for
the allegation that the Company refused to bargain with respect to the unit alleged
in the complaint, a demand or request being necessary before we can find a refusal
thereof. But we do not reach the question of appropriateness of the unit requested
by District 65 or of that alleged in the complaint, or of the Company's good faith
in refusing to recognize District 65. Many days were spent on testimony concerning
the cards offered on behalf of District 65. The testimony clamors for consideration,
and we must consider the number and validity of the cards. But although the clamor
may remain, we do not have necessary proof.
While we shall take note, infra, of the General Counsel's claim of majority on Sep-
tember 1, when a strike commenced, the complaint alleges a majority on or before
July 27, 1959. (Only one card is dated after July 27; that one on the 29th although
it was allegedly turned over to District 65 with others, most of which had allegedly
been signed a week or two earlier.) Not until the second week of the hearing did
the General Counsel learn who worked where and which individuals were included
in a given unit. It was finally stipulated during the third week of the hearing that
there were 42 employees in the production and maintenance unit alleged by the
General Counsel, and to these must now be added 3 who we have found were not
supervisors, for a total of 45 in the stipulated unit.is District 65's percentage of
cards would be lessened were we to include in the unit the office clericals, outside
salesmen, or supervisors as noted in the margin. For present purposes we can con-
fine ourselves to the group most favorable to District 65, the 42 plus the 3 others
found to be rank-and-file employees. The General Counsel sponsored 38 cards to
show District 65's majority, but the testimony in support of many of these is demon-
strably unreliable and is not credited. We proceed to an analysis of District 65's
cards.
I find valid such cards as Archer's (unlike McGee's, infra), although the signer
indicated something less than enthusiasm for District 65. Archer is literate and
intelligent although handicapped in speech and hearing, and the fact that he signed
and delivered the card is more persuasive than his mental attitude.17 The first card
submitted by the General Counsel is that of Wilkerson, who testified that she worked
for the Company only 1 week. She signed the card at the union meeting of July
22 It does not even appear that she was employed on July 27, Monday, of the
following week, before which no demand for recognition was made. Nor was
Wilkerson included among the employees in the unit as claimed by the General
Counsel. This card cannot be accepted to prove District 65's majority.
McGee signed a card on July 21. He testified that he went to a union meeting
the following day (this was the meeting of July 22) and asked that his card be
destroyed. Doswell told him that he did not have the card with him at the time
but said that he would destroy it. It appears that McGee was put out of the
meeting after he disturbed it with questions and remarks. Doswell denied that
McGee asked him to destroy his card. While McGee impressed me as too glib and
at times unreliable, I credit his testimony concerning his request that the card be
destroyed, and do not credit Doswell's denial . It may be noted that such request
15 Cf. Charles Bruning Company, Inc, 126 NLRB 140
18The employees in this unit are: Eugene Moore, Robertson Morgan Scatee, Archer,
Ramos, Booker , Bush, Matthews, Palmer, Miranda, Shenitzer, Willis, Rodriguez, Xndrade,
Kemp, Ybarra, Cardoza, Freddie Allen, Ronald Bell. Robert Bell Mussenden, Johnson,
Edgar Moore, Gordon, Santiago, Eford, Morales, Simpson, Benson, Allison, Davis, Faucette,
Stearns , Glasser, Schnitzer, Philip Allen, Ross, Lowerv, Coney, Schwartz, Lane, McNeil,
Vogel, and McGee (These were employed on July 27 ) Not included here are 10 office
clericals besides Randle, Carnegia, and Mulct, 3 found to have been production and mainte-
nance supervisors , 2 outside salesmen who are claimed by the Company to be production
and maintenance employees, and 10 other outside salesmen; of these 28, only 1-Iaruson
and Butler signed cards for District 65, and those cards are considered nnfia
17 Consolidated Machine Tool Corporation. 67 NLRB 737. 739, Idaho Poo Pioduccrs,
111 NLRB 93, 107
I. POSNER, INC., ETC. 1589
is quite consistent with his attitude at the meeting and the treatment accorded him.
McGee's card is rejected without reference to his activities on behalf of 21906.
The reference, supra, to Faucette's card leaves it an apparently valid designation
of District 65. But Faucette testified to a threat by Simpson which prompted him
to sign, and I reject this card as proof of District 65's majority. Further, the Moore-
Simpson-Doswell triple play aspect reflects on Doswell's credibility in connection
with the signing of various cards, and having earlier made a general credibility is
finding with respect to Doswell, I do not rely on those cards, which, unlike Faucette's,
depend on Doswell's testimony alone. Such cards appear to have been Morgan's,
Scates', Gordon's, Allison's, and Eugene Moore's.19 No more do I rely on cards
which depend on Morales' testimony alone (he was not certain in his recollection
of all of the cards to which he testified), these being Philip Allen's, Ross', and
Benson's. (Benson was among those who first approached 21906, infra.) Morales'
testimony is replete with contradictions. To list these might serve only to embarrass;
many will be clear from mere reading of the record, without reference to demeanor.
Confusion as to who solicited and obtained cards also appears in connection with
Cardoza's card and Kemp's. Further, they testified to threats by Robert Bell and
Edgar Moore, respectively, when they were asked to sign. These threats were not
denied; and it may be noted that Robert Bell was thereafter recalled and testified
concerning other matters. Both cards are rejected on the issue of District 65's
majority.
