Marlboro Electronic Parts Corp.

National Labor Relations Board - Board Decisions

Apr 11, 1960

127 N.L.R.B. 122 (N.L.R.B. 1960)

122 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Marlboro Electronic Parts Corp . and International Union of
Electrical , Radio and Machine Workers, AFL-CIO. Case No.
£92-CA-318. April 11, 1960
DECISION AND ORDER
On December 28, 1959, Trial Examiner Owsley Vose 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
and the General Counsel filed exceptions to the Intermediate Report,
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, 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 Marlboro Electronic Parts Corp.,
Marlboro, New Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union of
Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive
bargaining representative of all production and maintenance em-
ployees, excluding executives, foremen, and other employees excluded
by the Labor Management Relations Act of 1947, as amended, em-
ployed at the plant of Marlboro Electronic Parts Corp., at Marlboro,
New Jersey.
I In view of our agreement with the Trial Examiner that the Respondent violated
Section 8 ( a) (5) as detailed in the Intermediate Report, including its outright refusal to
bargain with the Union on December 19, 1958, we find it unnecessary to pass upon the
General Counsel 's contention that Respondent engaged in other conduct also violative of
Section 8 (a)(5).
127 NLRB No. 19.
MARLBORO ELECTRONIC PARTS CORP . 123
(b) Coercively soliciting its employees to abandon a strike and
return to work.
(c) Assisting or supporting its employees in effecting withdrawals
from the International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO, or from any other labor organization of its employees.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, including the International
Union of Electrical, Radio and Machine Workers, AFL-CIO, to
bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective bar-
gaining 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
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Union
of Electrical, Radio and Machine Workers, AFL-CIO, as the ex-
clusive representative of the employees in the appropriate unit de-
scribed in paragraph numbered 1 (a), above, with respect to their
rates of pay, wages, hours of employment, and other conditions of
employment, and, if an agreement is reached, embody it in a signed
contract.
(b) Post at its Marlboro, New Jersey, plant, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Twenty-second Region,
shall, after being duly signed by the Respondent's authorized repre-
sentative, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
2In 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."
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 coercively solicit our employees to abandon a
strike and return to work.
WE WILL NOT assist or support employees in effecting with-
'drawals from International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO, or any other labor organization of
our employees.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form a labor organization, to join or assist International
Union of Electrical, Radio and Machine Workers, AFL-CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and 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 Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL, upon request, bargain collectively with International
Union of Electrical, Radio and Machine Workers, AFL-CIO,
as the exclusive representative of all the employees in the follow-
ing appropriate unit :
All production and maintenance employees employed by
Marlboro Electronic Parts Corp., Marlboro, New Jersey,
excluding executives, foremen, and other employees excluded
by the Labor-Management Relations Act of 1947, as
amended.
MARLBORO ELECTRONIC PARTS CORP.,
Employer.
Dated--------- ------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced , or covered by any other material.
MARLBORO ELECTRONIC PARTS CORP. 125
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , in which the parties were represented , was heard before me in
Newark, New Jersey, on July 20 and August 11 and 12, 1959, upon the complaint
of the General Counsel and answer of Marlboro Electronic Parts Corp., herein
called the Respondent . The issues litigated at the hearing were whether the Respond-
ent has refused to bargain collectively with the International Union of Electrical,
Radio and Machine Workers, AFL-CIO, herein called the Union , in violation of
Section 8 (a) (5) of the Act, and whether the Respondent 's solicitation of strikers to
return to work and certain other acts and conduct constituted interference , restraint,
and coercion in violation of Section 8(a) (1) of the National Labor Relations Act.
Counsel for the General Counsel and the Respondent have filed briefs with the Trial
Examiner.
Upon the entire record , and from my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL STATEMENT
The Respondent , a New Jersey corporation having its place of business at Marl-
boro, New Jersey, manufactures parts for electronic tubes and related products.
