M. Koppel Co.

National Labor Relations Board - Board Decisions

Aug 2, 1967

166 N.L.R.B. 975 (N.L.R.B. 1967)

M. KOPPEL CO.
M. Koppel Company and National Organization of
Industrial Trade Unions . Case 22-CA-2915
August 2, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
On May 26, 1967, Trial Examiner William Sea-
gle issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof I
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the en-
tire record in this case, including the Trial Ex-
aminer's Decision and the Respondent's exceptions
and brief, and hereby adopts the findings,2
conclusions, and recommendations of the Trial Ex-
aminer, as herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, and hereby
orders that the Respondent, M. Koppel Company,
Newark and Westwood, New Jersey, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order, as so modified:
1. Substitute the words "like or related" for the
word "other" in paragraph 1(e) of the Trial Ex-
1 The Respondent's request for oral argument included in its excep-
tions , is hereby denied as, in our opinion , the record, including the excep-
tions and brief, adequately present the issues and positions of the parties.
The Respondent's Motion to Reopen the Record, filed separately, is
also hereby denied. The additional evidence which the Respondent seeks
to introduce is, by its own admission, cumulative, and, in any event, it has
not shown that such evidence was newly discovered or that the Respond-
ent was denied an opportunity to introduce such evidence at the hearing.
2 The Trial Examiner remarks that the first interrogation by Vice Pres-
dent-Manager Strauss of the sorting-room employees took place before
Strauss had received the Union 's petition. It is not clear that this is so, as
there is a conflict in both the Trial Examiner 's Decision and the record as
to the exact date of that event. We have therefore, for purposes of this
Decision, assumed the facts to be as most favorable to the Respondent;
i.e., that the interrogation took place after receipt of the petition.
975
aminer's Recommended Order.3
2. Substitute the words "on forms provided" for
the words "to be furnished" in paragraph 2(b) of the
Trial Examiner's Recommended Order.
3 The Trial Examiner recommended a "broad" cease-and-desist order.
While his Recommended Order contained a "broad" prohibition, his
Notice did not We do not adopt his recommendation in this regard. In
conforming the Recommended Order to the Notice, we are not persuaded
that the nature of Respondent's unfair labor practices reveals an attitude
of general opposition to the purposes of the Act such as would require a
"broad" order.
TRIAL EXAMINER'S DECISION
WILLIAM SEAGLE, Trial Examiner: Upon a charge filed
on October 13, 1966, and a complaint issued by the Act-
ing Regional Director on November 23, 1966, this case
was heard at Newark, New Jersey, on April 4 and 5,
1967.
It is alleged in the complaint that the Respondent vio-
lated Section 8(a)(1) of the Act by various acts of inter-
ference, restraint, or coercion, including interrogation of
employees, threats of economic reprisals, and the
promise of or the grant of benefits, and also that the
Respondent violated Section 8(a)(5) of the Act by refus-
ing to bargain collectively with the Union upon its
request, although it represented a majority of the Re-
spondent's employees in an appropriate bargaining unit.
Subsequent to the hearing, counsel for the General
Counsel and for the Respondent filed briefs, which have
been duly considered.
Upon the record so made, and in view of my observa-
tion of the demeanor of the witnesses, I hereby make the
following findings of fact:
1. THE RESPONDENT
The Respondent, M. Koppel Company, is and, at all
material times, has been a New Jersey corporation which
maintains its office and plant at 60 Chapel Street,
Newark, New Jersey, and a store at 396 Pascack Road,
Washington Township, Westwood P.O., New Jersey
(hereinafter referred to as the Westwood store), and
which has been engaged at the said plant and store in the
purchase, sale, and distribution to wholesale and retail
purchasers of textile clippings, fabrics, remnants, and re-
lated products.
In the course and conduct of its operations during the
past 12 months, which is a representative period, the
Respondent caused to be sold and distributed to
wholesale purchasers at its said plant and store materials
valued in excess of $50,000, of which goods and materials
valued in excess of $50,000 were shipped from the said
plant and store to wholesale purchasers in interstate com-
merce directly to States of the United States other than
the State of New Jersey.
The Respondent admits that at all material times it has
been an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and I so find.
