Leader News Co., Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1952

98 N.L.R.B. 119 (N.L.R.B. 1952)

LEADER NEWS CO., INC. 119
organizers to "employee . areas" and prohibiting such activities when all em-
ployees involved are on nonworking time, not only on the selling floors and in
such other areas as are reasonably closed to discussion or to the employees in-
volved but in all other portions of the premises ; and by interrogation concerning
and promise of benefit in connection with union activities , the Respondent inter-
fered with , restrained , and coerced its employees in violation of Section 8 (a) (1)
of the Act.
Beyond the rules against solicitation which the Respondent is testing and are
here found to be violative of the Act, there is no evidence of frequent or system-
atic interference or of such intent as would warrant reasonable apprehension
of danger that it will commit unfair labor practices different from or not related
to those found herein. It will therefore be recommended that the order herein
be coextensive with the unfair labor practices actually committed by the Re-
spondent , and be limited to any like or related conduct.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Retail Clerks International Association , Local No. 1515-M . F., A. F. L., is a
labor organization within the meaning of Section 2 (5) of the Act.
2. By promulgating and enforcing a rule prohibiting nonemployee union organ-
izers from soliciting employees on behalf of a union on the employees ' own time
and in public areas, without limitation of such areas to the selling floors ; by
promulgating and enforcing a rule prohibiting employee organizers from solicit-
ing for a union on nonworking time in any portion of the Respondent ' s premises
other than "employee areas " ; and by interrogation concerning an employee's
union affiliation , activities, and sympathies , and promise of benefit in connection
therewith , thereby interfering with, restraining , and coercing its employees in
the exercise of rights guaranteed in Section 7 of the Act, the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume ]
LEADER NEWS CO., INC. and OFFICE EMPLOYES INTERNATIONAL UNION,
LOCAL 153, AFL. Case No. 2-CA-1609. February 15, 1952
Decision and Order
On August 7, 1951, Trial Examiner Sydney S. Asher, Jr., 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 take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent's request for oral argument is hereby denied because
98 NLRB No. 22.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the record, including the Respondent's brief and exceptions, ade-'
quately present the issues and positions of the,parties.
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate
Report, the Respondent's exceptions and brief, and the entire record
in the case, and hereby rejects the Trial Examiner's findings, conclu-
sions , and recommendations, except insofar as they are consistent
with our findings, conclusions, and order hereinafter set forth.
1. The Trial Examiner found that the Respondent violated Section
8 (a) (5) and (1) of the Act by failing to answer the Union's letter
requesting negotiations and by dealing instead directly with the
employees which resulted in the granting of certain benefits and con-
cessions . We do not agree.
The facts, which we find to be relevant to this issue, are substantially
as follows :
On August 24, 1950, a majority of the Respondent's employees signed
union-authorization cards.' On August 28, the Respondent received
from the Union a letter stating that the Union represented the Re-
spondent's employees and requesting an appointment to discuss recog-
nition and a contract. The Respondent's president thereupon sum-
moned to his office his son, Stanley M. Estrow, a practicing attorney
in New York City. When Estrow appeared at his father's office in
the plant, two employees 2 entered and informed the Respondent that
they had been designated by the employees to talk to Attorney Estrow
before any steps were taken by the Respondent with respect to the
Union's letter, and that the employees wanted to deal directly with
management . When Estrow remonstrated that he did not see how
he could deal with them directly in view of the Union's letter, he
was assured that the employees could negotiate directly with manage-
ment. Estrow replied in effect that the Respondent would bargain
with the Union or with the employees, but that the Respondent would
deal directly with the employees only if the Union approved that pro-
cedure. To that end Estrow suggested that the employees check with
the Union and advise him whether the Union would consent to direct
negotiations with the employees. After the union steward made a
telephone call to the Union, the employees reported to Estrow that
the Union had agreed to direct employee negotiations 3 and again
I In view of our decision herein, we find it unnecessary to determine whether the authori-
zation cards were to become effective only after the employees failed in direct negotiations
with the Respondent and whether the Trial Examiner erred in excluding testimony offered
by the Respondent to establish such a condition.
2 Solomon , the union steward, and Marilyn Cohen.
While Ben J. Cohan, the Union's business representative , denied having consented to
such a procedure, he admitted that on August 24 lie told the employees to attend meetings
with Estrow and to "discuss . . . improvements in wages, liouis and working conditions."
LEADER NEWS Co., INC. 121
requested that the Respondent bargain directly with the employees.
Such direct negotiations were thereupon undertaken in several meet-
ings 4 with Estrow, and by September 5 the employees accepted
Estrow's offer of a wage increase and other benefits. Throughout
this period the Union, although fully aware of the direct negotiations
which were in progress, at no time voiced any protest.
Upon the basis of the record as a whole, we cannot say that Respond-
ent has failed to perform its statutory obligations. We arrive at
this conclusion in view of the Respondent's expressed willingness to
bargain with the Union upon receipt of its letter, its expressed unwill-
ingness to deal directly with the employees unless the Union were to
authorize such procedure, its exhortation to the employees to check
with the Union and report back whether such authorization had been
obtained, its undertaking of such direct negotiations in good faith
reliance upon the employees' assurance that the Union had been advised
and had authorized such dealings, and the Union's failure to lodge
any protest, although fully aware of the direct negotiations over a
period of more than a week. This conduct not only verified the
correctness of the employees' report to Estrow, but under all the
circumstances was tantamount at least to tacit authorization to the
employees to deal directly with Respondent.5 Indeed, even the
General Counsel conceded at the hearing that the Respondent acted
in good faith in dealing directly with the employees.