The Respondent annually ships from its plant products of a value in excess of
$50,000, of which more than $47,000 worth were shipped to customers within New
Jersey who each ship to out-of-State points finished products valued at more than
$50,000 annually , and more than $3,000 worth of the Respondent 's products were
shipped by it directly to customers outside of New Jersey . Admittedly , the Respond-
ent is engaged in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The International Union of Electrical , Radio and Machine Workers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES 1
A. The Respondent 's plant, its officers and supervisors
The Respondent 's plant at Marlboro is a small one in which 9 to 11 nonsupervisory
employees were employed at the time of the events in question , from September 1958
until January 1959 . Until the end of December 1958, the day-to-day management
of the plant was left in the hands of Edward Menny, the foreman, who set up the
machines for the employees and generally supervised their work . About the first
of January 1959, Ray Simons was made manager of the plant.
The Respondent sells its manufactured products to five or six customers, by far
the largest of which is the Engineering Company of Newark, New Jersey, the sole
owner of which is Daniel Kondakjian . The stock in the Respondent corporation is
owned by Daniel Kondakjian 's four daughters : Margaret Jeffery, who is president
of the corporation , Mary Bedrosian , vice president , Virginia Kondakjian , treasurer,
and Gladys Tutunjian, secretary . Mrs. Jeffery and Mrs. Tutunjian , so far as the
record shows , are the only officers who are active in the corporation and they do not
devote full time to its affairs. Mrs . Tutunjian, the secretary , is the most active of
the officers in the management of the corporation . Her husband , Henry Tutunjian,
assists her in these activities , and due to ill health she frequently relies on him to
handle corporate matters in her behalf.2
B. The sequence of events
1. The organization of the Union
The Respondent 's employees first discussed the advisability of affiliating with a
union in late September 1958. As a result of these discussions , Forest Pickering,
i The findings of fact which follow are based on the credited testimony of one or more
witnesses at the hearing In large measure , the testimony given was uncontradicted.
Wherever the testimony on material issues was in conflict, I have attempted to mention
and resolve such conflicts.
2 The foregoing findings are based on the testimony of the Respondent 's secretary,
Gladys Tutunjian , and her husband, Henry , who was fully familiar with the business of
the corporation.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of the employees , obtained union bargaining authorization cards from Alex
Blackman , an International representative of the Union, on October 9, 1958. Pick-
ering immediately signed a card and took the rest to the plant the next day. Six of
the remaining nine employees signed cards on October 10. That same day Pickering
turned over these cards , together with his own, to International Representative
Blackman .3
2. The Union 's initial request for recognition ; Foreman Menny 's signing of the
agreement of October 10; the Union 's subsequent efforts to reach higher officials
of the Respondent
Later that day, October 10, Blackman , according to his credible testimony , looked
up Foreman Menny at the plant, informed him that the employees had designated the
Union as their bargaining agent, and slated that he "was in there to request recog-
nition from him so we could negotiate a contract on hours, wages , and working
conditions ." 4 Blackman showed Menny the seven cards which the employees had
signed and gave him a document which he requested that Menny sign in which the
Respondent agreed to recognize the Union for collective -bargaining purposes.
Menny admitted that Blackman showed him the signed cards, handed him the
agreement , and testified that Blackman merely told him that he needed Menny's sig-
nature on the paper . Menny 's response was, according to his own testimony, that
"if they had signed and wanted a union , I had nothing against organized labor, that
I would sign it." 5 The meeting between Blackman and Menny on October 10
terminated with the understanding that Blackman would contact Menny on the
following Tuesday , after the Union had had an opportunity to meet with the em-
ployees and obtain their views as to what should be included in a contract . Black-
man never thereafter did communicate with Menny concerning a contract.6
A meeting of six or seven of the Respondent 's employees was held on Saturday,
October 25 , 1958, in an empty store in Marlboro . After Emil Fernicola , the business
agent of Local 438, explained the procedure in negotiating a contract , and obtained
information concerning the employees ' classifications , their wages , benefits, and
conditions of employment , a discussion of contract proposals followed. Fernicola
questioned employees as to who had "the highest authority in the Company."
Pickering , a part-time press operator and part-time general handy man about the
plant, informed Fernicola that Daniel Kondakjian was in highest authority.
Thereafter , according to Fernicola 's undenied testimony which I credit, Fernicola
unsuccessfully attempted on four or five occasions to reach Kondakjian at his office
in Newark by telephone . With regard to these calls Fernicola testified as follows:
Q. When you made that telephone call, Mr . Fernicola who answered the
phone?
