L. Tweel Importing Co.

National Labor Relations Board - Board Decisions

Jul 29, 1975

219 N.L.R.B. 666 (N.L.R.B. 1975)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emily Tweel Jacobs , Russell Jacobs, and Emil Tweel
d/b/a L. Tweel Importing Co. and Cap Makers
Union, Local 2, United Hatters, Cap and Millinery
Workers International Union, AFL-CIO. Cases 2-
CA-13230 and 2-RC-16404
July 29, 1975
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
On December 20, 1974, Administrative Law Judge
Paul E. Weil issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Administrative Law Judge's Decision. The
Administrative Law Judge further found that Re-
spondent had not engaged in certain other unfair la-
bor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Having
found that Respondent's conduct interfered with the
election in Case 2-RC-16404 and that a bargaining
order was warranted, the Administrative Law Judge
recommended that the election be set aside and the
petition dismissed and that all proceedings held in
connection therewith be vacated and set aside.'
Thereafter, Respondent and the General Counsel
filed exceptions and supporting briefs, and Respon-
dent filed an answer to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings,' and
i The Administrative Law Judge neglected to identify the objectionable
conduct which warranted setting aside the election We find it to be
Respondent's grant of Christmas bonuses to its employees on or about Jan-
uary 29, 1974, following the filing of the petition on January 10, 1974, and
before the election held on February 11, 1974 Contrary to our dissenting
colleague , we see no reason for overruling established Board doctrine as set
forth in Bernel Foam Products Co, Inc., 146 NLRB 1277 ( 1964), and Irving
Air Chute Company, Inc, Marathon Division , 149 NLRB 627 (1964).
2 In his Decision , the Administrative Law Judge inadvertently referred to
the charges in the instant case as having been filed on January 10, 1974. We
note , however , that the charges filed on that date were withdrawn and that
the charges which are the subject of the instant proceeding were filed on
February 19 and amended on March 7, 1974. We also note that the Admin-
istrative Law Judge incorrectly found that the employees formulated a list
of demands of November 21, 1973. The record reveals that Union Agent
Chanin and a group of employees formulated a list of demands between
November 27 and 29, 1973.
Respondent has excepted to certain credibility findings made by the Ad-
conclusions ,3 of the Administrative Law Judge and
to adopt his recommended Order, as modified here-
in.
The General Counsel excepts to the Administra-
tive Law Judge's dismissal of the portion of the com-
plaint which alleges unlawful surveillance of union
activities by Emil Tweel during January 1974. We
find merit in this exception.
The record reveals that Respondent leases the sev-
enth floor of a building in New York City where it
houses its business operations. From approximately
November 1973 until mid-February 1974, union rep-
resentatives daily met and spoke with Respondent's
employees in the lobby of the building as the em-
ployees left work at the end of their workday. Com-
mencing early in January 1974, Emil Tweel, a re-
spondent partner, stationed himself each day in the
lobby near the union agents who were attempting to
communicate with the employees as they passed
through at closing time. Occasionally, the union rep-
resentatives left the building and moved to neighbor-
ing streets in order to talk to the employees outside
of Tweel's sight. On these occasions, Tweel admitted-
ly followed the union representatives out into the
street and from corner to corner in order to observe
them and the employees.
The Administrative Law Judge found that this ac-
tivity by Respondent inhibited the employees and the
union agents in their organizing attempts, but he de-
clined to find unlawful surveillance, reasoning that
the Union chose to conduct its organizing campaign
in public and therefore cannot complain that it was
watched by Respondent. We disagree. Although the
lobby in the building where Respondent leases space
for its operations is a public place and arguably prox-
imate to Respondent's business premises, Tweel's
ministrative Law Judge . It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd . 188 F.2d 362 (C A. 3, 1951) We have carefully examined the
record and find no basis for reversing his findings.
I We agree with the Administrative Law Judge 's conclusion that, having
recognized the Union and entered into bargaining on December 13, 1973,
Respondent had a continuing duty to bargain with the Union for a reason-
able time Toltec Metals, Inc, 201 NLRB 952, 954 ( 1973). See also N.L.R B.
v Broad Street Hospital and Medical Center, 452 F.2d 302, 303 (C.A. 3,
1971) Thus, Respondent's failure or refusal to bargain on and after Decem-
ber 14, 1973, violated Sec. 8(a)(5) of the Act and, accordingly, a bargaining
order is the appropriate remedy. In the circumstances, we need not pass on
whether a bargaining order would also be warranted to remedy the indepen-
dent violations of Sec. 8(a)(l) which we find Respondent committed herein.
See Steel-Fab, Inc., 212 NLRB 363 (1974)
We also agree with the dismissal of the 8 (a)(1) allegations pertaining to
Respondent 's claim that "if the Union demands were met" Respondent
would have to go out of business because it could not pay the wages and
benefits demanded and still make a profit. In our judgment, this claim is not
an unlawful threat , but is a mere opinion, based on demonstrable facts, as to
the economic consequences which might reasonably be expected to result
from full implementation of the Union's excessive demands . Accordingly, it
was protected by Sec 8(c) of the Act. Birdsall Construction Company, 198
NLRB 163 (1972).
219 NLRB No. 130
TWEEL IMPORTING CO. 667
presence there at closing time was not an ordinary
occurrence .4 Furthermore, Respondent concedes that
Tweel followed the union agents into the street and
away from Respondent's premises in an effort to ob-
serve them and the employees. Thus, Respondent
went out of its way to observe the union activities of
its employees, with the resulting inhibitory effect on
their organizing attempts. This surveillance cannot
be excused on the ground that it occurred in public.
We therefore find that Respondent violated Section
8(a)(1) of the Act by unlawful surveillance, and we
shall modify the recommended Order accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Emily
Tweel Jacobs, Russell Jacobs, and Emil Tweel d/b/a
L. Tweel Importing Co., New York, New York, their
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as modi-
fied below.
1. Insert the following as paragraph 1(g) and relet-
ter the present subparagraph (g) as (h):
"(g) Keeping union activities of our employees un-
der surveillance."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
MEMBER JENKINS , dissenting in part:
Respondent campaigned for employee support in
the forthcoming Board election by telling them
among other things, that the exaggerated demands of
the Union would force Respondent to close the plant
for economic reasons. My colleagues conclude that
the remarks in question fall into the category of a
lawful prediction. I disagree.