II. THE LABOR ORGANIZATION INVOLVED
National Organization of Industrial Trade Unions
(hereinafter referred to as the Union) is a labor organizes
166 NLRB No. 114
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion that has sought to represent the production and main-
tenance employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Organizational Background
The Respondent is evidently a family-type corporation,
for its president in Michael Koppel; its secretary-trea-
surer is his wife, Helga Koppel; and its vice president and
manager is Steven S. Strauss, their nephew. The Re-
spondent was formerly located at Passaic, New Jersey,
but moved to its present location in Newark, New Jersey,
after a fire had occurred at the Passaic plant.
At the time of the events involved in the present
proceeding, Michael Koppel, the president of the
Respondent, and Helga Koppel, his wife, were not active-
ly running the business, which they had left in charge of
Steven S. Strauss, their nephew. Michael Koppel had
heart trouble, and, accompanied by his wife, was vaca-
tioning at a health resort in Europe. The Koppels had left
the United States on August 10 or 11, 1966,1 and they
did not return until September 11, which was a Sunday.
On August 18, which was shortly after the Koppels
had left for Europe, Philip Glassman, a union representa-
tive, who was in the neighborhood of the Respondent's
plant and who was engaged at the time in organizational
work, encountered George Thompson, one of the
Respondent's employees, and ascertained that the Kop-
pel employees would be interested in having a union to
represent them. Glassman gave Thompson some union
authorization cards, and between August 18 and 22
seven of the Respondent's employees had signed such
cards.2 Most of the cards were signed at a meeting at-
tended by some of the employees, the meeting being held
at a bar in the neighborhood known as Grace's Bar, or
Gracey's Bar.3
During the week of August 23 there were 12 em-
ployees on the Respondent's payroll4 in the appropriate
bargaining unit, which consists of all production and
maintenance employees employed at the Respondent's
Newark plant and Westwood store, including shipping
and receiving employees, but excluding all office clerical
employees, confidential employees, professional em-
ployees, guards, and all supervisors as defined in the Act.
Under the date of August 23, Louis Lasky, the pres-
ident of the Union, addressed a letter to the Respondent
in which he stated that "a majority of your employees, ex-
cluding office clerical and supervisory employees, has
authorized our union to represent them for the purpose of
collective bargaining," and in which he also requested an
early conference "for the purpose of discussing formal
recognition of the Union and terms of a collective-bar-
gaining agreement."
Under date of August 24, Strauss promptly
acknowledged the receipt of Lasky's letter of August 23
but stated as follows:
Our Mr. Koppel, who is the head of our organiza-
tion, is presently out of town, and shall [sic] not
return until late September, at which time your com-
1 Unless otherwise indicated, all dates hereinafter mentioned should be
understood as falling in 1966.
' The seven employees who signed union authorization cards were
Luther F. Wilson, Arlene Randolph, Louise Phillips, William James Suss-
ko, Theresa Howard, Helen Bankston, and, of course, George Thompson.
munication will be brought to his attention [emphasis
supplied].
B. The Violations of Section 8(a)(1) of the Act
Having refused the Union's demand for recognition,
and declined to meet with it, Strauss lost no time in at-
tempting to undermine it. Either the same day that he
dispatched his reply to the Union's letter, or the next day,
he went into the sorting room of the plant, and inter-
rogated the five girls whom he found there about the sign-
ing of the union authorization cards. The five girls were
Theresa Howard, Louise Phillips, Arlene Randolph,
Helen Dobbins, and Helen Bankston. Each of them was
asked by Strauss individually whether she had signed a
union card. Each of them denied it until Strauss put the
question to Louise Phillips, who admitted it. Strauss then
asked her whether she knew what the small print said,
and when she said that she did not know, he queried:
"You go around signing things you don't know?" Indeed,
throughout the interview, Strauss seems to have been in
a bad temper, denouncing the Union as a fraud, and
behaving as if he knew that the signatures to the union
authorization cards had been obtained by fraud. When
Helen Bankston admitted also that she had signed a card
but stated that her card was at home, Strauss offered:
"Come on, I'll take you home and you give it to me" but
his offer was declined. Arlene Randolph not only ad-
mitted that she had signed a card but also showed it to
Strauss, and even asked him whether the girls were in
trouble for signing the cards. Strauss' reply was that he
did not know and that he would have to get in touch with
his lawyer "to find out what kind of union it was."