A. I would say a telephone operator answered the phone first, identifying
herself who she was. She connected me with another party that was a female.
Q. What did this female say?
A. She asked me who I was, and I told her who I was and who I represented,
and I told her I would like to speak to Mr. Kondakjian . She told me that he
wasn't in but she would take the message . And 'I gave her our address and my
phone number and I told her I would be in the office all day in case he returned.
Q. Did you receive 'a call?
A. I did not.
Q Did you have occasions to call again?
A. I called on 3 or 4 or more occasions.
Q. Did you speak to the same girl?
A. I would say I did.
8 Subsequently , three other of the Respondent ' s employees signed cards authorizing the
Union to act as their bargaining representative.
4 bienny testified that Blackman explained to him that the purpose of his visit was to
obtain recognition for the Union, or "something to that effect."
5 At the hearing Menny testified that while he signed the "paper" which Blackman gave
him on October 10, he never understood that it constituted an agreement recognizing the
Union for collective-bargaining purposes . Menny explained that shortly after he signed
the document , he threw it away or mislaid it , and that it did not turn up until April 1959,
when his wife found it in a pocket of one of his jackets. In view of my ultimate dis-
position of the case, it is unnecessary for me to determine either whether Menny "under-
stood" that he was agreeing to recognize the Union for collective -bargaining purposes or
the legal significance of his action in doing so insofar as binding the Respondent is
concerned
6 On these points the testimony of both Blackman and Menny is substantially in accord.
MARLBORO ELECTRONIC PARTS CORP . 127
Q. Did the same conversation take place?
A. The same conversation. I also brought out that Mr. Kondakjian was
not showing any respect of calling me after I had called him 3 or 4 times. She
said, "Well he has been a very busy man." She said , "When he has the op-
portunity he will contact you."
3. The discharge of Pickering and the strike
The Respondent's plant normally operated only 5 days a week. On Saturday,
November 8, 1958, only the foreman and one employee, Pedro Vargas, were work-
ing at the plant. Pickering appeared at the plant that morning and asked Foreman
Menny for permission to borrow a shovel to move a tree or shrub. Menny gave him
permission and Pickering left the plant shortly thereafter to do so, Menny then went
out. When he returned to the plant about an hour later he found Pickering using
the telephone in the plant office.
In the meantime, Daniel Kondakjian had come to the plant to deliver some pins
used by the Respondent in its operations. The record does not reveal precisely what
transpired between Kondakjian and Pickering at,the plant that morning. However,
it appears that Pickering took offense at Kondakjian's treatment of him that morning,
for Foreman Menny credibly testified that Pickering called his home at lunchtime
that day, asked to speak to him, and, when Pickering was informed by Mrs. Menny
that her husband was eating his lunch, Pickering told her that Kondakjian should
have said good morning to him and that "he did not want to be treated that way."
After Menny returned to the plant he called Pickering back. When Pickering re-
peated his complaint, Menny told him that he had no business to come in there and
use the telephone on a Saturday. Pickering replied that "he would walk in and out
of that place whenever he pleases." Whereupon Menny informed him "well the
best thing I can do is let you go." 7
Pickering promptly called Nick Zarra, the president of Local 438, and told him he
had been discharged. Zarra immediately instructed him that "the following Mon-
day he was to contact all the other workers and strike the plant ." Pickering followed
these instructions. The strike began on November 10 and continued until January 8,
1959. Of the union supporters, which included virtually all the rank-and-file
workers in the plant, only Josephine Menny, the wife of the foreman, worked dur-
ing the strike. Pickering and several other employees stationed themselves in front
of the plant with picket signs. Pickering remained there during working hours most
of the time during the strike.
International Representative Blackman testified in effect that Pickering's discharge
was the only issue in the strike.8
4. Foreman Menny's offer of a wage increase to induce the employees to return
to work
On November 24, after the strike had been in progress 2 weeks, Foreman Menny
approached employee Stanley Storer's car which was parked in front of the plant.
Storer, Pedro Vargas, and Pickering were sitting in the car. According to Picker-
ing's testimony, which I credit, Menny stated as follows:
that he would give the people a ten cent raise to go back in, all except
Pickering.... he's out.