Matthews, a frank, honest, and intelligent witness (although his recollection was
refreshed, I am happy to make this observation, rarely warranted in this proceeding),
testified that Robert Bell threatened him with loss of his job when the Union got in
if he did not sign; he took the card from Bell and signed it at the union office. Bell
did not deny this threat either. Harrison testified to a threat by Simpson which
prompted her to sign. This card having been considered for its bearing on the
issue of validity of the cards generally and the circumstances surrounding their
signing, we should note also that it could not in any event be counted as Harrison
is not in the stipulated unit. Matthews' and Harrison's cards are rejected.
I draw no conclusion other than of general unreliability from the fact that Santi-
ago's card is dated July 13 although Morales testified that he solicited Santiago and
received the card after he signed his own on July 15. But I reject Morales' testimony
that he saw Santiago fill out the card and sign it; the name as printed is misspelled,
and it was evident at the hearing that Santiago could not have filled out the card.
I further credit Santiago's testimony and reject, as I do the card, Morales' denial
that the latter threatened loss of job before Santiago signed. Santiago testified also
that from the picket line on September 2 Morales threatened him and then said
that he would get him at home; and that Morales went to his home that very evening,
but Santiago was out. I do not credit Morales' denial of the September threat (this
reflects the character of the picketing) or his testimony that he did call at Santiago's
home, but socially and about the beginning of August.
Miranda, Stearns, Ramos, Rodriguez, Ybarra, Andrade, and Davis testified in
substance that they signed cards for District 65 after Morales had threatened that
they would lose their jobs if they did not sign and District 65 came into the plant.
Stearns' card is the one which is dated July 29; he testified that he gave it to Morales
a few days after signing it. With respect to Ramos' card, if Morales was mistaken
when he testified that Ramos filled it out (it requires no expert to recognize Morales'
handwriting on this card even though "Posner's" is misspelled), he was patently
dishonest when he declared that he did not know whether Ramos can read and
write English. Ybarra testified that he saw Morales give Ramos a card and heard
him threaten Ramos as he threatened Ybarra himself. Davis testified that Morales
had for some time spoken to him about joining and threatened that he would be out
of a job if everyone else signed but he did not, before he made up his mind to sign.
The card which he first signed was given to him by Edgar Moore. In crediting this
testimony concerning threats by Morales and rejecting the seven cards, I have not
overlooked the testimony by Rodriguez, Ybarra, and Andrade that they attended a
is Edgar Moore and Davis testified that the latter's card was signed at the former's
request; Davis testified it was around the corner from the plant TTere, too, Doswell
maintained that the card was signed in his presence at a union meeting
19 While under the Board's decision in Irving Taitel, et al, d/b/a I Taitel and Son,
a partnership, 119 NLRB 910, 912. cards are admissible and probative on the testimony of
union representatives that the cards were in their possession or control and that they had
received them from "key employees" who got them from the signers, I do not rely on
Doswell's testimony concerning these cards
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting of District 65 after they signed; by Davis that he attended three meetings;
by Ramos that he attended one at some time, and by Miranda that he did not recall
whether the meeting he attended was before or after he signed on July 26: it appears
not to have been that of July 20. One may wonder why, if these signed cards under
duress, they attended any meetings . But in this connection we note the testimony
by Bush, called early by the General Counsel , that Doswell threatened him and
"practically forced" him to attend a meeting . (Here again we have a picture of
methods adopted and the prevailing atmosphere .) Bush did not go to that meeting
but did attend three others . (We shall see infra that Ybarra was in the first group
who visited the office of 21906.)
Unlike one whose native tongue is English and so can guess at certain words
even if each letter is not clear, Ybarra, I noted and believe, cannot read the hand-
writing of the General Counsel's representative who tried this case and had earlier
obtained an affidavit from him. It is in that light that I construe Ybarra's testimony
that he filled out several cards for 21906 but cannot read them . He read his own
script, which is flowing and regular , and several printed words on request , giving
some of them a Spanish pronunciation . Actually, Ybarra exaggerated his difficulty
when he testified and repeated that he cannot read English . I find that he was
here taking refuge in a limited "no speak English " claim. He speaks and under-
stands English with apparent ease, and reads it moderately . In the latter connection
we recognize that our spelling is not phonetic and that any difficulty or irregularity
is magnified by a hurried or careless script. Whatever Ybarra's difficulty in reading
script and specifically the affidavit which he executed, and although the statement
recites that he read it, he testified that the General Counsel read it to him before
he signed it. Ybarra was further inconsistent or confused as he testified to two
visits to 21906, one by automobile and the other by subway. This latter was not
clarified or explained at the hearing. Having observed him, my impression of
Ybarra nevertheless is that he was truthful when he testified to a threat by Morales
which prompted him to sign a card for District 65.
Also, bearing in mind the experience of counsel for the Company and his evident
preparation for the hearing , and Posner 's frequent contacts with the various witnesses
(evident in many instances even in the hearing room ), I do not believe the state-
ments of various witnesses that they had not discussed the case prior to their appear-
ance on the stand. (Among these was Willis, whose card has been accepted.)
But the pattern of threats , particularly by Morales , makes entirely credible the
testimony of threats even by those witnesses whose denial that they spoke with
anyone concerning the case I do not credit. From threats at the time cards were
signed to mass picketing , the atmosphere was hardly conducive to free expression
of opinion and uncoerced selection of a bargaining representative.