In drawing the distinction between a permissible
prediction and an unlawful threat, the test to be ap-
plied is the one fashioned by the U.S. Supreme Court
in Gissel.5 As the Court there stated, an employer's
prediction of dire economic effects which will stem
from union organization of the employees must not
contain "any implication that an employer may or
may not take action solely on his own initiative for
reasons unrelated to economic necessities," and, if
any such prediction is made, it must be supported
"on the basis of objective fact to convey an
employer's belief as to demonstrably probable conse-
quences beyond his control." 6
4 Cf. G. C. Murphy Company, 216 NLRB No. 113 (1975).
5 N L R B. v. Gisset Packing Co., Inc., 395 U.S. 595 ( 1969).
Here, there are simply no objective facts to sup-
port Respondent's statement. Respondent claims
that during its brief and subsequently aborted bar-
gaining negotiations with the Union, it was presented
with demands which, if agreed to, would have forced
Respondent to go out of business. However, the re-
cord makes clear that the demands to which Respon-
dent refers were a part of the Union's initial bargain-
ing proposal and that Respondent was advised that
such demands were negotiable. Thus, aside from the
fact that there is objective proof that the Union's de-
mands were truly unreasonable, it was quite evident
to Respondent that the Union was merely attempting
to establish a favorable posture from which to com-
mence bargaining and that in no sense did these de-
mands constitute a firm and final bargaining posi-
tion. In such circumstances, I am constrained to
conclude that Respondent's plant-closing remarks
were a blatant threat to punish employees with eco-
nomic reprisals if they selected the Union as their
representative in the Board election. Such conduct is
clearly violative of Section 8(a)(1) of the Act and I
would so find.
Also, unlike my colleagues, I consider the result of
the Board-conducted election to be a totally irrele-
vant consideration in determining whether issuance
of a bargaining order is appropriate action under the
circumstances of this case. My colleagues have
found, and I agree, that Respondent voluntarily rec-
ognized the Union as the bargaining representative
of its employees on December 13, 1973, and that,
after a brief period of negotiations, Respondent un-
lawfully withdrew recognition of the Union. Obvi-
ously what we have before us then is a legally estab-
lished bargaining relationship and not merely a
union's claim to recognition. Yet, my colleagues
draw no distinction between the two situations. Ap-
plying the principles of Bernel Foam I and Irving Air
Chute,8 my colleagues find, in effect, that the Union
has elected to, establish its representation claim
through the means of a Board election and having
failed 9 is not entitled to a bargaining order unless it
can be shown that the election was invalid. Thus,
under their reasoning, if meritorious objections were
not filed based upon conduct occurring during the
critical period preceding the election, the Union here
would not be entitled to the benefit of a bargaining
order.
To me this lacks a basis in reason or logic. By the
voluntary grant of lawful recognition to the Union,
Respondent has eliminated the need for any further
6Id. at 618.
t Bernet Foam Products Co, Inc., 146 NLRB 1277.
Irving Air Chute Co., Inc, Marathon Division, 149 NLRB 627.
v The election on February 11, 1974, shows that 20 votes were cast for the
Union and 22 against, and there were 2 challenged ballots.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquiry as to the Union's representation claim. In
other words, the claim is no longer a mere claim; it is
a contractually established right which gives rise to
an immediate bargaining obligation.10 With the bar-
gaining relations thus established, Respondent's un-
lawful withdrawal of recognition requires the remedi-
al relief of a bargaining order, irrespective of any
other considerations.
In all other respects, I join in the determinations
reached by my colleagues.
10 Fred Snow, Harold Snow and Tom Snow, d/bla Snow & Sons, 134
NLRB 709 (1961 ); Sullivan Electric Company, 199 NLRB 809 (1972)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the National Labor
Relations Act, we hereby notify you that:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL bargain collectively with Cap Mak-
ers Union, Local 2, United Hatters , Cap and
Millinery Workers, Inernational Union, AFL-
CIO, respecting rates of pay, wages, hours, or
other terms and conditions of employment, as
the representative of our employees in the fol-
lowing bargaining unit:
All production and maintenance and shipping
and receiving employees, exclusive of office
clerical employees, sales employees and all su-
pervisors as defined in the National Labor
Relations Act.
WE WILL NOT coercively question employees
about their or other employees' union activities.
WE WILL NOT give bonuses or wage increases
for the purpose of interfering with the protected
rights of our employees or to undermine the
above-named Union, or any other labor organi-
zation.
WE WILL NOT prepare or sponsor antiunion pe-
titions or solicit our employees to sign such peti-
tions, rescinding their collective-bargaining au-
thorizations to the Union.
WE WILL NOT make promises of benefits to our
employees conditioned upon their rejection of
the Union nor will we grant benefits to our em-
ployees to induce them to refrain from giving
assistance or support to the above-named
Union.
WE WILL NOT keep union activities of our em-
ployees under surveillance.
WE WILL NOT refuse to bargain with the Union
by bargaining directly with our employees in the
unit described above or by unilaterally institut-
ing wage raises or other benefits without consul-
tation with the Union.
EMILY TWEEL JACOBS, RUSSELL JACOBS, AND
EMIL TWEEL d/b/a L. TWEEL IMPORTING CO.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On January
10, 1974, Cap Makers Union, Local 2, United Hatters Cap
and Millinery Workers International Union, AFL-CIO,
hereinafter called the Union, filed with the Regional Direc-
tor for Region 2 of the National Labor Relations Board a
petition seeking an election among the production and
maintenance employees and shipping and receiving em-
ployees of L. Tweel Importing Co., hereinafter called Re-
spondent , excluding all office clerical employees , sales em-
ployees, officers, guards, watchmen, and supervisors as
defined in the Act. On January 21, 1974, the parties en-
tered into a consent election agreement providing that an
election be held on February 11, 1974. The election was
duly conducted on February 11.1 Twenty votes were cast
for the Petitioner and twenty-two against the Petitioner,
with two challenged ballots. On February 15 the Union
filed objections to conduct which allegedly materially af-
fected the outcome of the election and at the same time
filed a charge alleging that Respondent violated Section
8(a)(l) and (5) of the Act by various acts and conduct,
including threats to close the shop, promises of wage in-
creases if the Union were defeated, and other acts and con-
duct by the Employer. On March 7, 1974, the Union
amended its charge alleging , in addition , discrimination
against various employees by discharge or layoff because
of their membership and activities on behalf of the Union,
as well as alleging a violation of Section 8(a)(5) in that
Respondent refused to bargain with the Union while it en-
gaged in conduct which undermined the status of the
Union as the employees' bargaining agent. On May 16,
1974, the Regional Director for Region 2, on behalf of the
1 All dates hereinafter are in the year 1974 unless otherwise noted.
TWEEL IMPORTING CO.