Strauss' next step was to get in touch immediately with
his uncle and aunt in Europe. He wrote them a letter in-
forming them of the union threat. Under date of August
29, the Koppels wrote - in longhand - a three-page letter
to their employees. Addressing them as "Dear Em-
ployees," they paid lip-service to their right to join or not
to join a union but sought to dissuade them from disterb-
ing the "harmonious relationship" which existed between
them, and warned them that the upshot of their joining the
Union would be that they would have to give up their
business altogether. After calling the attention of the em-
ployees to their continuation in business despite two
heart attacks -this referred to the heart attacks suffered
by Michael Koppel - and despite "that terrible fire in Pas-
saic," the Koppels declared:
I have been informed, that without realizing what
you signed, the union got a signature from some of
you. This will not be valid and was an unfair act of
the union organizer.
We are only asking for this one favor now: Please do
not vote or sign until we return and have a chance to
sit down together with you and talk this over as
friends. After all this might mean the continuation of
our firm, in other words, will the firm, be able to
remain in business . After all you know that I am a
sick man and surely will not be able to take all this
3 It appears in both guises in the record.
4 These 12 employees were Helen Bankston, Helen Dobbins, Max
Goldman, Ester Goodstein, Betty McCloud, Louise Phillips, Arlene Ran-
dolph, Elsie Strauss, George Thompson, Luther Wilson, Theresa
Howard, and William Sussko
M. KOPPEL CO. 977
excitement, my health would not permit this.
[Emphasis supplied.]
The Koppels concluded their letter by asking the em-
ployees to let Steven-this, of course, referred to
Strauss -send Michael Koppel a telegram assuring them
that they would wait until they returned on September
10. Upon its being received, the Koppels' letter was read
to the employees by one of them, Helen Dobbins. There
is no evidence, however, that any telegram was
dispatched to the Koppels on behalf of the employees giv-
ing the requested assurance, and, evidently, Michael
Koppel became impatient. He finally made a transatlantic
telephone call to his nephew, and on September 8, follow-
ing this telephone conversation, Strauss called into his of-
fice one by one the four girls who had signed union
authorization cards, i.e., Theresa Howard, Arlene Ran-
dolph, Louise Phillips, and Helen Bankston, and told
each of them except Theresa Howard that he was giving
her a 10-cent-an-hour raise , and would also improve her
fringe benefits. Theresa Howard was given only a 5-cent-
an-hour raise because she was already making 5 cents an
hour more than the other girls. The fringe benefits
promised by Strauss were Blue Cross hospitalization in-
surance and a week's vacation with pay after a year's ser-
vice. It appears, moreover, from the testimony of Louise
Phillips and Arlene Randolph, the only two of the girls
who testified about this matter, that the granting of the
raises and the promise of the fringe benefits were accom-
panied by statements of Strauss that he would like to get
the union business settled before his uncle came back, or
by a request not to do anything about the Union until his
uncle came back. Indeed, it would seem that in these in-
terviews Strauss followed pretty much the same line that
his uncle and aunt had employed in their letter to all the
employees. As Louise Phillips testified:
He was talking and he wanted to know, he said we
had been one happy family. He explained, he said,
"You know my uncle is a very sick man. We have
been in business for years," and I told him, "You
see, we didn't sign the card to make it hard for your
uncle or anything like that. We signed it to have
everything better through the union," and he said, "If
that is what you want, I can give you hospitalization
... and not to do anything else until...."
Similarly, Arlene Randolph testified:
He told me that, like I say, he would like to try to
get this settled before his uncle came back and he
was going to give us a dime raise starting that day and
he was going to bring in a Blue Cross man to talk
about that, you know, being covered by Blue Cross
and vacation with pay after a year.
It is clear from the testimony of the General Counsel's
witnesses that the Respondent violated Section 8(a)(1) of
the Act in substantial respects. Strauss, the Respondent's
only witness through whom the violations were com-
mitted, did not deny his interrogation of the employees or
the grant of the wage increases, but he attempted to justi-
fy everything he did by explanations which cannot
possibly be accepted, for they were contradictory,
frequently nonsensical, and sometimes palpably false.
Apart from his explanations, Strauss also offered pleas of
inexperience, immaturity, ignorance (of the law), and lack
of authority to run the business and to do the very things
which, obviously, he was doing, and which he had
authority to do.