We accordingly find that the Respondent did not violate Section
8 (a) (5) and (1) of the Act by its conduct hereinabove described.
2. The Trial Examiner found that the Respondent violated Section
8 (a) (1) of the Act by two statements made in the course of its meeting
with the employees. We do not agree.
(a) The first alleged statement found by the Trial Examiner
was a threat to close the plant "if the union came in." This finding is
based solely on the testimony of Rafaniello, who testified on direct
examination by the General Counsel as follows :
Q. Now, during those first two or three meetings with Mr.
Stanley Estrow, in Mr. Michael Estrow's office, do you recall
whether anything was said about the union coming into the plant?
A. I believe at that very first meeting Mr. Estrow said some-
thing about if the union came in, he would have to close down
the shop because he couldn't give us the raises that we wanted.
The Trial Examiner credited this testimony of Rafaniello on the
stated ground that Estrow did not deny having made the alleged
* For reasons indicated infra, we find , contrary to the Trial Examiner , that no state-
ments violative of the Act were made during these meetings.
5 Thus, the instant case is readily distinguishable on its facts from Reeder Motor Co.,
96 NLRB 831.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement. Although Attorney Estrow did not specifically deny
having made this statement in so many words, he gave a different
version of the conversation when he testified, in narrative form :
So then I had previously told them that we were not in a very
good position financially, insofar as any arrangements with the
employees were concerned, so that they could not expect anything
too munificent from us, that we could not be as liberal as we would
like to be.
Estrow's testimony was not only corroborated by that of employee
Myrna Pitt; she specifically denied that Estrow made the threat in
question. Moreover, although there were at least 15 employees present
at the time of the alleged threat, no employee, except Rafaniello, was
placed on the stand to testify as to the threat.
On the other hand, Rafanlello admitted at the hearing that at about
the time in question he was playing "tick-tack-toe" with another
employee and "wasn't listening" to Estrow. In fact, at one point
in his testimony on cross-examination, Rafaniello stated that he did
not "recall" that Estrow mentioned the Union in making the alleged
threat. In addition, on independent matters, Rafaniello changed
his testimony during the course of the hearing and also admitted
having lied to Estrow. Under all the circumstances, we believe that
the Trial Examiner's credibility finding is clearly in conflict with
the preponderance of the evidence on the record as a whole. Accord-
ingly, we do not credit Rafaniello's testimony in this respect and find
that Estrow did not threaten to close the plant in the event of union
organization.
(b) The Trial Examiner found that the second statement was made
during the bargaining negotiations on September 5, after the employees
had first rejected the wage increase offered by Estrow and expressed
their desire to bargain through the Union. At this point, when
employee Pitt asked Estrow what would happen to those employees
who wanted to accept the Respondent's offer, Estrow replied that
"because of the people who wanted to join the Union, no one would
get anything." The Trial Examiner found that this was a coercive
statement proscribed by Section 8 (a) (1) of the Act.
Although not entirely free from doubt, we believe that, in view
of the Respondent's conduct during the direct ' negotiations with
the employees, the statement did not have a reasonable tendency to
restrain and coerce the employees. Under the circumstances, the
reasonable "implication of this statement was that the Respondent
could not engage in individual dealings once the employees desired
to negotiate through the Union as their bargaining representative,
a position which was in conformity with the established law. This
LEADER NEWS CO., INC. 123
is confirmed by Estrow's earlier statements to the employees that the
Respondent would have to negotiate with the Union unless both • the
employees and the Union consented to direct dealings with the
employees.
Accordingly we shall dismiss the complaint in its entirety.
Order
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint herein against the
Respondent, Leader News Co., Inc., be, and it hereby is, dismissed.
Intermediate Report
These proceedings involve allegations that Leader News Co., Inc., New York,
New York, herein called the Respondent, interfered with, restrained, and coerced
its employees in violation of Section S (a) (1) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, and refused to bargain
collectively with Office Employes International Union, Local 153, AFL, herein
called the Union, in violation of Section S (a) (1) and (5) of the Act. After
issuance of a complaint and filing of an answer, a hearing was conducted before
me on May 21, 1951, at New York, New York All parties were represented and
participated fully in the hearing.'
The evidence reveals that (1) the Respondent is engaged in commerce within
the meaning of the Act ; 2 (2) Office Employes International Union, Local 153,
AFL, the charging party, is a labor organization within the meaning of the Act,
and (3) the unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act consists of all office, clerical, and shipping
employees of the Respondent employed at its Lexington Avenue plant, exclusive
of all supervisors as defined in the Act. There is no dispute concerning these
matters.
The disputed matters concern (1) certain acts of interference, restraint, and
coercion alleged to have been committed by the Respondent; (2) whether or not
the Union represented a majority of employees in the appropriate unit on August
24, 1950, and at all times since that date ; and (3) whether or not the Respondent
I At the close of the hearing , time was granted to all parties for filing briefs or proposed
findings and conclusions . At the request of counsel for the Respondent , the Chief Trial
Examiner extended the time for filing briefs to June 21 , 1951 . On June 22 , 1951, counsel
for the Respondent sought an additional extension of time . This request was denied by the
Chief Trial Examiner on the same day . Thereafter , on June 25 , 1951 , a brief was received
from the Respondent ' s counsel. It has not been considered No other party filed a brief.
On July 23 , 1951, after notice to all parties and in the absence of objection , an order was
issued correcting certain errors in the transcript of record!