Storer and Vargas said that they did not care to go back under those conditions.9
Upon hearing Menny's offer of a 10-cent raise, Pickering called the union office
and spoke to President Zarra. As a result of this call Business Agent Fernicola came
7 The Regional Director subsequently granted leave to the Union to withdraw its charge
alleging that the discharge of Pickering violated Section 8(a) (3) of the Act Conse-
quently, there is no issue in this case concerning his discharge.
8 There is no controversy concerning the facts hereinabove found as to the circum-
stances of the strike and its causes. Counsel for the General Counsel stated for the
'record "we agree that this is an economic strike."
9 Accoiding to Menny, after inquiring of Storer and Vargas on this occasion whether
they knew why they were out on strike and receiving a negative answer from both, he
stated as follows
So I said to Storer if it was higher wages that they wanted that I thought I could
get them ten cents more an hour if they wanted to come back. That they did not
know what they were out there for. They told me that they could not come back,
that they were told to stay out there.
I find the facts to be as set forth in the text above.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the plant, looked up Foreman Menny, and told him that "I understand that you sent
for me, that you want to talk something about a contract." Menny denied sending
for Fernicola. The two men had a brief conversation after Menny returned from
lunch. The record does not show whether there was any discussion of wages or
working conditions. It shows only that Fernicola promptly reported back to a
union committee that "there was nothing in it." 10
5. The Union's efforts during the strike to reach a settlement and to open up
negotiations with the Respondent
Several days after the strike started, Zarra, the president of Local 438, called the
Mediation Service of New Jersey for assistance. According to Zarra's credited testi-
mony, he informed a Mr. Gallagher of that office over the telephone of the facts
concerning the recognition agreement, the difficulties Local 438's business agent was
having in opening up negotiations with the Company, of the discharge of Pickering,
the shop chairman, and the ensuing strike, and inquired "could he do something to
get the parties together to resolve this strike."
Later Gallagher reported back to Zarra by telephone that he had been in touch
with a Mr. Kondakjian and had been referred to a Mr. Harold Fertig, an attorney.
Gallagher reported further that he had talked to Fertig over the telephone, informed
him that the Union had called for assistance in settling the strike, that Fertig had
said that he was aware of the strike, and that he was not at that time in a position
to discuss negotiations.ii
In the meantime, according to the testimony of International Representative
Blackman, which I credit, Blackman had gone to the plant about November 24 or 25
and proposed to Foreman Menny that Pickering's discharge be submitted to arbi-
tration and the strike settled on this basis. Menny, after at first appearing to agree,
finally rejected this proposal i2
Early in December 1958, at the request of Local 438 president, Zerra, Inter-
national Representative Blackman telephoned Gallagher of the mediation service five
or six times. On one such occasion Gallagher suggested that Blackman himself
call Fertig, whom he referred to as the Respondent's attorney Blackman spoke
with Fertig on four or five occasions. On the first occasion Fertig identified himself
as the attorney for the Company. Blackman again proposed arbitration of the
Pickering case. Fertig subsequently called Blackman to tell him that the Respondent
had considered the matter but would not accept arbitration of Pickering's discharge.
In one of Blackman's conversations with Fertig, according to the credited testimony
of Henry Tutunjian,13 Blackman informed Fertig that Foreman Menny, on October
10. 1958, had signed an agreement recognizing the Union for bargaining purposes.
Subsequently, Henry Tutunjian advised Gallagher, as he credibly testified, that
Foreman Menny "had absolutely no authority to" sign any such "paper" with the
Union.
International Representative Blackman credibly testified that in a subsequent
conversation with Attorney Fertig, apparently in response to Blackman's overtures
regarding the settlement of the strike, Fertig proposed that "if the Union would
drop the Pickering case" then the Respondent "would be willing to sit down and
bargain a contract with us " 14 Fertig added, Blackman further testified, that "we
could either continue the strike while negotiations were going on or have the people
go back to work right away and bargain a contract at that time." Blackman advised
Fertig that he would have to consult others about this matter and would give him
the Union's answer later.
After consulting with Local 438 President Zarra, Business Agent Fernicola, and
TUE district representatives, and conferring with the employees, and obtaining
Pickering's consent, the Union decided to accept the Respondent's proposal.