Strauss' testimony concerning his interrogation of the
employees is somewhat incoherent but it was in sub-
stance that he was completely surprised by the filing of
the Union's representation petition because Glassman
had assured him even before he had received Lasky's
letter of August 23 that he would take no action until
after his uncle had returned from Europe, and that he
questioned the girls in the sorting room in order to find
out whether they were included in the "factory em-
ployees" to whom there was an alleged reference in the
representation petition and also in order to determine
whether the Union in fact represented a majority of the
employees.
In his departure from reality Strauss' testimony con-
cerning his interrogation of the employees is typical of his
testimony as a whole . In the first place , the interrogation
took place before he had even received the petition, for it
could not have been received by him until after he had
received Lasky's letter of August 23 and replied to the
letter on August 24. In the second place, it is impossible
to believe that he had received any assurances from
Glassman that no further action would be taken by the
Union before the return of his uncle from Europe because
if he had in fact obtained such an assurance, he would
have accused the Union, in replying to its letter of August
23, of a breach of faith in failing to honor the supposed as-
surance. In the third place, the testimony of the girls who
were interrogated shows that Strauss questioned them
about their signing of the union authorization cards rather
than about a representation petition. Finally, although he
claimed to be satisfying his curiosity in questioning the
employees about the representation petition, when he had
received Lasky's letter of August 23, he had not in reply-
ing to it manifested the slightest curiosity either as to
what the Union meant by "a majority of your employees"
or as to whether it in fact represented a majority of the
employees.
The tactic he had decided on was to play for delay, to
try to hold the Union off at least until his uncle should
return from Europe. Once having made this decision,
there was no longer any conceivably legitimate reason for
questioning any of the employees about their signing of
union authorization cards. Once the petition had been
filed, there was equally no conceivably legitimate reason
for questioning any of the employees, for all the questions
which were, supposedly, puzzling him would have been
decided in the representation proceeding initiated by the
filing of the petition . It seems hardly necessary to point
out, moreover, that the obviously uneducated factory
girls were the last persons in the world who could have
explained to the educated Strauss the scope of the bar-
gaining unit sought by the Union.
It is apparent that the actual purpose of the interroga-
tion of the girls by Strauss was to intimidate them and to
frighten them into withdrawing their support from the
Union. All the circumstances of the interrogation were
plainly coercive. Strauss, in his approach to the girls,
manifested anger rather than the spirit of inquiry, and by
making unfounded accusations of fraud against the Union
and stupidity on the part of the girls, he was hardly giving
them assurances against reprisals . Indeed, when asked
for such an assurance, Strauss declined to give it until he
had consulted a lawyer.
I also cannot regard the Koppel letter of August 29 as
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an exercise of the privilege of free speech, although this
is claimed for it. If there were nothing more in the case
than the letter itself, there might be some room for argu-
ment . But the letter was preceded by the coercive inter-
rogation of the employees, in which they were upbraided
for joining the Union, and the letter from the Koppels
plainly indicated that they shared Strauss' view that the
employees had been deceived by the union organizer, and
that they, too, would regard as invalid the union
authorization cards which they had signed. Under these
circumstances, the employees could only regard as a
threat the further intimation that Michael Koppel would
be forced to discontinue the business to preserve his
health. The fact that he actually had severe heart disease
made the threat more credible and its execution more im-
minent.
Strauss was no more successful in attempting to justify
the pay raises and the promises of other benefits than in
attempting to justify his interrogation of the employees.
The evidence shows that back in July 1966 four of the
girls, who had been hired after the plant moved to
Newark, had demanded a 10-cent-an-hour raise. Michael
Koppel had refused to give them any raise, and they had
threatened a walkout. He had then given them a 5-cent-
an-hour raise and promised them another 5-cent-an-hour
raise some time later. In giving them, except for Theresa
Howard, a raise of 10 cents an hour, Strauss obviously
had exceeded the raise that had been promised to them by
his uncle, and he was not, therefore, merely implementing
his uncle's promise. Similarly, the evidence shows that
there had been some talk about hospitalization insurance
while the Koppels were located in Passaic but nothing
had come of it because the Koppels then had too few em-
ployees, apparently, to meet Blue Cross coverage
requirements. The girls to whom hospitalization insur-
ance was promised in September 1966 were hired after
the move to Newark, and they knew nothing, of course,
about the abortive Blue Cross inquiry in Passaic.