We have here shortcomings with respect to specific cards, consequent unreliability
which attaches to other cards , and an overall absence of that atmosphere which
warrants reliance on cards as proof of majority . We need not belabor the un-
becoming or violative aspects of coercion by predicants for free exercise of the
right to choose ; we need go no further here than to find that designation of District
65 has not been shown. Omitting Butler's card since he is not in the unit claimed by
the General Counsel , we are left with not more than 14 cards in the 45-employee unit
described supra.
We have not here noted all of the inconsistencies and contradictions in the
testimony concerning District 65's cards . Thus, to cite a few more , Bush testified
that he received several blank cards from Robert Bell and did not distribute them,
but gave them , still blank , to Morales . Yet Freddie Allen testified that Bush gave
him a card which he signed and then gave to Morales. Mussenden and Johnson
also testified that Bush gave them cards, and Robert Bell testified to receiving his
card from Bush , not that he gave cards to the latter . (These 4 cards are among the
14 which have been counted as valid designations of District 65.) If all of this
could be reconciled , the General Counsel, who sponsored these witnesses , scarcely
had time to do that or to seek explanations in advance of the hearing.
But other negative or doubt-producing elements need not be detailed. With
testimony in support of so many of the cards rejected , we cannot rely even on those
cards which have not been attacked. If in a case in which the General Counsel
offered proof of the number in the appropriate unit and the number who were not
members, there thus being adequate basis for reliance on the specific numbers
shown-if in such a case "the Board relies `not on the basis of the Trial Examiner's
computation of the number of the employees in the appropriate unit but rather on
all the facts and circumstances surrounding the execution of the agreement in
question which reveal that the Respondent Union did not enjoy majority status
I. POSNER, INC., ETC. 1591
at that time,' 11 20 we can here certainly cite the surrounding facts and, circumstances
with respect to the establishment of a prima facie case, and in the instant case the
Company has further come forward to refute any showing made?' This is aside
from whatever conclusion might be drawn from the reference to 20 of those who
signed cards for District 65 as having also signed for 21906, in addition to 15
others (some in the unit described, others not) as having signed only for the latter.
The solicitation for 21906 will be considered to the extent necessary in connection
with the alleged violation of Section 8(a) (2).
We cannot rely for proof of majority at any given date on District 65's cards
which were obtained during a blitz campaign in which union representatives entered
the plant, held meetings there, and were compelled to leave only after the police
were summoned. Neither can we rely on any presumed or legally declared con-
tinuance of majority thereafter. Without minimizing the violations found, we
cannot find majority and direct the Company to bargain with District 65 as the
representative of its employees. The rule of Joy Silk Mills 22 concerning continued
and presumed majority after dissipation thereof as a result of unfair labor practices
does not apply where, as here, majority at some time has not been established.
As for the majority of the employees in the production and maintennace unit not
working on September 1 and 2 as proof of District 65's majority, in addition to the
uncertain nature of such proof, we have here testimony that many people were out-
side the plant, with nonemployees coming to "help" District 65. Aside from the
fact that September 1 and 2 are not crucial dates with respect to the issue of ma-
jority and refusal to bargain, it would be necessary to indulge in some presumptions
to hold that a District 65 majority existed on July 27 or before, as alleged, or at
any other time when a request to bargain was made and refused. On the general
question of the value of such proof, many employees, denied the test of the ballot
box, will not withstand the buffeting of the picket line. That some did not work
on the first day of the strike, and some of those on the second does not prove the ma-
jority which District 65 claims. We need not detail the turmoil outside the plant
beyond noting that Robinson himself was no more definite in his testimony than to
say that while he was there that day there were at times employees and other union
members to a total of 50 to 75 besides "substantial numbers' of policemen.
Under these circumstances and bearing in mind that after September 1 or 2
relatively few employees remained on strike, I cannot find that majority on July 27
or September 1 was proved by any voluntary absence from the plant by a majority
of the employees. The tactic of providing a mass of nonemployee supporters to
"help" on a picket line is a matter of union policy. But it does not permit a finding
of majority in reliance upon the number of employees who fail or refuse to go to
work. Quite understandably, Robinson did not appear to know the various com-
pany employees. But he testified that 30 or 32 of them attended a meeting of
District 65 on September 1; at least one of these, McNeil, was not even claimed on
the basis of the card check as a supporter of District 65 although at this meeting,
according to Robinson, he now supported District 65 despite his earlier marked
activity on behalf of 21906. Throughout the hearing McNeil was cited by the Gen-
eral Counsel as hostile to District 65. Neither side called him to testify.
With the number of employees striking or not working on September 1 not ac-
cepted as proof of majority, it becomes unnecessary to evaluate the General Coun-
sel's speculation that the return of so many thereafter resulted from the Company's
unlawful assistance to 21906, infra, and the statement by the latter of what
it would do if selected by the employees. In refusing to hold an election where the
employer has prevented a fair test, we are concerned with the rights of the em-
ployees. The same regard for those rights bars a recommendation that District 65
be recognized as exclusive bargaining representative where, as I have found, so
much of its evidence of representation is unreliable. My credibility finding and
ultimate finding here are that it has not been shown by credited testimony that
District 65 obtained a majority of uncoerced or valid cards or that it has otherwise
proved an uncoerced majority.