2 The Respondent is engaged at New York , New York, in the business of rendering shipping
instructions and billing and collection services to publishers in connection with the distribu-
tion of various periodicals to wholesale news dealers located throughout the United States
and in various foreign countries , and to remitting to said publishers the price of magazines
and other related periodicals . During the year 1950 , the Respondent received in excess of
$50,000 for the services desciibed above from publishers shipping in excess of $25,000 worth
of magazines and other related publications to and from States other than the State of New
York and foreign countries . The publishers themselves are instrumentalities of interstate
commerce . The Respondent concedes the Board 's jurisdiction.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to bargain collectively with the Union in good faith on and after August
28, 1950, after having received the Union' s demand for recognition.
Facts
In the latter part of August 1950, the Respondent employed 17 nonsupervisory
employees. About August 19 or 20, 1950, 4 of them, William Solomon, Jerry
Rafaniello, Gene Klein, and David Goldstein, visited the office of the Union and
obtained blank membership application cards. On August 24, 12 of the Respond-
ent's employees attended a meeting at the office of Ben J. Cohan, the Union's
business representative. During the course of the meeting, all 12 employees
present signed application cards for membership in the Union, and the cards of 2
other employees were submitted to the Union either that day or shortly there-
after.' Solomon was elected shop steward, and Rafaniello assistant shop
steward.' Cohan was asked whether the employees should attend any meeting
called by representatives of the Respondent and whether they should answer
questions at any such meeting. He replied that they should attend such meetings
and answer questions, but should not enter into negotiations with the Respondent,
as the Union was their bargaining representative.5 On the following day, August
25 (a Friday), the Union sent a registered letter to the Respondent stating that
it represented the Respondent's employees and requesting a meeting for the pur-
pose of discussing recognition and a collective bargaining agreement. This letter
was never answered by the Respondent. On August 28 the Union filed a petition
with the Board, seeking certification as the bargaining representative of the
Respondent's employees.6
The letter described above was received by the president of the Respondent
on Monday, August 28-a fact which immediately became known to all the
employees.' He telephoned to Stanley M. Estrow, his son and the attorney for the
Respondent. In response to this telephone call, Estrow appeared at the Respond-
ent's place of business on the same day 3 and commenced to read the Union's
letter in his father's office Before he had finished reading the letter, however,
Solomon entered, accompanied by Marilyn Cohen, another employee. They
informed Estrow that they had been designated by the employees to talk to him
before any steps were taken by the Respondent with regard to the Union's letter.
8 All the cards are dated August 24 There is some conflict as to whether these two cards
were turned in during the meeting of August 24 or at some later date. However , I find it
unnecessary to resolve this conflict.
4 There is some conflict as to whether or not Klein was also elected an additional assistant
shop steward However, I deem it unnecessary to resolve this conflict.
5 The finding with respect to Cohan 's answer to this question is based upon the credited,
testimony of Cohan, a witness for the General Counsel, who impressed me as an accurate,
sincere, and dependable witness.
8 Case No. 2-RC-2656. On September 5, 1950, the Board's Regional Office sent a letter to
the Respondent notifying it of the filing of this petition. This was apparently the first
knowledge obtained by the Respondent that the Union had filed such a petition.
° The employees realized that the Union would write such a letter, and designated one
of their number to watch for it and to notify them when it arrived This plan was
carried out, and the employees were thus informed of the letter's receipt immediately upon,
its arrival They anticipated that the letter would cause Stanley M. Estrow, the Respond-
ent's attorney , to visit the Respondent 's place of business and talk to the employees. As
will be seen , events bore out their expectations in this respect.
8 The finding that Estrow appeared on the same day as the letter's receipt is based upon
the credited testimony of Rafaniello. Estrow's testimony that he appeared the day
following the letter ' s receipt is deemed inaccurate , as he admittedly appeared on August
28, and the previous day was a Sunday.
LEADER NEWS CO., INC. 125
This, however, was not true ; Solomon and Cohen had not been so "designated." s
They stated that the employees desired to negotiate directly with management.
Estrow answered that he did not understand how he could deal directly with the
employees in view of the Union's letter. Solomon and Cohen replied that the
employees understood that they could negotiate directly with management10
Estrow thereupon assembled all the Respondent's employees in the Respondent's
place of business, and addressed them. This meeting commenced at about 4 p. m.
and lasted approximately 2 hours." Estrow mentioned that he had received a
letter from the Union demanding recognition, and remarked that he did not
understand why the employees wanted a union. Solomon replied that the
employees were dissatisfied with the wages and that there were other benefits
which they desired, such as sick leave. Estrow stated that he would have to
close down the shop if the Union came in, because he could not give the employees
the wage increases they wanted.' He asked the employees whether they wanted
to deal directly with him, or whether they wanted him to negotiate with the
Union." During a brief pause which followed, Solomon called Cohan on the tele-
phone and told Cohan that the employees had been addressed by Estrow. Cohan
replied that the employees should attend any meeting called by Estrow and
answer questions, but should not negotiate with him'" The employees then
infotmed Estrow that they wanted to negotiate directly with him. It was ar-
ranged that a group of employees would meet with Estrow at a later date.
In accordance with this understanding, a meeting was held at lunch time on
August 31 at the Respondent's place of business. The Respondent was repre-
sented by Estrow and two supervisors. The employees were represented by five
employee representatives, each from a different department.'6 No representative
6 Rafaniello, a witness for the General Counsel, testified credibly that he knew nothing
about Solomon and Cohen being selected to speak to Estrow. Employee Sarah Marcus,
a witness for the Respondent, testified to the same effect. I Employee Myrna Pitt, a witness
for the Respondent, testified that Solomon and Cohen were designated by the employees
to speak to Estrow when the Union's letter arrived She did not describe how or under
what circumstances this "designation" was accomplished. Her testimony in this respect
is rejected It appears likely that had such a "designation " taken place , Rafaniello-
who was the Union ' s assistant shop steward-would have known of it.
to The findings with respect to the discussion between Estrow and Solomon and Cohen
is based upon the uncontradicted testimony of Estrow. Neither Solomon nor Cohen
testified , and neither was in the Respondent 's employ at the time of the hearing. The
Respondent 's counsel and counsel for the General Counsel both stated on the record
that they had been unable to ascertain Solomon's whereabouts
11 Working hours were from 9 a in. to 5 p. in . Thus, the meeting extended about 1 hour
beyond working hours.