In contending that he was merely carrying out previous
promises when he gave the girls raises and promised them
other benefits in September 1966, Strauss involved him-
self in particularly absurd contradictions. He performed
the feats of testifying that it had always been the practice
of the Koppels of giving raises of 10 cents an hour,
although he also testified that his uncle had told him that
he had given the girls 5 cents an hour in July 1966, and he
himself had given Theresa Howard only a 5-cent-an-hour
raise in September 1966; that raises were always given on
the basis of individual merit, although in September 1966
they were given to all four of the girls who had signed
union authorization cards; that he had no authority to
give raises on his own, although his uncle in the transat-
lantic telephone conversation had not told him how much
of a raise to give the girls, and he, therefore, had to make
the decision on the amounts of the raises, that in giving
the four girls the raises he was only carrying out his un-
cle's promise to them, although he also testified that he
did not learn what raises his uncle had promised the girls
until after the charges in the present case had been in-
vestigated. These extraordinary efforts must be regarded,
alas, as wholly wasted, for the credible evidence
establishes that the raises were given and the other
benefits were promised explicitly as substitutes for what
the employees hoped to obtain through the Union.
C The Violation of Section 8(a)(5 of the Act
It is evident from the testimony of the employees who
signed union authorization cards and who were witnesses
at the hearing, i.e., Theresa Howard, William Sussko,
George Thompson, Louise Phillips, and Arlene Ran-
dolph, that they were in no way deceived, but knew per-
fectly well that they were signing union authorization
cards which would enable the Union to represent them.
Although Helen Bankston and Luther Wilson were not
witnesses at the hearing, Glassman testified that both of
them were present at the organizational meeting of Au-
gust 22, at which most of the union authorization cards
were signed, and that the card of Luther Wilson was
signed in his presence at this meeting. The card of Helen
Bankston was signed on August 22 and was mailed to the
Union, which had possession of it when the Union's letter
of August 23 was written to the respondent, and the
Respondent stipulated at the hearing that Helen Bank-
ston had signed her card.
In the course of his testimony Strauss related, to be
sure, that on August 26 he had had a conversation with
Luther Wilson who told him that he had signed his
authorization card just to be one of the gang, and because
all the other employees had told him that the card was
"just an address card." The Respondent did not produce
Luther Wilson as a witness, and considering the character
of Strauss as a witness, I do not accept his uncor-
roborated testimony concerning his alleged conversation
with Luther Wilson. But even if I were to accept Strauss'
testimony it would not serve to invalidate Luther Wil-
son's card. It would not be evidence of misrepresentation
but would merely establish that the motive which led him
to sign his card was an example of the familiar bandwagon
psychology which frequently obtains in union organizing
campaigns. As for Wilson's union authorization card
being just an address card, there is even greater reason to
doubt that he told that to Strauss. In any event, if he did,
it was the literal truth, for each card bore in print on its
revei se side the Union's address, to make it convenient
for the signer to mail it in to the Union.
The validity of the union cards is also attacked in
general because each card bore the legend: "All informa-
tion will be held strictly confidential." I fail to perceive
how this legend produced any infirmity in the cards. They
were union membership application cards, as well as
cards expressly authorizing the Union to represent the
signer and to bargain on his or her behalf with the em-
ployer. The legend only expressed what is common prac-
tice among labor organizations who attempt to keep infor-
mation received in connection with membership applica-
tions or authorization cards as confidential as possible,
and who, as a rule, seek to exhibit such cards only to
neutral third parties. The legend was not a promise that
the Union would never show the cards to anyone.
Literally, the card only contained a promise that the
information would be kept strictly confidential. The card
itself was, obviously, not secret because it was an open
card designed to be sent through the mails.5 But even if
the legend on the cards must be construed as going
beyond this they would still be valid.6
5 See the comment of the court in N L R B v Hobart Brothers Com-
pany, 372 F.2d 203, at 205
B See, for instance, Consolidated Rendering Company, d/b/a Burling-
ton Rendering Company, 161 NLRB 1, 12
M. KOPPEL CO. 979
Since during the week of August 22 there were 12 em-
ployees on the Respondent's payroll in the appropriate
bargaining unit, and the Union had 7 validly signed union
authorization cards, it had a clear majority unless for
some other reason any of the card signers must be
disqualified. The eligibility of Theresa Howard and Wil-
liam Sussko is challenged on the ground that when they
signed their cards they were temporary employees. But
this contention is based on the testimony of Strauss, and
I reject it, for it is even more incredible than the rest of his
testimony.