General Counsel of the National Labor Relations Board,
hereinafter called the Board , issued a complaint alleging a
violation of Section 8(a)(1) and (5) by Respondent and on
May 17, 1974, issued an order consolidating the complaint
and the objections in the representation case for hearing,
together with a notice of hearing. Respondent duly filed its
answer on June 4, 1974, together with a motion for a bill of
particulars which was granted in part and complied with.
On the issues thus joined, the matter came on for hearing
before me on July 24, 25, 29, 30 and October 7 and 8, 1974.
All parties were present and represented by counsel and
had an opportunity to call and examine witnesses, to ad-
duce relevant and material evidence, and to make oral ar-
gument and file briefs. At the close of the hearing the Gen-
eral Counsel made oral argument. Thereafter a brief was
received from Respondent and memoranda in letter form
were filed by the General Counsel and the Union. On the
entire record in this case 2 and in consideration of the
briefs and arguments filed by the parties , I make the fol-
lowing:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent admittedly is a copartnership doing busi-
ness in the city of New York, manufacturing , selling, and
distributing pot holders and related products. Respondent
annually manufactures and distributes its products valued
in excess of $50 ,000 in interstate commerce directly to
States of the United States other than the State of New
York. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of theAct.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
In late October 1973, the Union commenced an organiz-
ing campaign at Respondent's plant. Respondent occupies
an upper story in a large building in Manhattan where it
employs approximately 60 persons , most of them Spanish
speaking and many with no knowledge of English. Respon-
dent became aware of the organizing campaign in early
November , largely as a result of seeing Union Organizer
Cintron in the lobby of the building in which Respondent's
plant is located and from information derived from the
employees through one of the older employees, Violet Del-
gado , who is bilingual.
On November 16, Jose Matos , another employee, was
discharged. Matos went down to the lobby and complained
to Cintron about his discharge and Cintron accompanied
him back to the plant and confronted Russell Jacobs. Cin-
2 Respondent 's unopposed motion to correct the transcript is hereby
granted.
669
tron told Jacobs that Matos was a union member and that
Jacobs could not discharge him. Jacobs said that he was
only one of the partners and that Cintron would have to
talk to Mrs. Jacobs, Russell's mother, who managed the
enterprise. Cintron left saying that he would be back with
his business manager the following Monday.
On November 19, Cintron returned accompanied by
Business Manager Chanin as well as Matos. They met with
all three partners and informed them that Respondent
would have to take Matos back as an employee and also
that they would have to bargain with the Union. Although
both Mrs. Jacobs and Russell Jacobs denied that at any-
time during this meeting Chanin stated that he represented
a majority of the employees, there is no question that on
this occasion Chanin demanded recognition and told them
that he would get back to them with the written demand.
At this time, according to the testimony of Chanin, he
had cards numbering in the "upper 30s" from
Respondent's employees.
On November 21, the employees met at a Spanish res-
taurant near Respondent's place of business and formulat-
ed a list of demands that Chanin proposed to offer the
Company.
According to Chanin's testimony another meeting was
held on November 27 at which he urged Mrs. Jacobs to get
counsel , discussed generally wages, hours, and other bene-
fits, and begged her to help him keep the employees satis-
fied, stating that Russell Jacobs was saying things to the
people. Both Russell Jacobs and Mrs. Jacobs testified that
they have no recollection of such a meeting. I find it un-
necessary to decide whether this meeting was held.
On November 30, Chanin again met with the partners.
On this occasion he gave them a list of demands including
pay schedules and went over it with them very briefly. Mrs.
Jacobs remarked that it seemed too expensive and that she
could not meet these demands, but that she would give it to
her accountant to study over the weekend and meet with
Chanin again.
On December 13, according to the testimony of the Ja-
cobses, the parties met again. Mrs. Jacobs stated that she
rejected the demands, that they were outrageous and that
she could not go along with them. Chanin told her that
they were all negotiable with the possible exception of the
demand for one of the fringe benefits, and they com-
menced talking about the specific demands. They dis-
cussed vacations and Mrs. Jacobs agreed to 2 hours on
each of the two holidays. They had some discussion about
the term of the contract. According to Chanin, Mrs. Jacobs
agreed to a 2-year contract, and according to Mrs. Jacobs
she agreed to nothing. After about an hour's discussion the
meeting broke up and the parties agreed to meet again on
December 18 for further negotiations.
On December 14, a number of employees were laid off,
including Matos. On this occasion Matos apparently went
beserk and commenced smashing the machinery and at-
tempting to strike Russell Jacobs. Mrs. Jacobs sent some-
body downstairs to get Cintron who was as usual in the
building lobby, while the employees attempted to cope
with Matos. Matos was calmed down by the time Cintron
arrived and Cintron led him from the plant. As a result of
the disturbance Mrs. Jacobs became ill. Her doctor advised
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her to stay away from the plant for a period of time, and
she did so until January 2 . In her absence the meeting
which had been set for December 18 was called off.
After Mrs. Jacobs returned to the plant in January, the
Union called and asked for another meeting . Chanin spoke
to Russell who temporized and said that Mrs . Jacobs was
out and would call later, but she did not do so. On that day
Mrs. Jacobs was having meetings with all the employees in
groups of five or six, addressing them through Violet Del-
gado as an interpreter . At each meeting she asked the em-
ployees who had signed union cards to sign a petition to
the Union which she had prepared and presented to them
asking for their cards back. The record contains four sheets
of the petition signed by 34 employees. These petitions
were sent to the Union.
On January 10, the Union went to the Board office at
which it filed the instant charges and also filed a petition
for an election among the employees. This petition was
duly served on Respondent. In mid-January Mrs. Jacobs
told Russell Jacobs to inform the employees that the raise
which they desired would be forthcoming after the elec-
tion.
On January 21, the parties met at the Board offices and
signed a consent election agreement setting up an election
for February 11.
On January 29, all the employees were given bonuses.