12 Testimony was given concerning this meeting on behalf of the General Counsel by
Rafaniello, and on behalf of the Respondent by Estrow, Pitt, and Marcus. According to
Rafaniello, Estrow stated that "if the Union came in, he would have to close down the
shop because he couldn ' t give us the raises that we wanted ." While Rafaniello admitted
that he had not paid attention during Estrow 's entire speech, his testimony in regard to
this statement of Estrow was positive , and was not shaken on cross-examination. Estrow,
who testified after Rafaniello , did not deny that he made such a statement to the employees.
Pitt, in effect, denied that Estrow had made such a statement Although Marcus testified
with respect to the meeting in question, she did not mention the statement alleged to have
been made by Estrow In view of the fact that Estrow did not deny having made such a
statement , I adopt Rafaniello ' s testimony that Estrow made such a statement , and reject
the contrary testimony of Pitt
13 Estrow testified that he left the room in order to give the employees an opportunity
to discuss among themselves what they wanted done . Rafaniello denied that Estrow left
the room. In this respect, I credit the testimony of Rafaniello.
1" The finding with respect to the telephone call made, by Solomon to Cohan is based
upon the credited testimony of Cohan.
15 These included Solomon, Rafaniello , and Cohen . While there is some slight conflict
in the record , I find that the employee representatives were chosen by the employees, and
that the Respondent took no part in their choice.
I
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union attended. During the course of this meeting, Estrow again stated
that he was "very surprised" that the employees had taken "such a rash move"
as going to the Union without first consulting him or some other official of the
Respondent. He also explained the provisions of the Respondent's pension fund,
which had been in effect since 1942. The employee representatives presented
their demands with respect to wages and other conditions of employment.
Estrow remarked that their demands were "out of line," but informed them that
he would investigate the matter and give them the Respondent's answer at a later
date.
Another meeting was held on the following day, September 1, on the Re-
spondent's premises. The Respondent was represented by Estrow and one super-
visor ; the employees by three employee representatives 1s Estrow again ex-
plained the pension fund. The employees asked for wage increases and 15 days`
sick leave Estrow offered them 5 days' sick leave, and a wage increase of 5 per-
cent every 6 months tip to 3 years. When the employees voiced dissatisfaction
with the proposed wage raise, Estrow offered them, an immediate increase of $3
per week. He suggested that the employees discuss the offer among themselves
and advise him of the group's decision."
On September 5," before office hours, the employees met and discussed the Re-
spondent's offer. No representative of the Union or the Respondent was present.
The consensus of opinion was to reject the offer. That same day Estrow inter-
viewed the employees in groups.1D However, neither Solomon, Klein, nor
Rafaniello were present in any of these groups" Solomon, stating that Estrow
wanted to know if everyone was satisfied, commenced to take a poll among the
employees but became angry at their evasive answers and requested Rafaniello
to take the poll. Rafaniello then asked each employee : "Should we accept
Estrow's offer or let the Union negotiate for us?" The result was overwhelmingly
against accepting the Respondent's offer 21 Rafaniello reported this result to.
Estrow.` Employee Myrna Pitt then asked Estrow what would happen with
respect to those employees who wanted to accept the Respondent's offer. Estrow
replied that "because of the people who wanted to join the Union, no one would
16 Solomon , Rafaniello , and Klein.
27 The authority of the employee representatives to negotiate was apparently somewhat
limited On this subject Rafaniello testified :
We were supposed to collect the grievances, the salary increases that everyone wanted,
and benefits that we wanted from Mr. Estrow, and we were supposed to present them,
to Mr. Estrow We were not to decide anything. We were just to relay the offer.
18 September 2 was a Saturday, September 3 a Sunday, and September 4, Labor Day.
10 According to Estrow's testimony, the employees "wanted to know how the plan,
applied to each of them individually," and he discussed it with them, and told them "it
was up to them to determine as amongst themselves whether they wanted to accept the
plan or not, or whether they wanted to submit a counterproposal " According to the
testimony of Marcus, the employees filled out slips containing their individual demands,
and submitted these slips to Estrow in groups . It is not clear , however, if Marcus was
referring to the group conferences with Estrow on September 5.
20 The finding that these three employees were not included is based upon the undenied
and credited testimony of Rafaniello. Estrow, who was present during Rafaniello's testi-
mony, and who later himself took the stand, neither denied this fact nor offered any-
explanation.
21 According to Rafaniello, the vote was 14 to 4 against the Respondent's offer. As
there were only 17 nonsupervisory emploSees eligible to participate in the vote, Rafaniello's
figures are not entirely accurate
22 The finding with respect to this poll is based upon the credited and uncontradicted
testimony of Rafaniello Although he was followed on the stand by Pitt, Marcus, and
Estrow (witnesses for the Respondent), all of whom had been present during his testi-
mony, none of them testified regarding this poll.