Theresa Howard was employed by the Respondent in
January 1966, and she left voluntarily on September 9.
She became pregnant in July but she planned to continue
to work until December. When she left on September 9,
however, her pregnancy had nothing to do with her depar-
ture. The reason was that she had a crippled child who
was on crutches and who had to be taken to a therapist
three times a week. When Michael Koppel would not let
her come in later than usual, she had no alternative but to
quit.
Strauss testified that he regarded Theresa Howard as
a temporary employee from the time that he learned that
she would be leaving because of her pregnancy,7 and in
his direct testimony he fixed the time of his obtaining this
knowledge as "early July." If this were indeed true, he
would have learned of her pregnancy almost before she
did, and perhaps this explains why he changed his
testimony on cross-examination to "late July." In fact
Strauss did not know that Theresa Howard was pregnant
until the time that she quit on September 9, for he
testified in the representation proceeding initiated by the
Union after its request for recognition had been denied
that at this time "her pregnancy hadn't taken that state
where you could tell."8 Indeed, if Strauss had known
about her pregnancy on September 8, and expected her
to quit her employment for this reason, he would hardly
have given her even a nickle raise on September 8.
Although Theresa Howard was planning to quit work in
December, the Board has held it to be immaterial that an
employee intends to quit after an election and sub-
sequently carries out the intention.9
So far as William Sussko is concerned, he started to
work for the Respondent in July 1966 and quit of his own
accord on September 16. On his direct examination,
Strauss testified both that Sussko was hired on a trial or
probationary basis, and also that he was hired to work
during the busy cutting season that extended from July
into October, although it was not he who had hired Suss-
ko but his uncle. Strauss also testified that Sussko's work
proved unsatisfactory, but since he had no authority to
terminate Sussko's employment, he intended to discuss
the matter with his uncle when he returned from Europe.
Before he could so so, Sussko quit. But, if, in fact, Sussko
was a probationary employee and his work was so un-
satisfactory, it is difficult to understand why Michael
Koppel had not discharged him during the considerable
time that elapsed between his hiring and his own depar-
ture for Europe, or during the 5-day period between
Michael Koppel's return from Europe and the day that
Sussko quit his employment. I regard Sussko's "proba-
tionary" or "busy season" status -two ideas that are in
themselves contradictory -as only another one of
Strauss' uninspired inventions. The fact is that, every
eligibility list submitted to the Board's Regional Office in
connection with the representation proceeding includes
the name of William Sussko. The last of such lists was
transmitted with a covering letter dated October 10,
1966, in which it was stated that Sussko was no longer
with the Respondent, "due to the fact that he has not
shown up for work since September 16, 1966." It is not
mentioned in this letter, of course, that Sussko was hired
as a probationary employee, or only for the busy season.
I conclude, therefore, that when the Union requested
in its letter of August 23 recognition and bargaining
because it represented a majority of the Respondent's
employees it did in fact represent 7 of the 12 employees
in the appropriate bargaining unit, or a clear majority of
the employees in the bargaining unit. I also conclude that
Strauss' refusal to accord such recognition pending the
return of his uncle from Europe in "late September" was
not motivated by a good-faith doubt that the Union
represented a majority of the employees but by opposi-
tion to the principle of collective bargaining itself and the
desire to gain as much time as possible10 to undermine the
Union by unfair labor practices designed to destroy its
majority.
Counsel for the Respondent now argues that it cannot
be found guilty of violating Section 8(a)(5) of the Act
because the Union never made a proper request in its
letter of August 23 for recognition and collective bargain-
ing, failed to define the bargaining unit, and in filing the
representation petition, which it subsequently withdrew,
sought to exclude from the bargaining the two employees
at the Westwood store. It seems to me plain, however,
that the Union's letter of August 23 did contain a plain
request for recognition and collective bargaining and that,
while the Union did not precisely define the bargaining
unit, the language used was broad enough to include not
only the plant employees but also the two Westwood
store employees, in which unit the union did in fact have
a majority. Since all the card signers were Newark plant
employees, the Union did have a majority in either of the
alternative units. In any event, the contentions now ad-
vanced are only the afterthoughts of counsel. In rejecting
the Union's request for recognition and bargaining the
respondent did not do so on any of these grounds, but
merely sought delay.
