Little Champ Manufacturers, Inc.

National Labor Relations Board - Board Decisions

May 14, 1953

104 N.L.R.B. 985 (N.L.R.B. 1953)

LITTLE CHAMP MANUFACTURERS. INC. 985
about 1 block from the loading docks and business office, in
areas separated by partitions. However, the Petitioner does
not seek to represent other employees at this same terminal
such as servicemen who wash trucks, grease equipment,
change tires, and pack wheel bearings and progress to
mechanic, third class. Also, although separately classified,
all employees at the terminal, including those requested by
the Petitioner, are utilized to meet other needs of the Em-
ployer. Thus, for example, first-class mechanics, who perform
the most difficult repair work, perform whatever work is on
hand, including the washing of trucks usually performed by
servicemen.
The Petitioner also does not seek to represent the hookup
or dock men at other Texas division terminals in Dallas,
Fort Worth, San Antonio, and Houston.$ These employees
also do some bodywork and painting and spend 2 or 3 hours
daily on other duties usually performed by the mechanics in
El Paso.7 All employees in the Texas division are subject
to the same conditions of employment, enjoy divisionwide
seniority, have the right to transfer between terminals, and
are under the same general overall supervision.
Under all these circumstances, we find that the unit sought
by the Petitioner is too limited in scope to be appropriate for
the purposes of collective bargaining.' We shall therefore dis-
miss the petition.'
ORDER
IT IS HEREBY ORDERED that the petition filed in the instant
case be, and it hereby is, dismissed.
' The Employer has no employees at its Odessa and Abilene terminals as its operations
at these points are limited to dropping freight which is delivered by a local commission
agent.
7 There are no employees in the specific classifications sought by the Petitioner presently
employed in any of the other terminals of the Texas division, although the Employer is
currently making plans to hire full-time mechanics for the Dallas and Fort Worth terminals
and for the Houston and San Antonio terminals.
8Baggett Transportation Company, Inc.. 85 NLRB 1093; cf. Sun Valley Bus Lines, Inc.,
99 NLRB 844.
' In view of our decision herein, we find it unnecessary to rule upon other issues raised by
the Employer in its motions to dismiss.
DANIEL AMINOFF, RUTH AMINOFF, GARY AMINOFF and
MELANIE AMINOFF, a partnership , d. b. a. LITTLE CHAMP
MANUFACTURERS, INC. and LOS ANGELES JOINT BOARD,
AMALGAMATED CLOTHING WORKERS OF AMERICA. Case
No. 21-CA-1522. May 14, 1953
DECISION AND ORDER
On March 17, 1953, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding
104 NLRB No. 130.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent had engaged in and was engagin in cer-
tain unfair labor practices violative of Section 8 (a) (1) of the
Act, 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. The Trial Examiner also
found that the Respondent had not engaged in any unfair labor
practice in violation of Section 8 (a) (5) of the Act, and rec-
ommended dismissal of that allegation of the complaint. There-
after, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Respondent filed a state-
ment in support of the conclusions of the Intermediate Report,
which included certain exceptions. The Respondent's request
for oral argument is denied, as the record, the exceptions,
brief, and the Respondent 's statement , in our opinion, adequately
set forth the issues and the positions of the parties.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case to
a three-member panel [Members Houston, Styles, and
Peterson] .
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
the Respondent's statement, and the entire record in the case,
and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
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 Re-
spondent, Daniel Aminoff, Ruth Aminoff, Gary Aminoff, and
Melanie Aminoff, a partnership, d.b.a. Little Champ Manu-
facturers, Inc., Los Angeles, California, their agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Questioning its employees concerning their. union affilia-
tion or desiree for union representation; initiating, directing, or
participating in a poll of its employees concerning union repre-
sentation; or in any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form labor organiza-
tions, to join or assist Los Angeles Joint Board, Amalgamated
Clothing Workers of America, or any other labor organization, to
t The Trial Examiner , in his findings , and again in his conclusions, found that the Union
was the exclusive bargaining representative of the employees in the unit found appropriate,
on October 1, 1952 , and at all times thereafter. We find merit in the Respondent 's excep-
tion thereto and find only that the Union was the exclusive bargaining representative on
October 1, 1952, and at all tunes material herein.