20 Bryan Manufacturing Company,, 119 NLRB 502, 506, quoting from Harold Hibbard
and Ben R Stein, Individually and as a Partnership, d/b/a Hibbard Dowel Co, 113
NLRB 28, 29 Since it prominently includes a gross misstatement of fact, I do not
directly cite Hibbard Dowel The Board may here again prefer this alternative and
general basis for decision to that relied upon by the parties Both have been offered
here, so that either may now be declared to be "unnecessary " I
211d at 507, citing Adam D. Goettl, et al, d/b/a International Metal Products Com-
pany, 104 NLRB 1076.
22 Supra.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have seen that the meetings between the Company and District 65 were held
subject to proof of majority so that, aside from the rights of the employees, it can-
not be held that such proof was waived and became unnecessary. Whatever might
be said about the good faith of the respective parties, whether the Company did or
was willing to negotiate with District 65 in good faith, and whether District 65 was
willing to permit a Board-conducted election as a test of employee preference (any
more than it was willing to test its own strength in the strike without the show of
force inherent in a mass of pickets which included individuals who were not em-
ployees of the Company) -whatever might be said of these aspects of good faith,
the evidence submitted does not show that District 65 in fact represented or was
designated by a majority of the employees in an appropriate unit. Thus, while the
Company could not be heard to insist on an election after its own violations had
presented conditions which prevented a fair election, District 65 has failed to prove
a majority of cards which under such conditions the Board will accept. With ma-
jority not shown, we do not reach the Joy Silk Mills rule that alleged doubt of ma-
jority, indicated not to have been in good faith, may not serve as defense to a re-
fusal to bargain after dissipation of the majority because of the employer's action.
D. The alleged violation of Section 8(a) (2)
This point having been reached in the Intermediate Report, neither the relation-
ship between the parties, their rights, nor the remedy requires recital of details to
the extent to which they have been noted in the preceding subsections. It appears
that Posner opposed both and all outside or independent unions; he "favored" 21906
only to the extent that he opposed it less than he did District 65. We need not
evaluate either Robinson's testimony that McNeil declared that Posner had in-
structed him to get cards signed for 21906 so that a standoff might result between
the competing unions; or the effect of McNeil's alleged statement as an admission
binding on the Company. At one time at least Posner suggested the formation of
a company union. But we do have readily recognizable evidence of unlawful as-
sistance to 21906.
The testimony concerning dates of various occurrences herein is quite uncertain,
and the dates herein noted have in some instances been set by comparison and
reconciliation. Several employees, including McNeil, McGee, Ybarra, Benson, and
Booker, went to 21906's office apparently about August 24.23 There they talked
with Greenwald, its president, and obtained authorization cards. However promptly
after the beginning of their lunch hour they left the Company's premises, the fact
that the meeting at 21906 lasted 1 to 11/z hours, or more, indicates that they missed
1 hour of work and probably more. I do not credit McGee's facile description of
the speed with which this mission was accomplished. The group was gone during
lunch hour and well beyond.
The testimony stands uncontradicted that the Company did not charge employees
for occasional lateness; but this is quite different from the failure to charge for
the late return from lunch and their absence from the job on this occasion. Nor
can we equate such payment for time spent by employees to meet with a union
representative even before organization and when that union does not represent
any employees, with payment for time spent in negotiations between the Company
and a representative of employees.24 Payment in the latter case, where the union
claims to and may represent a majority may redound to the Company's and the
employees' lawful interest in creating a favorable bargaining atmosphere; in the
situation as it involved 21906 and at that time, payment for the time lost could
only reflect the extent of the Company's interest 25 in supporting 21906 and bringing
it into the picture while it was yet outside.
There is a marked difference between permission to attend during working time
a union which does not yet represent any employees, and permission to attend a
bargaining session . But in any event, since the Company had knowledge of these
activities on behalf of 21906 and at least made them possible, it is not to be heard
to deny responsibility for the events which occurred immediately thereafter. In
fact, the Company not only made these activities possible, but it encouraged them
as indicated by Posner's remark to the effect that 21906 was the type of union
23 Robert Bell placed this on Thursday or Friday before August 25, and Ybarra said it
was 3 or 4 days before he signed his card for 21906; this would set it on August 21.
On the other hand, McGee's testimony concerning the sequence of events-the meeting,
his subsequent talk with Posner, then solicitation of cards for 21906-suggests August 24.
24 Cf B M. Reeves Company, Inc, 128 NLRB 320
25 Cf. Jamestown Machine and Manufacturing Company, 127 NLRB 172
I. POSNER, INC., ETC. 1593
needed, it being in the Company's line of work and the type of union which the
Company's competitors had. Such encouragement by exhortation and payment
constituted both interference with employees' free exercise of organizational rights
and unlawful assistance to 21906.
Robert Bell testified that Posner had come upstairs between 11:30 and 12 that
morning and had talked with McNeil and Ybarra; the latter two left the plant 2 or
3 minutes after Posner went down. We have no direct proof that Posner author-
ized or even discussed the proposed visit to 21906. While not all inferences urged
by counsel may be warranted, one may infer that Posner at least knew of 21906
and the contemplated visit there when he spoke with McNeil and Ybarra a few
minutes before they left the plant and went there. Here, unlike some other por-
tions of the record, a casual connection or relationship and a responsibility can
reasonably be inferred from the time sequence. That sequence and the fact that
no deduction was made from the pay of the members of the group suggests that the
Company knew of and authorized the visit. But that inference is unnecessary since
it is reasonable to infer that, aside from any advance authorization, the Company
subsequently approved and paid for the working time thus spent. As in the case
of Simpson's and Moore's activities in behalf of District 65, I find that Posner had
knowledge of these steps taken by the employees on behalf of 21906. The close
check which he maintained would have provided him with knowledge of the ab-
sences after lunch had he not known about them in advance, and McGee admittedly
told him the following morning where they had been.