LEADER NEWS CO., INC.
get anything." 2' After that, Rafaniello and another employee went to the wash-
room. When they returned, they were informed by employee Marilyn Cbhen that
all the employees were apparently satisfied with the Respondent's offer. There-
after, a committee of employees informed Estrow that the Respondent's offer was
satisfactory, and requested that he put the wage increase and sick leave into
effect " This was (lone. Later, the Respondent posted on its bulletin board
an announcement of the new wage rates and sick leave. -
On September 28, 1950, the Union filed the original charges herein, and on
October 30, 1950, withdrew its representation petition without prejudice. On
the same day, the Union filed the first amended charges herein.
Interference, Restraint, and Coercion
The complaint alleges and the answer denies that the Respondent from on or
about August 28, 1950, has interfered with, restrained, and coerced its employees
in the following respects : ( a) Interrogating its employees concerning their union
affiliation; (b) threatening its employees with discharge or other reprisals if
they joined or assisted the Union; (c) warning its employees to refrain from
assisting, becoming members of, or remaining members of, the Union; (d) offer-
ing, promising, and granting a wage increase to its employees on or about Sep-
tember 12, 1950; (e) offering, promising, and granting sick leave or vacation
and other benefits to its employees on or about September 12, 1950; (f) circulat-
ing among its employees for their signature a petition repudiating and with-
drawing from the Union.
At the close of the General Counsel's case, the Respondent moved to dismiss
those portions of the complaint designated above as (a), (b), (c), and (f).
With the concurrence of the General Counsel, the motion was granted with respect
to the sections designated (a) and (f) R5 With respect to the sections desig-
nated as (b) and (c), ruling was reserved. This part of the motion is disposed
of herein.
With respect to the sections designated as (b) and (c), it will be recalled that
on August 28, Estrow told the assembled employees that the plant would be
closed if the Union came in. Such a threat undoubtedly constitutes inter-
ference, restrain , and coercion , violative of Section 8 (a) (1) of the Act."
Moreover, Estrow's statement to Pitt that no employee would receive any
raise in pay because some had chosen to be represented by the Union clearly
indicated that continued adherence to the Union would stand in the way of
wage increases. Thus it, too, coerced the employees in violation of their statu-
tory rights. By these two statements of Estrow, the Respondent violated Sec-
tion 8 (a) (1) of the Act. Accordingly, the Respondent's motion to dismiss
those portions of the complaint designated as (b) and (c) is denied."
"The finding with respect to this conversation between Pitt and Estrow is based upon
the uncontradicted and credited testimony of Rafamello . Although both Pitt and Estrow
followed Rafamello on the stand, and both were present during Rafanlello ' s testimony,
neither testified with regard to this particular conversation.
='Estrow testified that the committee consisted of Solomon , Cohen, and Rafaniello.
Rafaniello testified that "lie didn ' t has a anything to do " with communicating to Estrow
that the employees would accept the Respondent ' s offer. In this respect, I credit Rafani-
ello's testimony
" With respect to the section designated ( f), Rafaniello testified that, at the behest of
Solomon , he signed a certain document . However , the document was not introduced into
evidence , and it was not shown that Solomon , when he requested Rafamello to sign, was
acting on behalf of the Respondent.
26 A Kravitz & Conipiany, 89 NLRB 1415 ; and Queen City Valves, Inc , 93 NLRB 1576
27 Those portions of the complaint designated as (d) and (e) will be discussed below.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union 's Majority Status
The complaint alleges and the answer denies that on August 24, 1950, a
majority of the employees in the unit described above designated the Union
as their bargaining agent, and that at all times since that date the Union has
been their bargaining representative by virtue of Section 9 (a) of the Act.
As previously related, at least 12 of the Respondent's 17 nonsupervisory em-
ployees had signed union application cards on August 24. These cards were
worded as follows :
OFFICE EMPLOYES' INTERNATIONAL UNION, LOCAL 153
American Federation of Labor
265 West 14th Street, New York 11, N. Y. WA-9-3528-29-30
I hereby enroll and designate Office Employes' International Union Local
153 to represent me in all negotiations for collective bargaining and better
working conditions.
The Respondent sought to show that, prior to the execution of these cards,
Cohan had verbally indicated to several of the employees that, by signing the
card, they neither became members of the Union nor designated the Union as
their collective bargaining agent, but simply authorized the Union to write a
letter to the Respondent on their behalf.28 This testimony, however, was rejected
as an attempt to vary the terms of a written instrument by parole evidence 21
The Respondent also maintains that the employees merely joined the Union
in order to use it as a means of compelling the Respondent to deal directly
with them. Whatever the motive of the employees may have been, however,
it is clear that a majority of them did, in fact, designate the Union as their bar-
gaining agent on August 24, 1950. I therefore find that, on that date, the
Union represented a majority of the employees in the bargaining unit described
above.
Did the employees thereafter revoke their designation of the Union? So far
as the record shows, none of them did so in any writing addressed to the Union
or to the Respondent. It may perhaps be argued that, on August 28, by verbally
informing Estrow that they were willing to deal directly with the Respondent,
the employees in effect revoked their designation of the Union. But further
analysis of the conditions under which this step was taken lead to the conclu-
sion that such was not the case. The decision that the employees wanted to
deal directly with Estrow was communicated to Estrow on the Respondent's
premises, at a meeting called by Estrow, in response to a question put to the em-
ployees by Estrow, and in his presence. In such an atmosphere, it cannot be
said that the decision represented the free and untrammeled expression of the
28 This evidence was apparently introduced to substantiate the Respondent 's third
affirmative defense, contained in its answer , which alleges that "a majority of the em-
ployees ... had been told . . . that the execution of membership cards by them was a
tentative act which would not become effective until after the employees had terminated
negotiations with the Respondent and that there would be no action taken by the Union
in behalf of such employees."