In the absence of exceptions to the Trial Examiner 's finding that the Respondent engaged
in conduct violative of Section 8 (a) (1) of the Act, we adopt that finding without passing upon
either that result or the Trial Examiner's supporting rationale.
LITTLE CHAMP MANUFACTURERS. INC 987
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purposes of collective bargaining and other mutual aid or pro-
tection, or to refrain from any or all such activities except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Post at its plant in Los Angeles, California, copies of the
notice attached hereto and marked "Appendix."2 Copies of
said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by Re-
spondent's representative, be posted by Respondent immediately
upon receipt thereof and maintained by it for sixty(60)con-
secutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Twenty-first Region
in writing, within ten (10) days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the Respondent violated Section 8 (a) (5) of the Act,
be, and it hereby is, dismissed.
=In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals . Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT question our employees concerning their
union affiliation or desire for union representation, or
initiate, direct, or participate in a poll of our employees
concerning union representation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organiza-
tions, to join or assist Los Angeles Joint Board, Amalga-
mated Clothing Workers of America, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be affected by an agreement requiring membership in a
labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
All our employees are free to become or refrain from be-
coming members of the above-named union, or any other labor
organization, except to the extent that the right to refrain may
be affected by a lawful agreement requiring membership in a
labor organization as a condition of employment.
DANIEL AMINOFF, RUTH AMINOFF, GARY
AMINOFF and MELANIE AMINOFF, a part-
nership, d.b.a. LITTLE CHAMP MANUFAC-
TURERS, 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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE'
A charge and amended charge having been duly filed by the Union; a complaint and notice of
hearing thereon having been issued and served by the General Counsel; and an answer having
been filed by Respondent , a hearing involving allegations of unfair labor practices in violation
of the Act was held upon due notice at Los Angeles, California , on February 16 and 17, 1953,
before the undersigned Trial Examiner . The allegations , in substance , are that on October 1,
1952, and thereafter , the Respondent , in violation of Section 8 (a) (1) and 8 (a) (5) of the Act,
refused to bargain with the Union, the duly authorized bargaining representative of its em-
ployees in an appropriate unit ; and in violation of Section 8 (a) (1) of the Act directed and
participated in a polling of its employees regarding their position on representation by the
Union. The Respondent in its answer denied the commission of any of the alleged unfair labor
practices . All parties were represented at thehearingand were afforded full opportunity to be
heard , to examine and cross -examine witnesses , to introduce evidence on the issues , to argue
orally upon the record , and to file briefs and/or proposed findings and conclusions. There
wad oral argument and the Respondent filed a brief . Motions for the dismissal of the complaint
in whole or in part , upon which ruling was reserved at the hearing, are disposed of by the
findings below.
Upon the entire record in the case and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Upon stipulated facts I find that Respondent is engaged in the manufacture , sale, and dis-
tribution of boy' s shirts at a plant owned and operated by it in the city of Los Angeles, Cali-
fornia , and that Respondent distributes in commerce from its place of business in Los Angeles,
i Daniel Aminoff, Ruth Aminoff, Gary Aminoff and Melanie Aminoff, a partnership , d.b.a.
Little Champ Manufacturers , Inc., is called herein Respondent ; Los Angeles Joint Board,
Amalgamated Clothing Workers of America , the Union; the National Labor Relations Board,
the Board; the General Counsel and his representative at the hearing , the General Counsel;
and the National Labor Relations Act, 61 Stat . 139, the Act.
LITTLE CHAMP MANUFACTURERS, INC. 989
into and through States other than California , more than $ 100,000 in value of its manufactured
products.
IL THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 , subsection (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Character and scope of the issues
In September 1952 the Union filed a petition for certification with the Board and shortly
thereafter the Respondent ' s consent to an election was sought by the Board ' s agents. It is
alleged that following this request Respondent caused a poll to be taken among its employees
in the unit in which an election was sought and that by this act the Respondent engaged in inde-
pendent violation of Section 8 (a) (1) of the Act. Following the poll , the Union withdrew its
petition for certification and on October 1 requested , in writing , that Respondent recognize
and bargain with the Union , and offered to submit authorization cards as proof of its majority.