The General Counsel contends that these bonuses were
given in order to encourage the employees to vote against
the Union and points out that the bonuses were greater in
amount than the bonuses given the preceding year at
Christmas time. No Christmas bonuses had been given.
According to the testimony of Mrs. Jacobs, Christmas bo-
nuses were not given because she was not there to discuss
the amounts of the bonuses with Russell Jacobs and with
Mr. Emil Tweel, the third partner.
On February 7 a bulletin was prepared by Mrs. Jacobs,
translated into Spanish , and distributed in the plant among
the employees. On the following day the employees again
were called together in groups and Mrs . Jacobs addressed
them again through Violet Delgado . The election was con-
ducted on February 11, 20 employees voted for the Union
and 22 against the Union. Timely objections were filed
after the election.
On February 21 the employees were given a wage in-
crease retroactive to January 1. The evidence reveals that
this is the first time in recent years that the employees were
given a retroactive raise, although they had been getting
raises regularly during the last few years.
The General Counsel contends that by withholding the
wage increases until after the election but promising it be-
fore the election and by giving the bonuses on January 29
Repondent interfered with, restrained, and coerced the em-
ployees in the exercise of their protected rights. Also, by
sponsoring the petition to reject the Union and by a threat
of removal of the plant contained in the speeches given on
February 8, as well as by acts of interrogation , Respondent
rendered the holding of a valid election impossible, and
should be required to bargain under the Steel Fab rule. In
the alternative the General Counsel contends that Respon-
dent in effect has recognized the Union and bargained with
it, and now violates Section 8(a)(5) by its failure to contin-
ue union recognition . In either event the General Counsel
proposes to show that the Union represented a majority of
the employees at the time of recognition and to this end
adduced evidence of the Union's representative status. We
will consider this issue first.
The Union's Representative Status
The General Counsel and Respondent agree that the
unit consists of 58 persons shown to have been in the bar-
gaining unit on November 19, 1973. As I have set forth
above, Cintron and Chanin first met with the partners on
that date regarding taking Matos back after his first dis-
charge and requested bargaining . Thereafter meetings were
held on November 30 and December 13 at which the bar-
gaining demand was pursued , and indeed bargaining en-
sued . There is no evidence that there was any change in the
bargaining unit after November 19 other than the layoff on
December 14, 1973, since which time there have been no
negotiating sessions . For the purposes of this inquiry, how-
ever, it is my opinion that the showing that the Union rep-
resented a majority of the employees at any time prior to
December 14 satisfies any requirement either under the
Steel Fab rule or under the Keller Plastics Eastern rule 3
that the Employer having given recognition , under the cir-
cumstances that the Union represented a majority, is re-
quired to bargain for a reasonable time even though the
Union loses its majority thereafter.
The General Counsel introduced 35 union authorization
cards allegedly signed by employees of Respondent, 34 of
them were received in evidence , and the remaining card,
that of Jose Matos was not received because Matos was
not proved to have signed it. Nevertheless the General
Counsel contends that Matos should be counted on the
basis of other evidence in the record showing his union
adherence. The record reveals that Matos, whose discharge
on November 16 first brought about a confrontation be-
tween the Union and Respondent, was a leading partici-
pant in the Union's organizing drive. He was one of the
original members of the Union's organizing committee and
was so nominated at the meeting at the Spanish restaurant
on November 21. On two occasions, November 16 and 19,
1973. Matos accompanied the union officers to Re-
spondent's place of business and on each of those occa-
sions union agents , first Cintron and then Chanin, in-
formed Respondent that Matos had joined the Union.
The issue before me is not whether certain cards were
signed by certain employees, but rather whether a majority
of the employees authorized the Union to represent them
for purposes of collective bargaining. No clearer evidence
of the authorization from Matos to the Union can be
found than that at his request and in his presence they
successfully represented him on November 19 to Respon-
dent . While as a technical matter Matos ' card was not re-
ceivable in evidence , in my opinion Matos is clearly shown
to have authorized the Union to act on his behalf and I
shall count him with the other employees who have author-
ized the Union.
3 157 NLRB 583 (1966).
TWEEL IMPORTING CO.
Respondent raises no objection to counting the cards of
18 of the employees and agrees with the General Counsel
that 12 more are needed to show the Union's majority in-
terest. The Respondent contends that the cards of Mer-
cedes Lopez, Carmen Davila, Antioquia Vargas, Ana Mar-
tinez, Amy Ragnouth, Avilda Cuesta, and Nilda Gonzalez
should not be counted because these employees were not
called as witnesses and the cards were accepted on the tes-
timony of other employees who saw them signed. Respon-
dent argues that there is no showing that these seven em-
ployees were unavailable to testify and that secondary
evidence should not be permitted in the absence of such a
showing. The Board has long held that secondary evidence
of this nature is adequate . Perhaps the leading cases where
the Board found adequate authentication by testimony of
persons who witness the signing or who received the signed
cards from the signatories are Don the Beachcomber, 163
NLRB 275 (1967); Amalgamated Clothing Workers of
America, AFL-CIO [McEwen Manufacturing Company] v.
N.L.R.B., 419 F.2d 1207 (C.A.D.C. 1969), cert. de-
nied 397 U.S. 988 (1970); and Martin Electronics 183
NLRB 66 (1970). Indeed in Martin Electronics the Board
specifically found that authentication by the card signer
was not required. I reject the argument of Respondent and
I shall count these seven cards.
Respondent objects to the card of Edith Godoy on the
ground that it had not been signed on November 19. Mrs.
Godoy testified that she signed the card about a week after
her husband filled it out for her on November 16. She
testified that she signed it after the meeting in the Spanish
restaurant on November 21 and about a month before
Christmas ; this places the signing very closely as Novem-
ber 22, 23, or 24, after the initial demand for recognition,
and before the negotiations which took place on November
30 and December 13, 1973. As I stated above I believe that
a showing of majority at any time prior to December 13 is
adequate; I shall count Mrs. Godoy's card.