Accordingly, President Zarra called Attorney Fertig on the telephone on Decem-
ber 18 and, after identifying himself, stated that it was his understanding "that the
question about not getting together for negotiating an agreement was because of
10 The findings of fact with respect to this incident are based on the testimony of
Foreman Menny and Business Agent Fernicola
11 The above finding is based on the credited testimony of Zarra. Fertig was not called
as a witness by either party
12 Menny was not questioned about the above incident.
13 As stated above, Tutunjian was the husband of Gladys Tutunj ian, the Respondent's
secretary, and was familiar with the Respondent's affairs.
14 About the same time, according to Zarra's credited testimony, Gallagher of the New
Jersey Mediation Service informed Zarra that the only obstacle in the way of negotiations
with the Respondent was Pickering's discharge
MARLBORO ELECTRONIC PARTS CORP. 129,
the issue of the reinstatement of Pickering." Zarra continued that "if that is the
issue, he could be assured that that would not be an issue and could we now make
dates and commence negotiation." After telling Zarra that "he was representing the
Company as attorney," Fertig stated, according to Zarra's uncontradicted and cred-
ited testimony, as follows: "He saw no reason why we shouldn't be able to resolve
an agreement. He claimed that that was the issue, the company is not anti-union
and that he would want to contact his clients and that he would definitely be in touch
with me the next day." Fertig requested that Zarra send him a sample contract.
Business Agent Fernicola left a model contract at Fertig's office early the next
morning.
When Fertig failed to call Zarra back by 4:30 p.m. on December 19, Zarra called
Fertig. After Fertig acknowledged receiving the copy of the model contract, Zarra
asked Fertig "are we able to set some date to sit down to enter into an agreement."
Fertig's answer, according to Zarra's credited testimony, was as follows:
His answer to me was that he was sorry that he had to reveal to me at this
time, even after giving me an indication the day before, that there would be
negotiations commencing, that in consultation with his client the decision is.
that they will not negotiate an agreement with us. He also stated that he was
relating his clients message. I sort of talked to him that I thought this was
something that was unheard of and unfair as an attorney to put us in this type
of indication of commencing to negotiate, to get us to resolve an issue, and
then at the last minute a reversal in a decision. I says it's unheard of in the
law of attorneys profession. He stated that he was sorry, he is only relating
the position of his client.
6. Foreman Menny's disclaimer of authority to the recognition agreement on
October 10
At the request of Henry Tutunjian, Foreman Menny went to the office of Attorney
Fertig on December 22 or 23, 1958. Fertig presented him with an affidavit to sign
declaring that he had no authority to sign papers for the Respondent. Menny did
as he was requested. According to Henry Tutunjian's credited testimony, by this
time Fertig had learned from talking to the union representatives that Menny had
signed a contract on behalf of the Respondent agreeing to recognize the Union, and
the purpose of having Menny sign the affidavit was to have him disclaim having
authority to sign such documents in the Respondent's behalf.
Thereafter, during the latter part of December, as Henry Tutunjian testified, the
Respondent discharged Fertig as its attorney.
7. The Respondent's solicitation of strikers to return to work on January 3 or 4;
the Respondent's assistance to employees in withdrawing from the Union
The Union did not terminate the strike until January 8, 1959. On January 3 or 4,
Menny and Raymond Simons, who by that time had succeeded Foreman Menny, as
manager of the plant, went to the home of Stanley Storer. Simons informed Storer
that he was the new manager of the plant, and asked whether Storer would consider
returning to work. Simons also requested Storer to contact Vargas about going back
to work. Simons stated that the Respondent was definitely going to resume opera-
tions on a limited scale, and that if they did not return to work younger workers.
would be hired to replace them. Storer said that he would consider going back
to work. As a result of this conversation both Storer and Vargas reported for work
on January 7 and worked all that day.
When Storer and Vargas came to work the next morning, January 8, they were
told that there would be no work for the next 2 days. Storer took advantage of the
opportunity thus presented to ask permission from Manager Simons to make a
long-distance call to Local 438 in Newark. After receiving permission from Man-
ager Simons to do so and obtaining Local 438's telephone number from Foreman
Menny, Storer called Local 438 and was connected with President Zarra. Storer
thanked Zarra for the $26 which he had received from the Union during the strike
and stated that he was going to return it since he was returning to work "not under
the Union." Storer then informed Zarra that he wished to sever his connection with
the Union.