Meetings between Respondent and union representatives occurred in November and December
but no progress was made toward the execution of a bargaining agreement. It is alleged that
Respondent refused to bargain in violation of Section 8 (a) (5) of the Act.
B. Interference, restraint, coercion
It is not denied that the poll was taken and that it was taken in Respondent's plant during
working hours. All employees in the unit the Union sought to represent , five in number, par-
ticipated in the poll. Daniel Amtnoff, Respondent ' s president , testified that on being requested
to consent to an election , he talked to employees Sanchez and Calva, saying to the former,
"Do you boys want the union?" and to the latter, "Henry , this election is coming up. So far
as I am concerned , I don 't care whether you join the union or not, but if you boys want it--
whatever you boys want I am for ." According to Aminoff , Calva replied , "Mr. Aminoff, let's
ask them what their wishes are. Let ' s get all the boys together ." Aminoff then absented him-
self from the group and two polls were taken by the employees indicating on slips of paper
whether or not they wanted the Union . These slips were collected after they had been placed in
a box , by Fred Mazzete , foreman of the cutting department . In the first poll a janitor voted
and Aminoff , after talking to his attorney, advised the employees that they would have to vote
again, excluding the janitor . The result of the second poll , as announced by Amtnoff, was 1 for,
4 against , union representation . There is no representation 'that the ballots were not correctly
tabulated.
Calva testified that Aminoff asked the employees how they felt about the Union and that
"nobody wanted to say nothing" in his presence, and so he , Calva , suggested a secret poll.
Calva ' s testimony is fully credited
It is Respondent ' s position that it neither initiated , directed , nor participated in the poll,
but this position is hardly tenable. Calva suggested the poll but not until Aminoff had questioned
the employees concerning their position on union representation . If Aminoff had not raised
this question the poll would not have been taken . It is obvious therefrom that Respondent
initiated the entire matter by Aminoff ' s interrogation of employees . It is equally clear that
Respondent supervised the taking of the poll , for its foreman , Mazzete , collected and tabulated
the ballots and Aminoff himself directed that a second poll be taken when advised by his
attorney that the janitor was not included in the unit covered by the Union ' s petition. There
is no evidence , however, that the Respondent sought to influence the manner in which the em-
ployees voted or gave any indication of approval or disapproval of union affiliation . The evi-
dence is to the contrary because it was Aminoff s undisputed testimony that he expressed his
indifference as to the outcome and informed the employees that he would support their de-
cision in the matter . It is also undisputed that neither Aminoff , Mazzete , nor any other su-
pervisory official was present at the time the employees made out their ballots and placed
them in a box . Aminoff testified that the purpose of his interrogation was to determine whether
he should consent to an election , but the balloting was not on whether the employees wanted an
election but whether they desired union representation , and it is a fair inference that it was
information concerning the latter proposition that Aminoff primarily sought.
The General Counsel argues that the taking of the poll is not properly viewed as an isolated
incident but as an integral part of a course of conduct designed to interfere with , restrain,
and coerce employees in the exercise of their rights of self-organization , and in support of
this argument he cites several charges filed against this Respondent prior to the period
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covered by the complaint , all of which resulted in informal settlements . I do not believe this
position to be well taken where there is no allegation that the settlement agreements were
violated . The General Counsel also argued that because of these prior charges and the settle-
ments which disposed of them informally , the Respondent well knew that its taking of a poll
was unlawful , but the Respondent ' s knowledge of wrongdoing or its lack does not appear to me
to be pertinent to the issue of whether or not the taking of the poll was actually unlawful. The
only act subsequent to the poll alleged to be unlawful is the alleged refusal to bargain and,
assuming, arguendo , that it is sustained , in my opinion it can have no bearing on whether or
not the taking of the poll was unlawful.