McGee testified that he went to Posner's office about 8 a in. the next day and told
him that some of the men had visited 21906. Whether he mentioned any of the
terms which they had discussed with Greenwald the day before, he could not recall;
Posner did refuse to discuss terms without proof of majority. The conversation
ended when it was time for McGee to get to work, at 8.30.
I do not credit Posner's testimony that prior to that time he had no knowledge
of another union in the picture. According to Posner, not only was this his first
knowledge of another union, but he did not recall that McGee had named 21906:
Posner was not interested, and the name did not register! I reject as untrue several
items in Posner's testimony in this connection. He estimated that the conversation
with McGee lasted about 5 minutes; McGee said, and reasonably, that it continued
for about one-half hour. Saying that McGee may have named the other union (this
would be most likely after the men had already been there and especially if it had
not been named to Posner before they left), Posner explained that the name did
not register with him since he was not interested, the conversation " wasn't important
to (him) at the time"-this despite his action against Simpson and Moore, his trouble
with Doswell who insisted on holding meetings in the plant, the series of meetings
then being held between the Company and District 65-and aside from his own
general overriding interest.
This conversation with McGee occurred on August 21 or 24, or possibly even on
August 25. It evidently preceded the visit by Greenwald on the 25th or 26th. Posner
testified that Greenwald called on him at 8 a.m . on August 27, but I credit the latter's
testimony that this visit took place before, by telegram on August 26, he claimed
majority. In an earlier statement Posner had declared that Greenwald waved a lot
of cards (half of 21906's cards are dated before August 26, the remainder except one
on that date; this visit probably took place on August 26) and that he had himself
inspected a few of them; on the stand he testified that Greenwald did not have any
cards with him and did not show Posner any. (This latter denial concerning the
cards is of a piece with the alleged lack of interest in McGee's reference to 21906.)
Thereafter, and in contrast to its opposition to use of company premises by District
65, the Company permitted employees, especially McNeil, to solicit support for
21906 at least in part during working time; and supervisors or agents of the Com-
pany urged and assisted employees to join. Under the circumstances here, McGee
and McNeil were agents for whose activities in this connection the Company is
liable. We need not detail the testimony concerning McNeil's solicitation which
began during the morning break period but ran well over into working time in the
presence of Supervisor Grant. Aside from the Company's responsibility for Grant's
act in permitting this long discussion and solicitation for 21906, the very interest and
close supervision which Posner maintained would themselves make the Company
liable for this support of 21906.
The Company's preference for and assistance to 21906 are further evidenced by
the fact that those supervisors who signed union cards did so for 21906, not for
District 65. We can here note also the circumstances connected with Shenitzer's
card for 21906. McGee gave her the card during lunch hour. Quite apparently
unable to fill it out herself, she asked her supervisor, Plotzker, to do that for her;
he did. she signed it, and then she gave the card to Plotzker! It found its way to
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
21906 . Whatever the reason for Plotzker to fill the card out, none was offered for
Shenitzer to give it to him or for him to receive it. Although she could not write,
Shenitzer did not need a supervisor 's assistance to get the completed card to 21906.
That Posner was not indifferent as between District 65 and 21906 but supported
the latter appears both from his own acts and statements and from those of his
supervisors or agents which are attributable to him . According to Morales , about Au-
gust 25 when he learned that 21906 cards were being distributed , he asked McNeil
for one . Then while he was reading it, Posner came over and asked what he was
reading . Morales told him and Posner replied , "Yes, that is the best union for you."
When Morales asked why , Posner explained , "That 's the union that will keep me in
business." This conversation was confirmed by Robert Bell, so that we need not
rely on Morales' testimony . Whether such statements standing alone would be more
than allowable expressions of opinion we need not decide; 26 they do not stand
alone, and they are further indicative of Posner 's attitude and support the other
evidence of violative conduct. Butler also testified that Posner urged employees to
join 21906 . Thus we must recognize the entire congeries of assistance by Posner
personally and directly by supervisors, and by employees whose acts he authorized
or adopted. Whether or not Posner instigated the 21906 activity in his talks with em-
ployees who actively sponsored it in the plant, he permitted it and paid for the time
thus spent away from work. All of this adds up to sponsorship and promotion of
21906 by the Company, and unlawful assistance and support to it. Indicated prefer-
ence for and assistance to a labor organization may be manifested in different ways.
Whatever the way chosen , the Act is violated if unlawful support be accorded to a
labor organization or there is manifested a tendency to interfere with employees'
organizational activities beyond the mere lawful expression of the employer 's views.