The Respondent also contends that the card of Ema
Mendoz should not be counted because there is no evi-
dence as to when she signed it. Mrs . Mendoz testified that
she signed the card at her machine in a hurry and gave it to
Eddie Pimentel who filled out the rest of the information
on the card. The card bears the date of November 19,
1973; however Mrs. Mendoz testified that she signed the
card after the meeting at the Spanish restaurant which took
place on November 21. Accordingly it is clear that the date
on the card is not correct. Mrs. Mendoz was unable to say
how long after the meeting at the Spanish restaurant she
signed the card . Eddie Pimentel was called as a witness and
had no recollection of the occurrence. Accordingly there is
no evidence concerning the date of the signing of the card
except that it was after November 21. Under the circum-
stances I cannot assume that the card was signed before
December 14 after which date there have been neither de-
mands nor bargaining by Respondent; I shall not include
the card of Mrs. Mendoz.
The cards of Milagros Ramirez, Isabel Hierro, Altagra-
cia Sanchez, and Haydee Caraballo were all received after
authentication by Antonio Diaz who testified that he
talked to the employees about signing cards and distribut-
ed cards to some of them . He also testified that all of these
671
employees signed their cards before the meeting at the
Spanish restaurant.
Respondent argues that inasmuch as Diaz' testimony re-
garding another employee's, Elena Burgos, card signing
was contradicted by the testimony of Mrs. Burgos, that
Diaz credibility was shown to be totally unreliable, and
accordingly there was insufficient evidence on which to
base a finding that the other employees concerning whom
he testified had in fact signed their cards. Respondent
points out that as in the case of the other employees dis-
cussed above there is no showing that the card signers
themselves were not available to testify and accordingly
the cards should be rejected. The Respondent's argument
cuts both ways. If it had any doubt that Ramirez, Hierro,
Sanchez, and Caraballo signed the card, these four persons
are Respondent's employees and Respondent could proba-
bly more easily than the General Counsel have produced
them to testify with regard thereto. On the whole I found
Diaz' testimony credible and I see no occasion to discredit
him regarding these four instances which Respondent did
not attempt to controvert. Accordingly, I shall accept the
evidence that these four employees designated the Union
as their collective-bargaining representative.
I have found that the General Counsel has proven that
31 of the employees, a clear majority, selected the Union as
their collective-bargaining representative. Inasmuch as Re-
spondent agrees with the General Counsel that 30 repre-
sents a majority, I find it unnecessary to determine the
remaining cards and in the interests of brevity I will not do
so. I find that at or prior to the time of the meeting in the
Spanish restaurant on November 21 the Union represented
at least 30 of the employees and that within a few days
thereafter represented at least 31.
The Unit
The General Counsel alleged that an appropriate unit
consists of all production and maintenance and shipping
and receiving employees of Respondent, exclusive of office
clerical employees, sales employees, and supervisors as de-
fined in the Act, and Respondent admits this allegation.
Accordingly no issue remains to be decided with the possi-
ble exception of the unit placement of Violet Delgado as to
whom there was some indication of supervisory status; I
find that Miss Delgado is a rank-and-file employee, al-
though as Respondent's interpreter Miss Delgado occupied
a special position and to the extent that she acted as an
interpreter, she had the authority to bind Respondent with
the statements she made on Respondent's behalf.
I find that the Union after November 21, 1973, repre-
sented a majority of the employees in the unit appropriate
for collective-bargaining, and accordingly has been, and is,
the exclusive representative of all employees in said unit
for the purposes of collective-bargaining.
Demand
The General Counsel contends that on November 19,
1973, the Union through its business manager , Herschell
Chanin, demanded recognition and bargaining on behalf
of the employees in the unit found appropriate above. Re-
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent denies that any demand for recognition was
voiced by Mr. Chanin. Chanin testified that when he met
with the three partners on the subject of the discharge of
Jose Matos, he informed them that he represented a major-
ity of the employees and demanded that they negotiate
with him. He is supported in this testimony by the testimo-
ny of Business Agent Cintron who was present. Mrs. Ja-
cobs and Russell Jacobs testified that at no time did Cha-
nin or Cintron state that they represented a majority nor
demand recognition. Having in mind that the confronta-
tion of November 19 was occasioned by the discharge of
Matos and the Union's demand that he be rehired, it is not
improbable that the parties do not have a clear verbal rec-
ollection of exactly what was said during the meeting.
However the record reveals as a result of the meeting fur-
ther meetings were arranged, demands were formulated,
presented, and discussed, and Respondent made a prelimi-
nary survey of the cost of the Union's demands which led
to its rejection of them. This is the very essence of collec-
tive-bargaining. The give and take over the Union's de-
mands resulted in Respondent's agreement to certain bene-
fits for the employees before the cessation of meetings
resulting from Mrs. Jacobs' illness. There are no magic
words required to be spoken to constitute a demand for
bargaining, whatever words were spoken in the instant case
were obviously sufficient to bring about the commence-
ment of negotiations. I find that a demand was duly made
and received by Respondent and that recognition and col-
lective bargaining ensued therefrom.
The Refusal To Bargain
At the close of the negotiating session on December 13
the parties agreed to meet again on December 18. How-
ever, on December 14 Respondent laid off a group of em-
ployees including Jose Matos, who became violent and
abusive and had to be led from Respondent's plant by
Business Agent Cintron . The violence so upset Mrs. Jacobs
that she was advised by her doctor to stay away from the
plant for a period of time and she did so until January 2.
The December 18 meeting was called off until she returned
to work. Upon her return, Respondent made no move to
contact the Union. According to Mrs. Jacobs' testimony
she became aware that the employees were disenchanted
with the Union and that a majority no longer wanted to be
represented by them. Upon cross-examination it became
clear that the only evidence of such disenchantment that
came to Mrs. Jacobs' attention were statements made to
her by Violet Delgado who, as her testimony showed, was
herself opposed to the union organization . Obviously view-
ing this circumstance as an opportunity to rid itself of what
it considered to be burdensome demands by the Union,
Respondent engaged in a series of meetings with the em-
ployees from which it ascertained that the main goals of
the employees in the union organization were to achieve
wage increases and certain fringe benefits . During the
course of this series of meetings with the employees the
union agent called in an attempt to set up another meeting
for negotiations but was told that Mrs. Jacobs was with a
customer and would call back. She never called back. At
these meetings after ascertaining what the employees want-
ed and assuring them that Respondent could give them the
benefits without their having to join the Union, Mrs. Ja-
cobs tendered to the employees petitions already made out
by Respondent addressed to the Union and stating (in
English) "we the undersigned herewith revoke our past au-
thorization to be unionized. We do not want to belong to
the Union." Although apparently Miss Delgado on behalf
of Mrs. Jacobs told the employees that they did not have to
sign the petition , she also told them that by signing the
petition Mrs. Jacobs would know that they were for the
Company, and if they did not sign it she would know that
they were for the Union. Under the circumstances quite
obviously the employees felt that they had very little to
gain by refusing to sign the petition and 34 employees
signed it, including Antonio Diaz , Consuelo Hernandez,
Rufino Ortiz, and Eddit Pimentel, all of whom were on the
Union's organizing committee.