I find that the taking of the poll and the Interrogations accompanying it were not a part of a
general course of conduct and under the facts of this case constituted a single isolated incident
which, nevertheless , interfered with , restrained , and coerced employees within the meaning
of Section 8 (a) (1) of the Act. This was no interrogation by a minor supervisor but by Re-
spondent ' s president , and the measure of the restraint that it imposed on the employees is
shown by their reluctance to answer orally . The answer they did give lacks the element of
voluntariness and is indicative merely of a less painful alternative than exposing openly and
individually their position relative to union representation . Even here they can hardly have
lacked qualms concerning exposure for there were only five to vote and their ballots were
opened and tabulated by their foreman .
2 Under the circumstances of this case it would seem
that if Respondent 's conduct be held not violative of the Act there is very little vitality left in
the Board ' s Standard- Coosa-Thatcher doctrine (85 NLRB 1358).
G. The refusal to bargain
1. The appropriate unit
It is alleged that cutters and spreaders constitute an appropriate unit . These are highly
skilled and to some degree complementary jobs . The work is concentrated in 1 area of the
plant and the cutters and spreaders accomplish all the essential functions of their jobs in this
1 area . There is nointerchangeof cutters and spreaders with employees of other departments.
As of October 1, 1952 , there were 5 cutters and spreaders in Respondent ' s employ . Also em-
ployed in the cutting department were 4 employees designated as "bundle girls." The General
Counsel would exclude these 4 from the unit . All 9 employees work under the supervision of a
single foreman who , being a supervisor within the meaning of the Act, is excluded from the
unit . Except for common supervision and the fact that they handle work done by the cutters
and spreaders , there does not appear to be a community of Interests that would require all
bundle girls to be included in the appropriate unit . Clearly, they are not possessed of the skills
required for cutters and spreaders and are not in training for possible later qualification for
the latter jobs . The Union ' s organizational structure would include them in a plantwide unit
but not in the smaller unit here sought . I find, contrary to the position of the Respondent, and
in the words of the complaint:
All cutters and spreaders , excluding supervisory employees as defined by the Act, clerical
employees, guards and watchmen and all other employees, constitute a unit appropriate
for the purposes of collective bargaining. A
2. The Union ' s majority in an appropriate unit
The five employees in the unit found to be appropriate are Louis Cavanaugh, Joe Sanchez.
Henry Calva,_Henry Acosta, and Federico Garcia.
The General Counsel introduced in evidence authorization cards bearing the names or
signatures of Sanchez, Calva, Acosta, and Garcia.
II have noted that in a very recent decision an 8 (a) (1) violation , found by both the Board
and the Trial Examiner , was considered insufficient by the former to require a remedial
order . The violation consisted of a statement by a foreman to the effect that his employer
had threatened to close or move its plant if the union won a bargaining election . Gillcraft
Furniture Company, 103 NLRB 81. This decision implies that we must weigh, quantitatively
and qualitatively , each violation found to determine whether it has sufficient weight to justify
a remedial order. I would think that a threat to close a plant is by its nature more coercive
than mere interrogation of employees but until there has been a little more light shed on the
subject will make the customary recommendations as to remedy.
$Rothschild- Kaufman Co ., Inc., 98 NLRB 353; Sir James , Inc., 97 NLRB 1572.
LITTLE CHAMP MANUFACTURERS, INC. 991
Sanchez ' card is dated August 28, 1950. more than 2 years before the request for bargaining
was made by the Union . He testified that he placed his name on the card upon the representa-
tion that it would not bind him beyond 6 months from the date of signing . There is no evidence
to the contrary and there was nothing in Sanchez' demeanor to indicate to me that he was testi-
fying untruthfully.
Calva's card bore the date of May 20, 1952 . It is clear from his testimony that he knew when
he signed the card that he was authorizing the Union to represent him and that he did not
thereafter revoke the authorization thus given.
Garcia testified that he placed his name but not his signature on the card and that he knew
that the person soliciting him to sign the card represented the Union. He made a distinction
between writing his name and his signature on the card , and testified that he placed his name
on it upon the representation that his name and address were needed in order that he receive
notice of union meetings . Bernard Bronley, organizer for the Union, testified that he asked
Garcia to sign the card after explaining to him the benefits of union representation . I am con-
vinced that when Garcia placed his name on the union card he intended to and did authorize the
Union to represent him.