29 It has been held that an employee ' s thoughts as to what a union card meant cannot
negative the overt action of having signed a card designating a union as bargaining agent,
Joy Silk Mills v. N. L. R. B, 185 F. 2d 732, 743 (C. A., D. C.), certiorari denied, 341 U. S.
914, and that testimony of employees ' subjective intention in signing union cards cannot
be accepted to change the legal effect of their overt acts , The Nubone Company, Inc., 62
NLRB 322, 344, enforced 155 F. 2d 523 (C. A. 3).
LEADER NEWS CO., INC. 129
employees' choice.30 Moreover, it is significant that Estrow, on August 28 and
thereafter, interfered with, restrained, and coerced the employees in the manner
described above. It is reasonable to infer, and I find, that the Union's purported
loss of majority, if any, is directly attributable to Estrow's illegal conduct. The
Respondent cannot, as justification for its refusal to bargain with the Union,
set up the defection of union members which it had induced by unfair labor
practices, even though the result was that the Union no longer had the support
of a majority 81 The action of the employees on August 28, in effect repudiating
the Union, was ineffective because it was not voluntary. Moreover, by their
overwhelming vote on September 5 to conduct negotiations through the Union,
the employees reaffirmed their previous designation of the Union as their bar-
gaining agent. I therefore find that at all times since August 24, 1950, the Union
has been, and still is, the exclusive representative for the purposes of collective
bargaining of all the employees in the unit described above, by virtue of Section
9 (a) of the Act.
The Respondent's Refusal to Bargain
The Union's letter of August 25 to the Respondent was clearly an effective
demand for recognition. This letter was ignored by the Respondent. As the
Union in fact represented a majority of the employees at the time the letter was
received, it was an illegal refusal to bargain for the Respondent to ignore the
Union's letter, unless it had a good and sufficient reason for so doing. In its
answer, the Respondent alleges as a first affirmative defense that after receipt
of the Union's letter the Respondent "was informed by a committee of its em-
ployees that they desired to negotiate directly with the employer, to disregard
the notice from the Union, that they had notified the Union, and that said Union
had advised them that they had no objection thereto." While it is not entirely
clear from either the pleadings or the oral argument, I assume that the Respond-
ent attempts to justify its failure to reply to the Union's letter on the ground that
the conduct of the employees on and after August 28 raised a reasonable doubt
in the mind of the Respondent that the Union represented a majority of the
employees. If such, indeed, is the Respondent's defense, I am of the opinion
that it lacks merit.
The Respondent maintains that it was prepared to negotiate with the Union
if the employees so desired. This, however, is not borne out by the record.
When Solomon and Cohen advised Estrow that the employees wanted to deal di-
rectly with him, and falsely stated that they made this statement on the authority
of all the employees, Estrow was apparently not entirely convinced, for in
order to dissipate any lingering doubt he may have had, he assembled the em-
ployees and proceeded to inquire of them with regard to their desires in the
matter. This does not smack of good-faith doubt of the Union's majority. Had
Estrow honestly entertained a doubt as to the Union's majority, he could have
asked the Union to submit some proof of its majority, or requested the Union
to file a representation petition, or himself have filed such a petition. Instead,
however, he assembled the employees and questioned them directly: This he
had no right to do. Estrow knew, or should have realized, that the employees'
expression of opinion voiced at a meeting called by the Respondent's attorney
on the Respondent's premises, and held in the presence of the Respondent's
attorney, could not result in a free and uncoerced expression of opinion. His
conduct in this respect therefore does not indicate good faith.
80 While I consider Estrow's presence as a factor, I would not have reached a different
conclusion had I found that he left the room while the employees were making their decision.
3' Medo Photo Supply Corporation v. N. L. R. B, 321 U. S. 678, 687 ; and Franks Bros.
Company v N L R B, 321 U 8 702.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover , Estrow's lack of good faith is shown by the fact that he engaged in
unfair labor practices after the receipt of the Union 's claim for recognition"
This consisted of his threat to the assembled employees that he would close
down the pilant if the Union came in, and his statement to Pitt that since some
employees had chosen to be represented by the Union , no employee would get
any raise . Finally, Estrow 's conduct on September 5 in speaking to the employees
in separate groups, and his unexplained failure to include Solomon , Klein, and
Rafaniello-the three most active union adherents-in any of these groups is,
at the least, highly suspicious . But even had Estrow still entertained any good-
faith doubt - as to the Union ' s majority on September 5, which I do not find
to be the case , such a doubt would have been seriously undermined when
Ttafaniello informed him that the employees had voted overwhelmingly to
conduct the negotiations through the Union. It is therefore clear, and I find,
-that at no time on or after August 28 , 1950, did the Respondent entertain
a good -faith doubt of the Union 's majority . It follows that the Respondent's
refusal to bargain with the Union on August 28, 1950, and thereafter, was
violative of Section 8 (a) (1) and ( 5) of the Act.
The Respondent further argues that it relied upon the statements made to
it by its own employees, which had been repeated from time to time, to the
effect that the Union was aware of these negotiations , and that they were
being conducted with the Union 's blessing and consent . In short, the Respondent
maintains that it was led to believe, by the employees ' statements , that the
Union had no objection to the direct negotiations . In this connection , Estrow
testified that on August 28, the employees stated that they had called the Union
and had advised the Union that they were going to negotiate directly with the
Respondent , and that the Union had expressed its approval . He further testified
that, at the negotiation meeting of September 1, he asked Solomon if the Union
had changed its stand on the matter , and was told by Solomon that the Union
was kept informed of each step being taken , and was satisfied that the employees
should deal directly with the Respondent . In effect, this defense is only another
facet of the defense previously discussed , namely, that the Respondent in good
faith doubted the Union 's majority status. But as found above, the Respondent
was not acting in good faith when it failed to respond to the Union ' s demand
that it be granted bargaining rights.