Since the Union in fact had a majority in the ap-
propriate bargaining unit, the Respondent violated Sec-
tion 8(a)(5) of the Act by insisting on an election and em-
ploying the time thus gained to dissipate the Union's
7 "As soon as an employee is pregnant," Strauss declared, "they are
temporary."
8 The hearing in the representation proceeding was held on September
14, 1966.
9 See Personal Products Corporation, 114 NLRB 959, 961, and Ely &
Walker, 151 NLRB 636, 654.
10 In attempting to explain why he had stated in his letter of August 24
to the Union that his uncle would not return from Europe until late in Sep-
tember, although he actually had returned much earlier, Strauss testified
that his uncle returned earlier than he had intended because he felt better.
I find it difficult to accept even this testimony because the Koppels in their
letter of August 29, written only 5 days after Strauss' letter of August 24,
gave the date of their return as September 10. This leads me to conclude
that the Koppels had planned before they left to return when they actually
did return They continued to play for delay after the present proceeding
was commenced by repeatedly applying for and obtaining through their
counsel adjournments of the hearing for a period totaling more than 4
months on the ground of Michael Koppel's ill health, although he was not
a necessary witness.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority . However , even if there can be said to be a
technical flaw in the Union's request that would prevent
a finding of an 8(a)(5) violation , it has long been settled
that this would not afford a basis for withholding a bar-
gaining order. A bargaining order has been held to be ap-
propriate where a majority of the employees have duly
authorized the union to represent them , and the evidence
shows that the employer has engaged in 8(a)( 1) violations
calculated to undermine the union 's majority. 't
As is usual in cases of this sort counsel for the Re-
spondent relies on N.L.R.B. v. Flomatic Corporation,
347 F.2d 74 (C.A. 2), which was decided by a divided
court, and in which the majority refused to enforce the
Board 's bargaining order on the ground that the 8(a)(1)
violations were de minimis . This decision has no appli-
cation, however, in the circumstances of the present
case which include substantial violations . Moreover,
the Second Circuit itself has confined Flomatic to its
precise facts , and pointed out that in this case there
was no demand and refusal to bargain.''-' Furthermore,
the Flomatic decision has been explicitly repudiated in
United Steelworkers, AFL-CIO [Northwest Engineering
Co.] v. N.L.R.B., 376 F.2d 770, (C.A. D.C.), and has not
been followed in other circuits or in Board decisions.13
IV. THE REMEDY
In view of the serious nature of the Respondent 's unfair
labor practices , I shall recommend a broad form of cease-
and-desist order restraining the Respondent•from infring-
ing on any of the rights guaranteed to employees by Sec-
tion 7 of the Act.
By way of affirmative relief , I shall recommend that the
Respondent be directed , upon request of the Union, to
bargain collectively with it as the exclusive representative
of the respondent's employees in the appropriate bargain-
ing unit and embody in a signed agreement any un-
derstanding which may be reached.
CONCLUSIONS OF LAW
1. The Respondent, M. Koppel Company , is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union , National Organization of Industrial
Trade Unions, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating its employees; by
threatening to go out of business if the employees sup-
ported the Union ; by granting some of its employees
wage increases and promising them other benefits, in
order to induce them to refrain from supporting the
Union , the Respondent interfered with , restrained, and
coerced its employees in the rights guaranteed to them in
Section 7 of the Act , and thereby committed unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(1) of the Act.
4. All the production and maintenance employees at
the Respondent 's Newark, New Jersey, plant and West-
wood , New Jersey, store , including shipping and receiv-
ing employees, but excluding all office clerical em-
ployees , confidential employees , professional employees,
guards , and all supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
5. At all times since August 22, 1966, the Union has
been the representative for the purposes of collective bar-
gaining of a majority of the employees in the appropriate
bargaining unit , as aforesaid , and, by virtue of Section
9(a) of the Act, has been and is now the exclusive
representative of all the employees in the said unit for the
purposes of collective bargaining in respect to rates of
pay, wages , hours of employment , or other terms and
conditions of employment.
6. On August 23, the Union requested the Respond-
ent to bargain collectively with it as the exclusive
representative of all the employees in the appropriate
unit , as aforesaid , with respect to rates of pay, wages,
hours of employment , or other terms and conditions of
employment.