Acosta placed his signature on a card dated April 22, 1952 . He testified that he could read
very little English ; that he knew neither the person who solicited him to sign the card nor
whom he represented ; and that he did not know what the card was for . John Dial, an organizer
for the Union, testified that Acosta signed the card after he, Dial , had explained that he was
from the Union and was trying to organize "the shop." Dial testified concerning his meeting
with Acosta:
We had quite a chat that day about the union , and he told me he was very much dissatis-
fied in the shop , he would like to improve his condition . So I explained briefly outside the
shop how it could be done . I gave him the card and he signed the card and gave it back to
me.
Dial testified that he had further contact with Acosta thereafter and that the Iatter cooperated
with him in gettinginformationonpersonnelinhis department . It is also undisputed that Acosta
attended a meeting of other employees of his department with union representatives in late
August . Clearly , his testimony feigning ignorance of the Union 's organizational campaign and
the circumstances under which an authorization card was presented him to sign is unworthy
of credit . I find that he intended to and did authorize the Union to represent him.
On the basis of the foregoing findings of fact I conclude that the Union had valid authoriza-
tion cards from 3 of the 5 employees in the unit found to be appropriate , on October 1, 1952,
the date on which it requested recognition as bargaining representative , and accordingly was
on that date and thereafter the duly designated and exclusive bargaining representative of
employees in the appropriate unit for purposes of collective bargaining . Consolidated Machine
Tool Corporation , 67 NLRB 737; The Nubone Company , Inc., 62 NLRB 322; N . L. R. B. v.
Sunshine Mining Company, 110 F. 2d 780 (C. A. 9); I. Spiewak and Sons, 71 NLRB 770, 792,
enfd . in pertinent part , 179 F . 2d 695 (C. A. 3); E . H. Sargent and Co., 99 NLRB 1318.
3. The alleged refusal
Four witnesses testified on Respondent's alleged refusal to recognize and bargain with the
Union: Respondent 's president , Aminoff, and attorney . Leonard Low; and.Union's repre-
sentatives , Griselda Kuhlman and Jerome Posner.
The Union's request for recognition and bargaining was made by letter to Respondent
dated October 1, 1952 . On October 16, the Union addressed a second letter to Respondent
stating that it had had no response to its earlier communication and repeating its recognition
and bargaining demands . By letter dated October 17, Respondent 's president , Aminoff, replied-
I was very surprised to get your letter of October 16, informing us that you had not
heard from us. My attorney talked to you last week regarding the letter we received from
you, and your suggestion to him was that you will wait for the out-come of the National
Labor Board decision.
I have on hand your registered letter stating that you would like to sit down with us and
discuss the matter. We are willing , at any time , at any day, at any hour , to sit down with
you and discuss this matter further . I would be glad to have my attorney with me at any
time which is convenient for you.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about November 6 representatives of the respondent and the Union met in Posner's
office. The meeting was attended by Aminoff, Low, Kuhlman, and Posner. Kuhlman testified
concerning this meeting:
Well, I think Mr . Posner opened the discussion and he said that he would like to settle
any problems with the Little Champ [Respondent] as peacefully as it could be done without
any charges or without any picket lines, and that the reason we were together that day, to
see if we could work out anything in regard to the petition that we had filed and the unfair
labor practice charge that we had filed.
And I think that Mr . Low spoke for the company and he said that he was surprised that
we had filed any petition for the cutters and the spreaders because in any previous
conversation we had always talked in Perms of the entire shop , and then we had filed a
petition for a particular unit.
Further according to Kuhlman , Posner admitted that previous discussions had been in terms
of the entire shop but "never amounted to anything" so the Union had decided to concentrate
on a single department . To Low's rejoinder that he would never agree to a unit restricted
to cutters and spreaders , because "he thought it was poor Labor policy and very unhealthy,"
Posner referred to a Board decision (Taylored Slacks, 98 NLRB 353) finding a cutters' unit
to be appropriate.
Low testified that prior to the Union's action in filing a petition for certification as bar-
gaining representative of cutters and spreaders solely, there had been an extended period
of negotiations between Respondent and Union in terms of a plantwide unit . "At all times
during these negotiations ," he testified, "the attitude was the entire unit or nothing. We even
discussed at various times possible ways of modifying the terms of the contract [the Union's
standard contract ] or possibly signing the contract or extending the period or postponing the
period , at which the contract would be entered into effect , or various other modifications.