The Union 's Knowledge of the Direct Negotiations
As the second affirmative defense contained in its answer , the Respondent
alleges that "the acts of the Union in encouraging and approving of the
employees in having direct negotiations with Respondent and without objection
on the part of said Union , constituted entrapment in an effort to provide the
basis for the present complaint . That by said acts and actions on the part of
said Union , the bad faith on the part of said Union is obvious ." In short, the
Respondent maintains that the Union was fully aware of the fact that the
Respondent was dealing directly with the employees , but took no steps to notify
the Respondent or the employees that it objected to this course of action.
Pitt testified that after either the first or the second meeting between Estrow
and the employees , she and about four other employees of the Respondent
spoke to Cohan . According to Pitt, the employees told Cohan that they had
had a meeting with Estrow, during which Estrow had expressed surprise and
had stated that he would like to negotiate directly with the employees "to put
32 Compare Star Beef Company , 92 NLRB 1018 , and Joy Silk Mills v. N. L. R B , supra,
at page 741.
LEADER NEWS CO., INC. 131
an end to it.t' Pitt further testified that Cohan replied that "it was perfectly
all right" to talk to Estrow , and to negotiate with him. Cohan, however, denied
that he had ever been told by any of the employees that they desired to negotiate
directly with the Respondent. He testified that sometime between August 27 and
September 2, he was informed by Solomon in a telephone conversation that
Estrow had made certain offers to the employees with respect to wages and other
working conditions. Moreover, Cohan did not deny that he knew that the
Respondent was negotiating directly with the employees. I reject Pitt's version
of the discussion between Cohan and the five employees, and credit Cohan's
testimony that he was never told by any employee that they preferred to
deal directly with the Respondent. However, I am convinced and find that
the Union was aware that direct negotiations were being conducted, but never
indicated to the employees that it approved of this procedure (on the contrary
Cohan told Solomon not to negotiate directly with Estrow), and never contacted
the Respondent with respect thereto after learning what had occurred.
Does this fact help the Respondent? I do not regard as crucial the fact that
the Union failed to protest these direct negotiations by contacting the Respondent.
Even though the Union knew that the Respondent was committing unfair labor
practices, it does not follow that it was under any duty to warn the Respondent
of the consequences of its conduct. Nor may the Union's silence be regarded
as a withdrawal of its claim for recognition. A union's claim for recognition
cannot be deemed to have been withdrawn merely because it is not constantly
reiterated 33 And the Union herein never revoked its letter of August 25, or
otherwise took any affirmative action indicating a disclaimer of its interest in
representing the employees. The Union's withdrawal of its representation
petition on October 30, 1950, is immaterial to the issues herein, because it
occurred after the commission of the Respondent's unfair labor practices.
Moreover. it is quite likely that the petition was merely withdrawn because of the
filing of the charges herein, especially since, by filing the charges, the Union
seeks to compel the Respondent to bargain with it. I therefore find that the
Union has never withdrawn its representation claim.
The Wage Increase
As previously noted, the complaint alleges and the answer denies that the Re-
spondent violated the Act by offering and granting a wage increase and sick leave
or vacation benefits to its employees on or about September 12, 1950" The grant-
ing of a wage increase during a union's organizational campaign is not per se
violative of the Act. As the Board has said, "What is unlawful under the Act is
the employer's granting or announcing such benefits (although previously deter-
mined upon bona fide) for the purpose of causing the employees to accept or reject
a representative for collective bargaining." 35 (Emphasis in original.) It is
significant that the wage increase and sick leave here in question were not offered
to the employees until after the Respondent was aware of the representation
claim of the Union. In view of this fact, and in view of other acts of inter-
ference, restraint, and coercion committed by the Respondent, as well as its re-
fusal to bargain with the Union, as found above, I am convinced, and find, that
the wage increase and sick leave were granted to the employees in September 1950
33 A union's unexplained failure to answer an employer's invitation to bargain or its
unexplained failure'to appear at a representation hearing, have been held not to constitute
a disclaimer of its interest in representing the employees . Lee-Mark Metal Mfg Co , 85
NLRB 1299, footnote 4; and Fifteenth Annual Report of the National Labor Relations
Board (1950), p 35.
34 These are the allegations designated as (d) and ( e) above.
35 Hudson Hosiery Company, 72 NLRB 1434, 1437.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purpose of influencing them to reject the Union as their bargaining repre-
sentative. As such, it constituted a violation of Section 8 (a) (1) of the Act"
Moreover , as the Respondent did not consult the Union before granting these
benefits to its employees but instituted them unilaterally, this conduct constitutes
an additional refusal to bargain with the Union , within the meaning of Section 8
(a) (5) of the Act.n The record , however, establishes that no increased vacation
benefits were granted to the employees , except as an indirect consequence of the
newly established sick leave ." Accordingly , I find that the Respondent did not
violate the Act by granting increased vacation benefits to its employees.
CONCLUSIONS OF LAW
1. Leader News Co., Inc ., is engaged in commerce within the meaning of
Section 2 (6) and ( 7) of the Act.
2. Office Employes ' International Union, Local 153, AFL , is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. All office , clerical, and shipping employees of the Respondent employed at
its Lexington Avenue plant , exclusive of all supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 ( b) of the Act.
4. Office Employes ' International Union, Local 153, AFL , was on August 24,
1950 , and at all times thereafter has been, the exclusive representative of all the
employees in the aforesaid appropriate unit for the purposes of collective bargain.
ing within the meaning of Section 9 (a) of the Act.