During the course of one of these meeting Mrs. Jacobs
asked the employees present, who included Antonio Diaz
and Rufino Ortiz, if they wanted a union why did not they
tell her. Diaz answered that they should not have to tell her
about a raise because they should be paid for what they
were doing, and that in a union they would be paid for the
2 days following Christmas and New Year's when they
were laid off without pay. Mrs. Jacobs asked what he want-
ed and he said he wanted to be paid for those 2 days. She
suggested he go to the unemployment office and claim it
and he probably would get paid for those 2 days, but Diaz
answered that he did not work for the unemployment of-
fice, he worked for Tweel. Mrs. Jacobs ended up promising
to pay him for the 2 days as well as Ortiz. She also told
Diaz that he was going to get $20 for a bonus and Diaz
said "no, give me $25." She agreed and did so ; she also
gave a $25 bonus and 2 days' pay to Ortiz.
When Business Manager Chanin learned of Re-
spondent's activities among the employees he went to
the Board office where he filed the instant charges alleging
refusal to bargain , and after some discussion with Board
agents filed a petition for an election . Other than mailing
the petitions which Mrs. Jacobs had caused the employees
to sign , Respondent has not communicated with the Union
since, nor has the Union made further attempts to bargain
with Respondent. I conclude and find that Respondent,
having commenced a bargaining relationship with the
Union, concluded that it could avoid a contractual rela-
tionship with the Union and satisfy its employees so as to
dilute the Union's representative status by individually
bargaining with the employees as in the case of Ortiz and
Diaz and by promising and paying them bonuses and wage
increases as in the case of all of the employees. I find that
under the circumstances Respondent's withdrawal of rec-
ognition from the Union and its individual bargaining with
the employees constitute a refusal to bargain with the
Union, with whom it had the duty to bargain, and accord-
ingly a violation of Section 8(a)(5) of the Act.
The Bonus and the Wage Increase
The record reveals that Respondent has normally paid a
bonus to its employees at Christmas time. In 1973 however,
the usual Christmas bonus was not paid; Mrs. Jacobs testi-
TWEEL IMPORTING CO.
fied that it was not paid because of her absence from the
plant because of her illness. After she returned and held
the meetings with the employees, she found that the failure
of Respondent to pay the employees a bonus was a source
of considerable anxiety and unrest among the employees.
In the employee meetings and apparently not before them,
she informed the employees that they would receive a
Christmas bonus, but it was not until January 29 that it
was paid.4
With regard to the wage increases on February 21, after
the election , wage increases were given retroactive to Janu-
ary 1, 1974 5 Mrs. Jacobs testified that the idea of giving a
wage increase was formulated some time in December or
January and that ordinarily the Company tried to give
wage increases effective January 1; however she admitted
that the last general wage increase was on April 2, 1973,
prior to that September 1972, January 1, 1971, February
1970, and September 1967. Mrs. Jacobs also testified that
Respondent decided to hold off with the raise "because of
the upset with the Union" and accordingly did not give the
raise until after the election. The General Counsel con-
tends that by granting the bonus immediately before the
election and by promising the raise to the employees, but
holding off granting it and then granting it after the elec-
tion retroactive to January 1, Respondent interfered with,
coerced, and restrained employees in the exercise of their
statutory rights to induce them to refrain from becoming
and remaining members of the Union and to refrain from
giving assistance and support to it, and to abandon their
membership in and activity on its behalf , all to undermine
the Union and destroy its majority status in violation of
Section 8(a)(1) and (5) of the Act.
Respondent on the other hand contends that if the Gen-
eral Counsel 's theories concerning the illegality of the wage
increase and bonus were held valid , it would become im-
possible to know when the law was being violated , assum-
ing that if the payment of the bonus had been deferred
until after the election Respondent would have been
charged with a violation , and if a wage increase had been
granted prior to the election , that too would have been a
violation . This view of the law is an oversimplification. Al-
though it is quite possible that Respondent 's presumption
is correct , as the General Counsel pointed out in his oral
argument , the question is whether Respondent used the
bonus and the wage increase unlawfully to sway the adher-
ence of its employees to the Union . Clearly, unless and
until Respondent commences valid bargaining with the
Union the granting or withholding of bonuses and wage
increases is subject only to its own discretion. In this in-
stance Respondent clearly demonstrated to the employees
that their union activities had a substantial impact on
Respondent's willingness to increase their emolument, thus
4 The General Counsel made a small point that the amount of the bonus-
es was increased . The record reveals that in the year 1970 the bonus
amounted to an average of $25 .56, in 1971 to an average of $24 .82, in 1972
to $28 .60, and in 1973 to $30 .50. 1 do not deem the increases in the amount
of the bonus to be of such a substantial nature that it bears the inference
that the bonus was increased in order to interfere with , coerce , or restrain
the employees except those specific instances recited above with regard to
Diaz and Ortiz.
S This was the first retroactive increase given since 1967.
673
the bonus which normally would have been paid before
Christmas was not paid and when the employees asked
about it they were told only that they would get it. It was
not finally paid until January 29. It is difficult to believe
that the computation of the bonus was a matter of such
difficulty that it took 27 days, especially under the circum-
stances that the bonus was planned to be paid on Decem-
ber 24 or 25 and Mrs. Jacobs' illness , which she testified,
was all that delayed the payment, commenced on Decem-
ber 14, only 10 days before. The message could not have
been missed by the employees that the hand which gives
the bonus could also withhold it.
With regard to the wage increase, Respondent argues
that there were no fixed practices regarding the wage in-
crease and that no announcement of a wage increase had
been made although everyone knew that there would be
one. Truly no announcement had been made publicly, but,
in the meetings with the employees in early January, Mrs.