After calling Local 438, Storer asked Manager Simons if he could use some
stationery. When Simons said that he could, he had Menny write a letter to Local
438 resigning from the Union and enclosing his check for $26. Manager Simons
thereafter commented to Storer that "it would be a nice gesture on tike part of the
Company if they did refund" the money sent the Union by Storer. Two or three
weeks later he received an extra check from the Respondent for $26.
560940-61-vol. 127-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Storer told Pedro Vargas about sending the $26 back to Local 438. Vargas agreed
that it was "a good idea." Vargas, however, did not have the money. Manager
Simons handed him $26.15 Upon obtaining a money order for this amount, Vargas
returned to the plant and requested Menny to write a transmittal letter to the Union.
The letter, written by Menny on January 8, 1959, and signed by Vargas, states
that "at the present time I do not care to be connected with the Union." Several
days later Simons informed him that it would be unnecessary for him to pay the
$26 back to the Respondent.
8. Conclusions concerning the Respondent's refusal to bargain
a. The Union's majority status in the appropriate unit
The complaint as amended at the hearing alleges that all the Respondent's
"production and maintenance employees, excluding executives, foremen, and all
other employees excluded by the Labor Management Relations Act of 1947 as
amended" constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. The Respondent does not contest
the appropriateness of the unit.
According to a stipulation of the parties, there were nine nonsupervisory em-
ployees on the Respondent's payroll as of October 10, 1958, and the Respondent's
payroll remained the same, at least until January 8, 1959, with the exception of
the addition of two employees on November 6, 1959. Cards authorizing the
Union to act as their collective-bargaining representative, signed by six of the nine
employees then on the payroll on or before October 10, 1958, were received in
evidence without objection. Thereafter three other employees signed such cards,
the last being signed on November 14, 1958. The authorization cards of these
employees were also received in evidence without objection.16 I find that on
October 10, 1958, and at all times thereafter, the Union represented a majority of
the Respondent's employees in an appropriate bargaining unit.
b. The Respondent's refusal to meet with the Union
As stated above on December 18, 1958, Local President Zarra in accordance with
his understanding of the Respondent's position, stated to Attorney Fertig with
respect to "getting together with regard to negotiating an agreement," that "the
reinstatement of Pickering . would not be an issue and could we now make
dates and commence negotiations." Fertig replied that "he saw no reason why
we shouldn't be able to resolve an agreement" and promised to call Zarra back the
next day after consulting the Respondent. On December 19, Fertig advised Zarra
that the Respondent's answer was that "they will not negotiate an agreement with
us." Upon Zarra's credited testimony, above set forth, if, as Attorney Fertig repre-
sented to Zarra, he had authority to speak in the Respondent's behalf with regard
to bargaining negotiations, the Respondent has violated Section 8(a)(5), for
Fertig's statement to Zarra constitutes an unequivocal refusal to meet and bargain
with the Union.
With respect to Fertig's authority to speak of the Respondent regarding these
matters the record shows as follows: In Fertig's conversations with the union
representatives, he purported to have authority to speak for the Respondent regard-
ing bargaining matters, expressly stating to President Zarra that "he was represent-
ing the Company as attorney." Mrs. Gladys Tutunjian, secretary of the Respondent
and the most active of the four officers in the Respondent's affairs, testified that,
with regard to matters pending before the State Mediation Service, "Mr. Fertig
was handling all these things for me at the time." When she was asked, "What
instructions did you give Mr. Fertig," she replied, "I am not a lawyer. What in-
structions can I give him9 He is my attorney." When questioned at the hearing
concerning statements made in a pretrial affidavit given to a Board agent about the
Respondent's position with regard to dealing with the Union, Mrs. Tutunjian cor-
rected her affidavit to read as follows:
Originally through Mr. Fertig, we were willing to recognize the union; however,
we refused to discuss the reinstatement of Mr. Forest Pickering. However, after
thinking it over and discussing it with the corporate officers, we decided that
we would not recognize the union at any time.
15 When asked whether he asked Simons for the money, Vargas answered according to
his uncontraditted and credited testimony, "not that I recall."