The Supreme Court has declared that "slight suggestions as to the employer's
choice between unions may have telling effect among men who know the conse-
quences of incurring that employer 's strong displeasure "; and that "existnce of .. .
interference must be determined by careful scrutiny of all the factors, often subtle,
which restrain the employees ' choice and for which the employer may fairly be
said to be responsible ." 27 Keeping in mind the Company's right to express its
preference between competing unions where it does so without unlawful assistance
or other interference ,28 I find that the Company here did interfere with employees'
rights and unlawfully assisted 21906 in violation of the Act. Speeches , solicitation,
payment for time spent at 21906, these sufficiently constitute unlawful support and
assistance to that union ; and indicate the general atmosphere and the Company's
attitude and activities as violative.
I do not find that Posner unlawfully "promised and agreed that (he) would agree"
to certain terms with 21906 . As in discussions with District 65, agreement was
contingent on proof of majority. Nor had the talk concerning 21906 even reached
the formal or quasi-binding stage. We have no more than uncertain proof con-
cerning a possibility based on a condition precedent . This allegation of a promise
by Posner is to be distinguished from references , as by McNeil, to such promise when
he sought support for 21906 , supra.
With respect to the allegations (paragraph 15(e) and (g) of the complaint ) that the
Company in September urged and assisted employees to attend meetings at 21906,
this at most constitutes "more of the same ." As for the Company shutting down
early to permit attendance at 21906 meetings , the General Counsel was not prepared
to and did not meet the suggestion that employees who left the plant earlier than
usual had come to work before the usual hour . From the testimony of several wit-
nesses it appears that perhaps several times in September ( the General Counsel also
offered apparently reliable testimony that this occurred only once, about October 1)
many of those then working left the plant earlier than usual and went to 21906 meet-
ings. On behalf of the Company, with corroboration by several witnesses who were
called by the General Counsel but favored the Company on this point, it was testi-
fied that employees came to work at different and sometimes very early hours to
avoid the pickets ; and that they left correspondingly early after working for 8 hours.
Whether the days in question were early days for those who left for the meetings is
not clear; the facts were not definitely adduced . It is no more clear that employees
were on those days paid for time when they did not work . But one aspect in this
connection stands plain : as the employees emerged from the plant, Posner and his
supervisors or agents assigned them to automobiles and assisted in their trans-
21 Coast Aluminum Company , 120 NLRB 1326, 1327
r International Association of Machinists, Tool and Die Makers Lodge No 35 ( Serrick
Corp ) v. N.L.R B , 311 U.S. 72, 78, 80
21 N L R . B. v. Corning G lass Works , 204 F. 2d 422 (C A. 1).
I. POSNER, INC., ETC. 1595
portation to 21906. This activity constituted unlawful support and interference with
employees' rights to engage in or refrain from concerted activity.
It should suffice to say that the instances of unlawful support noted are among
other aspects of the Company's violative conduct in this connection. With respect to
supervisors ' participation in 21906 activities (we recall that Brown early attended a
meeting of District 65 on invitation), we can omit a finding here and deny ourselves
the privilege of analyzing the facts and explanations . While there is no shortage of
cases on the point ,29 the issue here is slight and we have too many other and more
important allegations.
There is no credible testimony to support the allegation that strikers were induced
to return to work by promises of benefit. We have considered supra the allegation
that returning strikers were financially rewarded. Strikers or former strikers may
not be penalized as by withholding of bonus payments 30 But we have no question
of penalty here. The complaint is that benefits were promised to induce strikers to
return and that some were financially rewarded. At this point we must distinguish
between benefit and promise of benefit. There is no evidence of a promise which
might have undermined District 65 and the strikers' collective activity. Even Doswell
testified only that he overheard McNeil urge strikers in an automobile and outside to
quit striking and attend a 21906 meeting; this has already been found. (Violation of
Section 8(a)(5) is alleged only with respect to financial rewards, not inducement to
return.) Can it then be maintained that the payment after the strikers returned to
work or the later increase to some employees itself tended to interfere with
union activities? Surely it would be farfetched to say that during some future strike
a striker might be impelled to return because of expectation of payment for time lost.
One might with equal logic, or lack of it, argue that the very expectation or hope of
payment for time not worked might encourage employees to go on strike and, having
gone out, to remain on strike for a short time at least in expectation of payment for
time not worked!
It would be similarly farfetched to hold that the payment made for the day of
work lost or the later increases constituted inducement to return, without evidence
of prior discussion or promise; or that they were intended to, did tend to, or in fact
dissipated the employees' interest in collective bargaining, interfered with their
rights in connection with such bargaining, or somehow assisted 21906. Here indeed
is much ado about nothing; but these are among the allegations. Perhaps it needs
to be pointed out that this is not a case of a wage increase discriminatorily paid to
nonstrikers , or of prior negotiation with a certified or actual majority representative.
Here was no more than an impulsive and noninterfering payment for time lost
through no fault of the employees thus paid, and a later increase to some employees.
If violative intent, tendency, or result was here present, it has not been shown.
E. The alleged independent violation of Section 8(a)(1)
Many hours were spent in testimony concerning discussion between employees
and Greenwald of 21906 of terms and conditions of employment which the former
hoped to get, and then concerning the extent to which those and other terms were
promised by Posner or by McNeil on his behalf. This appears to be related to
although not quite the same as the allegation of unlawful support for agreement
with 21906, supra.
We also have Morales' testimony that Posner proposed formation of a company
union and promised "the same benefits that District 65 would have given" the men.