5. By refusing on August 28, 1950, and at all times thereafter , to bargain col-
lectively with the Office Employes ' International Union, Local 153 , AFL, as the
exclusive representative of alt its employees in the aforesaid appropriate unit,
and by unilaterally instituting wage increases and sick leave in September 1950,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
6. By the above conduct, by offering and granting a wage increase and sick leave
to its employees in September 1950, in order to induce them to reject the above-
named labor organization as their bargaining agent, and by threatening its em-
ployees with economic reprisals if they joined , assisted , or remained members
of the above-named labor organization , thus interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce and are unfair labor
practices affecting commerce within the meaning of Section 2 ( 6) and ( 7) of the
Act.
8. The Respondent has not violated the Act by granting increased vacation
benefits to its employees.
THE REMEDY
Having found that the Respondent has engaged in certain acts of interference,
restraint , and coercion of its employees , it will be recommended that it cease and
desist therefrom.
36 Compare Pacific Plastic d Mfg Co , Inc, 68 NLRB 52; Wire Rope Corporation of Amer-
ica, Inc, 62 NLRB 380 , 381-2; Federal -Mogul Corporation, Federal-Mogul Service Division,
76 NLRB 17 ; and Joy Silk Mills v. N L . R. B, supra. at page 739.
87 May Department Stores Company v. N. L R B, 326 U S 376 , 385 ; N. L R. B v.
IV, snona Textile Mills, Inc, 160 F 2d 201, 209 ( C. A 8) ; Eva-Ravi Dress Manufacturing
Company, Inc, et al , 88 NLRB 361 , 362, and Motorola, Inc. 94 NLRB 1163
38 If not used , the sick leave was to be added to the employee ' s vacation,
LEADER NEWS CO., INC. 133;
Having found that the Respondent has refused to bargain collectively with the
Union as the exclusive representative of its employees in the appropriate unit
described above, it will be recommended that it cease and desist therefrom, and
-that, upon request, it bargain collectively with the Union, and if an agreement is
reached embody such understanding in a signed agreement. It will, further be-
.recommended that the Respondent refrain from negotiating directly with its.
employees so long as any labor organization is their bargaining representative by
virtue of Section 9 (a) of the Act.
In my opinion, the Respondent's conduct discloses a fixed purpose to defeat-
self-organization and its objectives. Because of the Respondent's unlawful con-
duct and its underlying purpose, I am convinced that the unfair labor practices
found are persuasively related to other unfair labor practices proscribed by the,
Act, and that the danger of their commission in the future is to be anticipated
from the course of the Respondent's conduct in the past. The preventive pur-
pose of the Act will be thwarted unless the recommendations are coextensive with,
the threat. In order, therefore, to make effective the interdependent guarantees.
of Section 7, to prevent a recurrence of unfair labor practices, and to minimize
strife which burdens and obstructs commerce, and thus to effectuate the policies.
of the Act, it will be recommended that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed by Section 7 of the Act 39
Having found that the Respondent has not violated the Act by granting- in-
creased vacation benefits to its employees, it will be recommended that the;
complaint be dismissed in this respect.
[Recommendations omitted from publication in this volume.],
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor-
Relations Board and in order to effectuate the policies of the National Labor-
Relations Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with economic reprisals if they
join, remain members of, or assist OFFICE EMPLOYES INTERNATIONAL UNION,,
LOCAL 153, AFL, or any other labor organization, or offer or grant our em-
ployees wage increases, sick leave, or any other economic benefit, in order
to induce them to refrain from joining, remaining members of, or assisting
the above-named labor organization, or any other labor organization.
WE WILL NOT negotiate directly with our employees with respect to rates
of pay, hours of employment, and other conditions of employment, so long
as the above-named labor organization, or any other labor organization,
is the bargaining representative of our employees by virtue of Section 9 (a),
of the National Labor Relations Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our-
employees in the exercise of their right to self-organization, to form, join,,
or assist OFFICE EMPLOYES INTERNATIONAL UNION, LOCAL 153, AFL, or any-
other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right 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 National Labor.
Relations Act.
'O N. L R B v Dxpi ess Publishing Co , 312 U. S 426.
998666-vol 98-53-10
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively , upon request, with OFFICE Eillpx,oYEs INTER-
NATIONAL UNION, LOCAL 153, AFL, as the exclusive representative of all our
employees in the bargaining unit described below with respect to grievances,
labor disputes , rates of pay, hours of employment, and other conditions of
employment , and if an understanding is reached , embody such understand-
ing in a signed agreement. The bargaining unit is :
All office , clerical, and shipping employees employed at our Lexington
Avenue plant , excluding all supervisors as defined in the National Labor
Relations Act.
LEADER NEWS CO., INC.,
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.
GENERAL ELECTRIC COMPANY, OPERATING DIVISION, LAMP DEPARTMENT
and LOCAL 707, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND
MACHINE WORKERS, CIO, PETITIONER. Case No. 8-RC-1378.
February 15, 195
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Charles A. Fleming, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. United Electrical, Radio, and Machine Workers of America,
(UE), Local 707, herein called the Intervenor, contends that its ex-
isting contract with the Employer constitutes a bar to this proceeding.
The Petitioner contends that a schism has occurred within the ranks
of the Intervenor affecting the bargaining unit in question, which
removes the contract as a bar to a present determination of represent-
atives. The Employer takes a neutral position.
In May 1950, pursuant to its Decision and Direction of Elections,'
the Board conducted elections, with both the Petitioner and the In-
tervenor appearing on the ballot, inter alia, among the employees
of the Employer in 23 separate bargaining units found appropriate
' General Electric Connpany, 89 NLRB 726.
98 NLRB No. 25.