14 There is evidence that another employee, Daniel Mack, also signed a card on or
shortly after October 10, 1958.
0
MARLBORO ELECTRONIC PARTS CORP. 131
Henry Tutunjian , husband of Gladys, who , as noted above, was fully conversant
with the Respondent 's affairs, also gave testimony regarding the scope of the Fertig's
authority . Preliminarily he explained that when Gallagher of the mediation
service discussed with him the agreement signed by Foreman Menny on October
10, he stated to Gallagher that "whatever he [Menny] signed is not binding on the
corporation ." Whereupon Gallagher advised consulting the Respondent 's attorney
about the matter . Tutunjian testified further that "That is where I left it. Put it in
the hands of Fertig and he took care of it." When asked "what instructions did
you give Mr. Fertig," Tutunjian replied, "I told him to look into it and see what
was going on. We knew absolutely nothing." 17
In support of its contention that Fertig 's statement to Zarra was not binding upon
it, the Respondent , relies almost entirely on certain testimony adduced on cross-
examination of Henry Tutunjian , as follows:
Q. Did you instruct Fertig to go ahead and negotiate with the union on the
condition that Pickering's name was not brought up during the negotiation?
A. No.
Q. Fertig had no authority to make this statement to the union . Is that it?
A. I don't know what statement he did make, but he did not get the authority
from me.
Q. Could he have gotten it from another officer?
A. I don't believe he could have gotten it through my wife or possibly Mrs.
Jeffery, but I doubt it.
Q. Did you tell him that you did not want him to negotiate with the union
at all?
A. I did not.
There is no testimony that the Respondent authorized Fertig to agree to bargain
with the Union , only Tutunjian 's negative testimony , relied on by the Respondent,
that he did not instruct Fertig to negotiate on condition that Pickering 's case be
dropped , and that he did not tell Fertig that the Respondent did not want him to
bargain with the Union.
I am not quite clear as to the full import and scope of the Respondent 's contention
based on Henry Tutunjian's testimony above quoted. If the Respondent takes the
position that Tutunjian 's testimony affords a basis for inferring that the Respondent
-was willing to recognize and bargain with the Union and that Fertig acted contrary
-to the Respondent 's instructions and without its authority in stating that the Respond-
ent "will not negotiate an agreement" with the Union , then I must reject the Respond-
ent's contention . The entire sequence of events in this case subsequent to Menny's
signing of the agreement of October 10 recognizing the Union is consistent only with
the desire on the Respondent 's part to avoid recognizing and bargaining with the
Union. In its discussions with the mediation service the Respondent took the position
that the Menny agreement was not binding on it , and thereafter, through Attorney
Fertig, the Respondent affirmatively took steps to have Menny disclaim authority for
signing the agreement on the Respondent 's behalf. Its bypassing of the Union and
dealing directly with the employees in its efforts to induce them to abandon the strike
similarly is consonant only with the avoidance of bargaining relations with the Union.
Finally, Tutunjian 's testimony , relied on by the Respondent , insofar as it implies that
the Respondent was in fact willing to recognize and bargain with the Union, cannot
be reconciled with the credited testimony of his wife , Gladys, the secretary of the
Respondent , to the effect that upon reconsideration the Respondent 's officers "decided
that we would not bargain with the Union at any time."
Upon all the facts hereinabove set forth and the entire record, I conclude that at
the time of Fertig's statement to Zarra on December 19, 1958,18 that the Respondent
would not negotiate with the Union, Fertig was authorized to speak for the Re-
spondent in regard to bargaining matters, and that his statement in this regard on
December 19, 1958, constituted a refusal to bargain collectively with the Union in
violation of Section 8(a) (5) of the Act.