Jacobs acknowledged that there would be a wage increase,
but held back on giving it. After the election when it be-
came clear that a few of the employees had switched their
allegiance from the Union, even though objections to the
election had been filed, nevertheless the Respondent went
ahead and raised their wages. This surely must have point-
ed out to the employees that, in Respondent's view, they
had done the right thing; they finally got the raise which
they knew should have been forthcoming. Respondent
however was under a bargaining obligation at this time, as
I pointed out above, and had no right to give the wage
increase without negotiating with the Union. Clearly the
announcement of the wage raise while the Union 's election
objections were under consideration by the Board
breached Respondent's bargaining obligation under the
Act .6 It is no defense of course that Respondent may have
believed that the Union's objections would ultimately be
overruled. Respondent has placed itself firmly on the horns
of a dilemma . Either it had a duty to bargain with the
Union, in which case its granting of a wage increase at all
was a violation , or a question concerning representation
existed , soluble only by the election processes in which Re-
spondent was then engaged and its granting of a wage in-
crease at this time was unlawful as an interference with the
employees' protected rights. I have found that Respondent
had a duty to bargain at that time; accordingly the action
with regard to both the wage increase and -the bonus is
unlawful. Were I to find that no duty to bargain had ex-
isted , Respondent's action violative of Section 8(a)(1) is
sufficient to bring the case under the rule in Steel Fab Inc.,
212 NLRB 363 (1974). The wage increases were not given
unexpectedly to the employees. Mrs. Jacobs, in the em-
ployee meetings, pointed out that the Company -could
guarantee the employees everything that the Union could
give them without having a union, and that they could
enter into discussions of salary that would be acceptable to
all. Clearly the wage increase was withheld until after the
election because of the Union. This was admitted by Mrs.
Jacobs from the witness stand regarding both the bonus
and the wage increase . As the General Counsel pointed out
6 N LR B v. Laney and Duke Storage Warehouse Co, 369 F.2d 859, 866
(C A. 5, 1966), N.L.R B. v ZeIrrch Co, 344 F.2d 1011, 1015 (C.A. 5, 1965).
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his oral argument , the vice is in the timing of the grant of
benefit by the employer , which in this case was done to
give it the maximum impact on the employees ' self-deter-
mination with regard to the Union . If the Christmas bonus
had been given at Christmas time instead of January 29,
shortly before the election, and if the wage increase had
been regularly given on or about the first of the year and
was in 1974 given on or about the first of the year rather
than withheld, no violation would exist, assuming a valid
question concerning representation , but this was not done.
Under the circumstances of this case , the withholding of
the Christmas bonus and the granting of a wage increase
without bargaining with the Union violates Section 8(a)(5)
and (1) of the Act.
Interrogations
The first reaction Respondent made to the union orga-
nizing was probably about November 14, 1973 , when Mrs.
Jacobs accosted several of the men working near the cut-
ting table and told them that she had a report that there
was a union representative in the lobby talking to the em-
ployees and that some of them had already signed cards.
She told them that if they wanted a union she could get one
for them , and she would like to see the union representa-
tive and talk to him. A couple of days later Russell Jacobs
accosted employee Brazero as he was dressing in an un-
used storage room and, according to Brazero 's testimony,
said that he learned that a lot of people were signing cards
for the Union and that all of those people who had signed
cards would have to go home , and that if Brazero had
signed a card he would have to go home too . Brazero said
he did not know anything about the Union . According to
Mrs. Jacobs the incident involving her resulted from her
becoming aware that there was a lot of chatter and com-
motion among the employees which she could hear in her
office . She went out to investigate and was told that they
were discussing the Union . She asked what the Union was,
and said that if there was someone she should see, he
should come up and see her , and told the employees to
stop talking, or go home and talk on their own time. Eddie
Pimentel, one of those present , understood that she was
discharging him and he asked for his layoff papers and was
told that they would talk about it the following Monday.
Of the employees present, only Brazero spoke English, and
there is no evidence that Mrs. Jacobs ' normal interpreter,
Violet Delgado , was present . Accordingly only Brazero's
account of the incident is of any value ; all that the others
knew was what they had been told Mrs. Jacobs had said.
With regard to the incident with Russell Jacobs, Jacobs
testified that he only asked Brazero whether he had joined
the Union and Brazero said he did not know anything
about it. Clearly both incidents amount to unlawful inter-
rogation of the employees concerning the union activities
of themselves and their coworkers . I credit Brazero's testi-
mony as to the statements made by Mrs. Jacobs and Rus-
sell Jacobs . I disbelieve Mrs. Jacobs' testimony that she
said nothing about bringing in another union . This same
theme reappeared in her individual meetings with the em-
ployees when she asked them to sign the petition revoking
their union designations and is consistent with
Respondent's reaction when the Union first demanded rec-
ognition that the employees were already represented by
another union . Whether in fact Mrs. Jacobs proposed to
call in a different union that she thought might be easier or
better fitted to represent her employees , is not relevant.
The theme ran through the entire relationship at least until
the other union named by Mrs . Jacobs responded to the
Board in reference to the petition that it had no interest in
representing the employees.
The General Counsel contends that throughout the cam-
paign during the meetings with the employees , both with
reference to the petition and the meetings that took place
shortly before the election , as well as in the letter distribut-
ed among the employees by Respondent , Respondent
made thinly veiled threats to go out of business if the
Union came in. However the letter revealed and the testi-
mony of the General Counsel's witness reveals equally well
that in each case what Mrs. Jacobs told the employees was
that if the Union demands were met the Employer would
have to go out of business because it could not pay the
wages and benefits demanded by the Union and make a
profit . The Board has frequently held that it is not unlawful
for an employer to point out that the union 's insistence on
excessive demands could close the factory . Respondent
cites a number of cases to that effect , including B. F.
Goodrich Footwear Company, 201 NLRB 353 (1973), which
support this position . I find no violation in the alleged
threat of plant closure in each of those instances. Whether
as a matter of economics the plant could survive a strike,
we have no evidence , but I deem it immaterial. The
Union 's demands were high , although Chanin assured Re-
spondent that they were negotiable . Whether a strike
would have shut down the plant or whether a successful
strike would have required Respondent to close its doors,
can only be a matter of conjecture , and it was as a conjec-
ture that the picture was presented to the employees. I find
no violation in these statements attributed to Respondent.