7. By refusing at all times since August 24, 1966, to
bargain with the Union collectively as the exclusive
representative of all the employees in the appropriate bar-
gaining unit , as aforesaid , in order to undermine the
Union and to destroy its majority status, the Respondent
has committed unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record of this case , and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I recommend that the Respondent , M. Koppel
Company, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating its employees coercively concerning
their union sympathies and activities.
(b) Threatening their employees with economic
reprisals , including loss of employment , because of their
support of the Union.
(c) Granting its employees wage increases or promis-
ing its employees economic benefits in order to induce
them to refrain from supporting the Union.
(d) Refusing to bargain collectively with the Union
with respect to rates of pay, wages, hours of employment,
or other terms and conditions of employment.
(e) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action in order to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union
as the exclusive representative of the employees in the
bargaining unit hereinbefore described as appropriate
with respect to rates of pay, wages, hours of employment,
11 See, for instance , D H Holmes Company, Ltd. v. N.L.R.B., 179
F.2d 876 (C.A. 5); N.L.R.B. v. Joe and Mike Caldarera, dlbla Falstaff
Distributing Company 209 F 2d 265 (C.A. 8); Editorial "El Impartial"
Inc. v N.L.R.B, 278 F.2d 184, 187 (C.A. 1); Piasecki Aircraft Corpora-
tion v . N L.R.B., 280 F.2d 575 (C A. 3); Teamsters Local 152 v.
N.L.R.B. 343 F.2d 307, 309 (C.A D.C.); N L.R.B. v. Delight Bakery,
Inc., 353 F.2d 344 (C.A. 6)
12 See Irving Air Chute Co. v. N.L.R.B., 350 F .2d 176, 182 (C A. 2);
and N.L R.B v. Gotham Shoe Mfg. Co., 359 F 2d 684,687 (C.A. 2).
'3 See Engineers & Fabricators, Inc., 156 NLRB 919, 935, in. 16;
Sheboygan Sausage Company, Inc., 156 NLRB 1490, 1517 , fn. 66,
Copeland Oil Co, Inc., 157 NLRB 126, 136; Dayco Corporation, 157
NLRB 1459, 1469; Ralph Printing & Lithography Co., 158 NLRB 1353,
fn. 22; Goodyear Tire & Rubber Company Retread Plant, 159 NLRB
834, 841, National Can Corporation, 159 NLRB 647 fn. 63; Wylie
Manufacturing Company, 162 NLRB 799, In 36.
M. KOPPEL CO. 981
or any other term or condition of employment, and em-
body in a signed agreement any understandings which
may be reached.
(b) Post at its plant at Newark, New Jersey, and at its
store in Westwood, New Jersey, copies of the attached
notice marked "Appendix."14 Copies of the said notice,
to be furnished by the Regional Director for Region 22,
after being duly signed by an authorized representative of
the Respondent, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where such notices are usually displayed.
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Recom-
mended Order, what steps have been taken by the
Respondent to comply therewith.15
14 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
15 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director
for Region 22, in wasting , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
The bargaining unit is:
All production and maintenance employees at
our Newark, New Jersey, plant and Westwood,
New Jersey, store, including shipping and
receiving employees but excluding all office
clerical employees, confidential employees,
professional employes, guards, and supervisors,
as defined in Section 2(11) of the Act.
WE WILL NOT coercively interrogate our em-
ployees concerning their union sympathies and ac-
tivities.
WE WILL NOT threaten our employees with
economic reprisals, including loss of employment,
because of their support of the Union.
WE WILL NOT grant wage increases to our em-
ployees or promise our employees economic benefits
in order to induce them to refrain from supporting the
Union.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of any
labor organization, 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 Rela-
tions Act.
NOTICE TO ALL EMPLOYEES OF OUR NEWARK PLANT
AND WESTWOOD, NEW JERSEY, STORE
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL, upon request, bargain collectively with
National Organization of Industrial Trade Unions,
as the exclusive bargaining representative of our em-
ployees in the bargaining unit described below -with
respect to rates of pay, wages, hours of employment,
and any other term or condition of employment, and,
if an understanding is reached, WE WILL embody
such understanding in a written , signed agreement.
M. KOPPEL COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 National
Newark Building, 744 Broad Street, Newark, New Jer-
sey 07102, Telephone 645-2100.
308-926 0-70-63