Other employees who were allegedly present on that occasion and testified at the
hearing did not corroborate this testimony, and I do not credit it. According to
Robert Bell, Posner had approximately a month earlier, on July 27 or 28, suggested
to about 15 employees on the third floor that they form a company union (this has
been noted supra), and promised to pay for legal assistance in its formation. This
constitutes unlawful interference, as do Posner's similar proposals testified to by
Butler (and denied by Posner) and his repeated threats of closing down before
District 65 came into the plant. But we have already given more attention to so-
called independent violations, as distinguished from those which are derivative from
the violations already found, than did the General Counsel in his argument-
although it was undoubtedly difficult to select these items at the close of the hearing
from the mass of testimony. (No briefs have been received )
' Cf Anchorage Businessmen's Association , etc, 124 NLRB 662, Detroit Association
of Plumbing Contractors, 126 NLRB 1381 ; Geilich Tanning Company, 122 NLRB 1119,
1131 ; Nassau and Suffolk Contractors ' Association , Inc., and its members, 118 NLRB
174, 183.
oN.L.R .B. v. Wheeling Pipe Line, Inc., 229 F. 2d 391 ( C.A. 8).
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Economic or unfair labor practice strike
Although unfair labor practices have been found, we must not become notional
on the strike issue: no more than their wishes may the ideas of counsel substitute
for evidence. Nor may we make findings concerning a delayed or so-called total
,effect contrary to specific evidence received. What caused the strike is a question
of fact. The motivation might have been any of many things; we must consider the
evidence to consider what it actually was, and not speculate that possible causes were
in fact the moving and actual causes. The Board makes no casual finding of unfair
labor strikes, but points out and explains the causation which warrants such a
findiing.31
According to Doswell, at the meeting with the Company's attorneys on August 31,
when the latter stated that Posner would not agree to District 65's proposed contract,
both Robinson and Doswell recited in detail the Company's alleged support to
21906, and declared that the inability to reach an agreement and the Company's
activities in support of 21906 left no alternative but to strike Here is fundamental
pretense, literal quackery as even Doswell's superior, Robinson, to whom he attrib-
uted such statements, did not so testify.
Robinson first described three meetings in August between company and union
representatives at which a contract was discussed. A fourth meeting was held on
August 26 with a State mediator. This meeting continued at considerable length with
many terms of a contract being considered. The parties then tried to fix the date
for agreement on the proposed contract, and in that connection Robinson pointed
to a strike deadline which had been set by District 65 for August 28. The deadline
was then postponed to September 1 as the parties agreed to meet again on August 31.
When on the latter date the Company offered less than District 65 was willing to
accept, Robinson's reply was that there was no alternative but to strike. He had
earlier cited alleged unfair labor practices by the Company, as when men returned
to work had been put out on the sidewalk as watchmen; to this Drimmer replied
that, if the report were true, he would instruct the Company not to do such things.
There is no evidence that those matters were again discussed or considered by the
parties at any later meeting or by the employees in connection with their decision
to strike
Not only has it not been shown that the strike was prompted by unfair labor prac-
tices, but were the burden of proof on the Company, it would clearly appear that
the strike was dependent on failure to agree on a contract; and such failure did not
include any unfair labor practice. Nor does it appear from all of the testimony that
District 65 was ready to waive any unfair labor practice in return for a contract and
that it indicated this to the Company. When, at one meeting, Drimmer for the
Company referred to a meeting between the Company and the employees on District
65's negotiating committee, so far from claiming interference, undermining, or
other unfair labor practice which might prompt strike action, Robinson did not object
but, indicating a contrary basis for striking, said that the men were "disturbed"
because the Company had made no offer to District 65 and they wanted to strike.
According to Robinson, he threatened many times that there would be a strike if
no agreement were reached on a contract. His own testimony and the attendant
facts described indicate that support of 21906 was not in fact a reason for the
strike. On behalf of the Company, Drimmer testified that at several meetings Robin-
son threatened a strike if the Company refused a statement recognizing District 65 as
sole collective-bargaining agent and if it refused to meet.
Robert Bell testified that at a union meeting a week before August 25 the employ-
ees decided to strike because negotiations with the Company were dragging; and that
on August 31, after the negotiations for a contract fell through, Robinson said that
a strike would be called the following morning Butler testified similarly that a
week or two before August 26 a strike was called for because the Company was
"stalling" in the negotiations. He also cited complaints that Posner was yelling,
shouting, and treating the employees like dogs. The employees at that time decided
to permit the negotiations to continue for a week or two before they took action.
According to Butler, at the close of the meeting of August 31 Robinson told the
company representatives that he should perhaps have listened when the employees
had earlier demanded a strike; and that "since Mr. Posner has decided not to accept
the terms of the union, or to negotiate with the union, that there is nothing left for
(Robinson) to do but to carry out the will of the workers."
In the face of Doswell's contrary testimony, I rely on Robinson's and on that of
these two employees, active supporters of District 65 and prominent witnesses for the
3' Cf. J. H Rutter-Rex Manufacturing Company, Inc, 115 NLRB 388, 390
I. POSNER, INC.,. ETC. 1597
General Counsel, who were truthful in their innocence on this issue. I find that the
unfair labor practices found were not discussed or considered when the strike was
voted; specifically that company activity vis-a-vis 21906 was not, and could not have
been considered since the strike vote occurred a week before August 25! 32 The
strike was an economic one at its inception.
Considering the subsequent nature of the strike, it has not been shown by any
evidence to have been prolonged or converted into an unfair labor practice strike
because of any unfair labor practice by the Company although the complaint alleges
that several unfair labor practices on and after September 1 prolonged the strike.