But at no time was there any discussion whatsoever of any unit other than the entire plant
operating unit." The testimony of the Union's representatives on the whole corroborates
Low's testimony that prior to the filing of the petition discussions were on the basis of a
plantwide unit, and I find the testimony completely credible.
According to Low, discussion at the November 6 meeting centered on the appropriateness
of the unit and Respondent ' s consent to an election in the unit claimed by the Union , and this
is in accord with the union representatives ' version of the same meeting . It is also clear
that at this meeting the Respondent reiterated its opposition to the smaller unit and its
refusal to consent to an election restricted to it. Low's own testimony credibly summarizes
the discussion:
At the November 6th meeting at Mr . Posner's office the discussion was still in the
terms of a contract for the entire plant, and at that time had Mr. Aminoff agreed to take
a contract for the entire plant the question of appropriateness of this particular unit
would not have come up. Of course , the union would not have said , "We can only take it
as to this unit."
Various other discussions came up at this meeting in terms of consenting to the elec-
tion fqr this and we made our position quite clear that we felt this was not an appropriate
unit . We gave at that time and in other telephone conversations a positive statement, "We
will consent to an election for the entire plant and consent to an election for the cutting
department." Both alternatives were rejected by Mr . Posner on behalf of the union.
At that point we, of course , would not consent to the election for the cutters and
spreaders only, of course , because of our expressed position this was an inappropriate
unit and would not, pending the determination of this particular problem of the appro-
priateness of this unit , sign a contract solely for the unit. We were interested in develop-
ing an entire labor peace and felt the entire plant had been involved in all these dis-
cussions, and that we would continue to discuss the problem of unionizing the entire
plant , signing a contract with the entire plant, because we wanted to handle our labor
relations on a unity basis.
The meeting was concluded when Low suggested that the Union's representative meet at
a later date with Aminoff and explain to him "some of the basic economic facts of unionism"
which might overcome his objection to the Union's contract . It appears , however , that in
making this suggestion he was not in any way receding from his position that discussions
should be in terms of a plantwide unit.
LITTLE CHAMP MANUFACTURERS . INC. 993
The meeting suggested by Low occurred in December and there is no evidence that it was
in any way delayed by action of the Respondent. Attending this meeting were Aminoff, Posner,
and Kuhlman When questioned as to the purpose of this meeting Posner testified, ,The
purpose was about this unit to ask for an election or an agreement for the cutters." Posner
testified that at this meeting Aminoff spoke of his financial difficulties , his intention to dis-
pose of his business , and suggested that further discussions be postponed until June when,
presumably , his difficulties would have been resolved one way or another . Kuhlman's testi-
mony on the meeting was substantially the same. Aminoff testified that he stated that he was
going to New York where he would attempt to sell his business and that he would get in touch
with Posner when he returned . He further testified that after service of the complaint in this
proceeding , he was advised by his attorney not to agree to further meetings unless his
attorney was to be in attendance thereat . Aminoff denied that any "additional ' demand for a
contract was made at the December meeting . There is no evidence that following the Decem-
ber meeting , the Union made any effot to obtain further meetings with the Respondent or
that it relied on Aminoff's proposal that he would get in touch with the Union on his return
from New York. The complaint in this proceeding was issued either before or very shortly
after the December meeting, the compaint being dated December 19.