The Alleged Surveillance
Every evening as the employees left work they were met
at the entrance of the plant by Union Agent Cintron. Com-
mencing apparently around January 1, Emil Tweel made it
a point to go down to the lobby and stand there while the
employees left. This inhibited the employees as well as Cin-
tron somewhat in their organizing attempts in the lobby,
and Cintron ultimately moved outside the building and
then to one or another of the corners near the plant, past
which the employees would go on their way home. Mr.
Tweel moved out after Mr. Chanin and took a position
from which he could watch Chanin and the employees as
they passed him . The General Counsel contends that this
constitutes unlawful surveillance of the employees in their
union activities . Respondent contends that it does not. I
agree with Respondent. If the Union chooses to conduct its
organizing campaign in a public spot , it cannot complain
that it is watched by Respondent. There is no evidence that
any surveillance of the union meetings was conducted, al-
though such is alleged in the complaint . I find no violation
on this allegation and will recommend that it be dismissed.
TWEEL IMPORTING CO. 675
The Steel Fab Analysis
The General Counsel contends primarily that under the
Steel Fab decision (supra), a bargaining order should issue
in this case. I have found that by its circulation of the
antiunion petition and by the threat implied in the state-
ments made by Mrs. Jacobs to the employees at the meet-
ings on January 8 that the Employer would know that
those who signed the petition were on its side and those
who refused were on the Union's side, Respondent violated
Section 8(a)(1) of the Act. I also found that Respondent
violated the Act in its handling of the bonus and wage-
increase issues, that it directly bargained with employees in
the January 8 meeting by increasing the bonuses offered
and paying them for extra unworked days, and further that
it interrogated them unlawfully. The final effect of all of
the Respondent's unfair labor practices was to demonstrate
very well to the employees that they could deal better with
Respondent without the intervention of the Union, and
that it was Respondent's decision whether they would re-
ceive money and benefits. Except for the fact that I have
already found that Respondent recognized and engaged in
bargaining with the Union and had a continuing duty to
bargain with the Union, I would agree with the General
Counsel that a bargaining order should issue under the
Steel Fab rationale . Surely the Union would have little
chance with a rerun election when Respondent has already
granted the wage increase which was the employees' main
objective, has promised medical benefits and additional
holiday time, and on top of all this has demonstrated its
animus against the Union . These same violations of Sec-
tion 8(a)(1) against the background of the 8(a)(5) violation
already found, add a further dimension to Respondent's
refusal to bargain in that Respondent's action demonstrat-
ed to the employees that they did not need a union and
undercut the Union in its bargaining position. As I view
the case, however, the Steel Fab issue does not arise. I shall
recommend below that the election be set aside and the
petition dismissed, and that Respondent be ordered to
meet and bargain with the Union on demand.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate and sub-
stantial relationship to traffic, trade and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow there-
of.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance and shipping and re-
ceiving employees of Respondent employed at its plant,
exclusive of office clerical employees, sales employees, and
supervisors as defined in the Act, constitute a unit appro-
priate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since on or about November 21, 1973, a majority of
the employees of Respondent in the unit described above
designated and selected the Union as their representative
for purposes of collective bargaining with Respondent and
at all times since such date the Union has been the exclu-
sive representative of all the employees in the unit for the
purpose of collective bargaining.
5. Since on or about November 19, 1973, the Union re-
quested Respondent to recognize and bargain with the ex-
clusive collective-bargaining representative of Respon-
dent's employees in the unit described above with respect
to wages, hours, and other terms and conditions of employ-
ment of said employees.
6. Since on or about December 14, Respondent has
failed and refused to bargain in good faith with the Union
as the collective-bargaining representative of its employees
in the unit described above.
7. By granting a wage increase and a delayed bonus to
its employees without negotiating with the Union, and by
promising further negotiations and the grant of other bene-
fits to the employees, Respondent has attempted to under-
mine the Union among the employees and thereby failed to
bargain in good faith with the Union on behalf of the em-
ployees in violation of Section 8(a)(5) of the Act.
8. By the failure and refusal to meet and bargain with
the Union, by its attempt to undermine the Union, and by
its coercive interrogation of its employees concerning their
and other employees' union activities, by soliciting its em-
ployees to sign petitions to rescind the authorization cards
they signed for the Union and preparing such petitions,
Respondent has interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed in the
Act in violation of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. The Respondent has not violated the Act in other
particulars as set forth above.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
necessary to remedy the unfair labor practices and to effec-
tuate the policies of the Act. As the unfair labor practices
found also interfered with the election held on February
11, 1974, I recommend that the election be set aside. Also
in view of my finding that a bargaining order is warranted,
I further recommend that the petition in Case 2-RC-16404
be dismissed and that all proceedings held in connection
therewith be vacated and set aside.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to-Section 10(c) of the
Act, I make the following recommended: 9
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER7
The Respondent Emily Tweel Jacobs, Russell Jacobs,
and Emil Tweel d/b/a L. Tweel Importing Co., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating its employees about their
union activity.
(b) Promising employees benefits to dissuade them from
union activities.
(c) Bestowing benefits on employees to dissuade them
from union activities.
(d) Refusing to recognize Cap Makers Union, Local 2,
United Hatters , Cap and Millinery Workers International
Union, AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate unit:
All production and maintenance and shipping and re-
ceiving employees of Respondent , exclusive of office
clerical employees , sales employees and supervisors as
defined in the Act.
(e) Unilaterally negotiating with the employers concern-
ing wages and other benefits and granting wage increases
and other benefits without consultation with the Union.
(f) Soliciting its employees to sign a petition withdraw-
ing their authorization to the Union to bargain collectively
on their behalf and aiding and assisting in the preparation
of such a petition.
(g) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their rights guar-
anteed by the Act.
r In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102
.48 of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain with Cap Mak-
ers Union, Local 2, United Hatters, Cap and Millinery
Workers International Union, AFL-CIO, as the exclusive
collective-bargaining representative of the employees in the
aforesaid appropriate unit respecting rates of pay, wages,
and hours , and other terms and conditions of employment
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its premises in New York , New York , copies
of the attached notice marked "Appendix." 8 Copies of
said notice on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's author-
ized representative , shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places , including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges unfair labor practices
not specifically found herein.
IT IS ALSO FURTHER ORDERED that the election held on Feb-
ruary 11, 1974, be set aside and that the petition in Case
2-RC-16404 be dismissed and that all proceedings held in
connection therewith be vacated and set aside.
8In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"