In the later hearing on June 1, 1960, no evidence was submitted of unfair labor prac-
tices which prolonged the strike or thus converted it. The General Counsel's posi-
tion there was that the strike was prolonged "primarily" by the unlawful refusal
to bargain, which has not been found, and by continuance (without further proof
thereof) of the Section 8(a) (2) violations.
Without availing themselves of Board processes to determine whether a majority
favored District 65, the employees, or some of them, went on strike. We have no
suggestion of any willingness on the part of the strikers to abandon the economic
demands which prompted the strike. Nor does it appear that but for the interference,
the later unlawful assistance, and the earlier discrimination found, the strikers would
have desisted from their efforts at self-help. No connection has been shown between
continuance of the strike and the unfair labor practices found. The Board has said
that "an illegal refusal to bargain during a strike concerning economic differences
which caused the strike patently prevents a resolution of those differences and tends
to prolong the strike beyond the time when it might have been settled had there been
a continuance of good -faith bargaining ." 33 In the instant case we have no illegal
refusal to bargain, so that there can be no question of prolongation or conversation
because of any such refusal. While bargaining may lead to resolution of economic
differences which caused the strike, it does not follow that earlier discrimination and
unlawful support prevent such a resolution and therefore tend to prolong the strike
and convert it into an unfair labor practice strike. There is no evidence that the
unfair labor practices here found prolonged or converted the strike into an unfair
labor practice strike.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring in con-
nection with the operations 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.
N. THE REMEDY
Having found that the Company has engaged in and is, engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the Act.
We can here properly note the argument made in the later proceeding, but which
would apply here, by counsel for the Company that findings of violation are barred
by the Bryan Manufacturing decision.34 That case does not hold that the 6-month
statutory limitation applies to the remedy where a finding of violation is timely made.
Should the Board consolidate this and Case No. 2-CA-7270, any proposed remedy
here with respect to reinstatement would be superseded by that in the later case
But for the present a recommendation of remedy is in order. Since this was an
economic strike, reinstatement of the strikers will not be recommended 35 Another
remedy, based on later events and on the testimony there received, is recommended
in the Intermediate Report in the later case, issued simultaneously herewith38
e2,Cf. Wichita Television Corporation Incorporated , d/b/a KARD-TV, 122 NLRB 222,
225-226 , where the record "establislie[d] that the employees, at their pre- strike meeting,
were concerned about the discharge ; and placards carried by the pickets from the very
beginning of the strike show[ed] their concern with and their protest of the discharges "
Cf also N L R B v Wooster Division of Borg-Warner Corporation, 236 F 2d 898, 906-907
(CA. 6), modified on another point at 356 U S 342
-13J H Rutter-Rex Manufacturing Company, Inc, supra
34Local Lodge No 1424, International Association of Machinists, AFL-CIO; et al.
(Bryan Manufacturing Co ) v N L R B , 362 U S. 411.
35 Washington Coca- Cola Bottling Works, Inc, 117 NLRB 1163, 1167.
sa The Board may also consolidate these cases with Case No 2-CB-2669 brought against
District 65 ( such consolidation has not been requested by the General Counsel), especially
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that the Company, by discharging Simpson and Moore (both
thereafter reinstated) because of their union activities, discriminated against them in
respect to their hire and tenure of employment in violation of Section 8(a) (3) of the
Act. I shall therefore recommend that the Company make Simpson whole for any
loss of pay he may have suffered (Moore lost no pay) from July 24 through 28,
1959, by reason of the discrimination against him, computation to be made in the
customary manner . I shall further recommend that the Board order the Company to
preserve and make available to the Board upon request payroll and other records to
facilitate the checking of the amount of backpay due.37
It has been further found that the Company's activities in connection with 21906
constituted support of that labor organization in violation of Section 8(a) (2) of the
Act. I shall therefore further recommend that the Company withhoud all recognition
from 21906 as the exclusive representative of its employees for the purposes of
collective bargaining unless and until such labor organization has been duly certified
by the National Labor Relations Board as the exclusive representative of such
employees.
It has been further found that the Company, by threats and promises of benefit
dependent on limitation of employees' concerted activities, has interfered with, re-
strained, and coerced its employees in violation of Section 8(a)(1) of the Act. I
shall therefore recommend that the Company cease and desist therefrom.
For the reasons stated in the section entitled "The alleged violation of Section
8(a)(5)," I shall recommend that the complaint be dismissed insofar as it alleges
violation of that section.
Upon the basis of the above findings of fact, and upon the the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. District 65, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. Hair Goods, Toiletries and Accessories Workers Union, Local 21906, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of its em-
ployees, thereby discouraging membership in a labor organization, the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By contributing to the support of 21906, the Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act.
5. By such discrimination and support, and by threats and promises of benefit,
thereby interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Company has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Company has not engaged in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
[Recommendations omitted from publication.]
since the remedy in either or both of the cases against the Company may depend on the
evidence adduced in all of these cases.
87 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L.R.R.,
311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294.
Ken Lee, Inc. and International Ladies Garment Workers Union.
Cases Nos. 10-CA-4351, 10-CA-4408, and 10-CA-4420.. Octo-
ber 30, 1961
DECISION AND ORDER
On December 28, 1960, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
133 NLRB No. 148.