Conclusions
The issue of the refusal must be decided on the basis of the two conferences which occurred
between the parties . It is clear that the Union 's objective in each of these conferences was to
obtain either a consent election in the unit it claimed to be appropriate , or a contract covering
this unit . I have found that the polling of employees by the Respondent on receipt of the
Union's petition for an election was an unlawful abridgement of the employees ' rights of
self-organization but unaccompanied as it was by threats, I think it raised no such barrier
of restraint that the whole issue of the appropriate unit and the Union ' s majority might not
have been freely and properly determined by a Board -directed election , and the Union's
continued insistence on a consent election, despite the withdrawal of its petition, tends to
support this conclusion . However , the petition was withdrawn and we are now asked to find
that the Respondent unlawfully refused recognition and bargaining rights on the basis of the
unit of cutters and spreaders . I can see no evidence of unlawful refusal in the November 6
conference . Admittedly, until the filing of the September petition discussions between Re-
spondent and union representatives - - and there had been many --all centered on the plantwide
unit . Although the Board 's decision in the Taylored Slacks case (98 NLRB 353) was issued
February 27 , 1952, it was not until September that the Union chose to rely on this decision
in pressing for the smaller unit . Assuming that Respondent is charged with notice of this
decision , it is not so clearly applicable to the situation in Respondent 's plant that no good-
faith doubt as to its applicability could arise . I believe that Respondent's position expressed
through its attorney at the November 6 conference was based on a good-faith doubt of the
appropriateness of a unit composed solely of cutters and spreaders . I see no evidence what-
ever of the rejection of the collective-bargaining principle in the meeting of November 6, and
Low's proposal of a further meeting in which the Union's representatives would meet alone
with Aminoff and the fact that such further meeting occurred , shows that neither party con-
sidered that an impasse had been reached in the November 6 meeting.
Aminoff s detailing of his financial difficulties in the December conference may be con-
strued as mere stalling but this is not the only reasonable conclusion to be drawn from it.
In the first place , there is no evidence upon which I could properly base a finding that his
representations of financial difficulties were false . In the second place, while financial
difficulties afford no justification for a refusal to recognize and bargain with a duly ac-
credited bargaining representative , they may well influence the course of collective bar-
gaining and may constitute a logical and proper topic for discussion at any bargaining con-
ference . The real issue is whether Aminoff's statements at the December meeting represented
an adamant determination not to negotiate with the Union , not because of a good-faith doubt
as to the appropriateness of the unit , but because of a rejection of the bargaining principle.
Obviously Aminoff was no experienced negotiator; the December meeting was proposed by his
attorney for an informal , nontechnical exchange of viewpoints which might pave the way for
Respondent' s acceptance of the Union's standard contract terms; and it is clear that when Low
proposed the meeting he was still thinking in terms of a plantwide unit . In view of all these
factors I am unable to view the December meeting as dispositive of the issue of good faith.
Had the Union requested a further conference and been refused on grounds other than rejection
of the unit which it deemed to be appropriate, and which Respondent deemed to be inappropri-
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate, or had Aminoff taken an adamant position in the December conference that he would not
negotiate further with the Union because of his financial difficulties , the Issue would be
clearly drawn and the conclusion inevitable . But the Union did not request a further conference
and the evidence will not support a finding that because of financial stress Aminoff was
unwilling to negotiate further. I am unable to find, therefore, on the basis of a predominance
of the evidence considered in its entirety , that the Respondent refused to bargain within the
meaning of the Act.
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 the operations of the Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic , and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
It will be recommended that the Respondent cease and desist from engaging in the unfair
labor practices found herein , and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the above findings of fact and the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. All cutters and spreaders in Respondent 's Los Angeles plant , excluding supervisory
employees as defined in the Act, clerical employees , guards and watchmen, and all other
employees , constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. The Union on October 1, 1952, was , and at all times since has been and now is, the
exclusive representative of employees in such unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not refused to bargain in violation of Section 8 (a) (1) and (5) of
the Act.
[Recommendations omitted from publication.]
HADDOCK - ENGINEERS , LIMITED; BEN C. GERWICK, INC.;
SWINERTON AND WALBERG CO.; TUCKER McCLURE,
INCORPORATED ; d/b/a HADDOCK - ENGINEERS , LIMITED,
AND ASSOCIATES IV, JOINT VENTURERS and WILLIAM
C. TISSUE
OPERATIVE PLASTERERS' AND CEMENT MASONS' INTER-
NATIONAL ASSOCIATION, AFL, LOCAL UNION 797 and
WILLIAM C. TISSUE. Cases Nos . 20-CA-697 and 20-CB-239.
May 15, 1953
DECISION AND ORDER
On February 25, 1953, Trial Examiner David F. Doyle issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondents had engaged in and were engaging
104 NLRB No. 128.