17 Mrs. Tutunjian 's testimony , quoted above , concerning the scope of Fertig's authority,
which is consistent only with a broad delegation of power to Fertig to represent the
Respondent regarding pending matters , refutes any suggestion which may be lurking in
Henry Tutunpan 's testimony above quoted that Fertig's authority was a narrow one,
and excluded the authority to represent the Respondent in bargaining matters
18 While the Respondent asserts in its brief to the Trial Examiner that Fertig was dis-
charged as attorney for the Respondent, this occurred at least subsequent to December 22
or 23 , 1958 , the day upon which Foreman Menny went to Fertig ' s office at Henry
Tutunpan ' s request and signed the affidavit disclaiming authority for signing the
October 10 , 1958, agreement
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that the Respondent also violated Section 8(a) (5),
of the Act in two additional respects. First, the General Counsel contends that
Daniel Kondakjian, the father of the four owners of the Respondent, had a respon-
sible voice in the management of the Respondent's affairs and that his refusal in
October to return Business Agent Fernicola's repeated telephone calls, under all the
circumstances of this case, constituted a refusal to bargain. Second, the General'
Counsel urges that Attorney Fertig conditioned all bargaining upon agreement by
the Union to the elimination of the discharge of Pickering from the subjects of bar-
gaining. In view- of my ultimate conclusion that the Respondent has clearly violated
Section 8(a)(5) of the Act by refusing to bargain with the Union under any and'
all circumstances, I do not feel that it will serve any useful purpose to detail and
consider the evidence relating to these two additional issues, and consequently I will
not attempt to pass upon them in this report.
9. Conclusions concerning the Respondent's solicitation of strikers to return to work
As stated above, on November 24, about 2 weeks after the strike began, Forman.
Menny conveyed to Storer and Vargas the Respondent's request that all of the strikers.
except Pickering return to work, and offered a 10-cent raise if they did so. Such
solicitation of individual strikers to abandon a strike called by the majority representa-
tive of the employees, accompanied as it was by a promise of benefit, constitutes an
infringement of the employees' rights guaranteed in Section 7 of the Act, inter alia, to
designate and bargain collectively through representatives of their own choosing.
Hence, I conclude that the Respondent, by engaging in such solicitation, has vio-
lated Section 8(a)(1) of the Act. The Texas Company, 93 NLRB 1358, 1360-1361;
Harcourt and Company, Inc., 98 NLRB 892, 895; Blackstone Mills, Inc., 109 NLRB.
772, 773, 780; Wheeling Pipe Line, Inc., 111 NLRB 244, 253, enfd. 229 F. 2d 391,
392 (C.A. 8).
On January 3 or 4 Manager Simons and Foreman Menny went to the home of
Storer and again sought to persuade him to return to work, and this time referred
to the possibility of his being replaced by younger workers.19 Although the Re-
spondent on this occasion apparently did not again expressly offer a 10-cent raise, I
find, under all the circumstances of the case, including the fact that Storer actually
received a 10-cent raise when he returned, that such an offer was implicit in the
Respondent's solicitation. Hence, under the authorities cited in the preceding para-
graph the Respondent's second solicitation of Storer to return to work also violated
Section 8(a) (1) of the Act.
In any event, assuming that a tacit promise of a 10-cent raise was not involved,
in my opinion the Respondent's second solicitation of Storer to return to work was
nevertheless violative of the Act under all the circumstances of the case. The
Respondent had full knowledge that the Union was the majority representative of
its employees. The whole course of events in this case-the Respondent's disclaimer
of responsibility for Foreman Menny's action in signing the recognition agreement,
its unequivocal refusal to recognize and bargain with the Union even after the
Union agreed to drop Pickering's case, and its subsequent acts of assistance to
employees in effectuating their withdrawal from the Union-indicates a determina-
tion on the Respondent's part to avoid collective bargaining entirely. As the
Board has held, where solicitation of individual strikes to return to work occurs in
such a background of opposition to collective bargaining, it is reasonable to infer
that the employer is seeking to undermine the employees' chosen representative
and to substitute individual for collective bargaining. See case cited above and
N.L.R.B. v. Clearfield Cheese Co., Inc., 213 F. 2d 70, 73 (C.A. 3). I conclude
that the Respondent's second solicitation of Storer had such an objective and was
therefore violative of Section 8 (a) (1) of the Act.
I find further that the Respondent's solicitation of strikers to return to work was
part and parcel of a consistent plan to avoid bargaining with the statutory bargaining
representative of its employees, and for this reason the Respondent's conduct in
this regard also violated Section 8 (a) (5) of the Act.
10. Conclusions concerning the Respondent's assistance to strikers in withdrawing
from the Union
As stated above, after Storer and Vargas returned to work in response to the
Respondent's solicitation to do so, the Respondent cooperated with both men in
11 Since Storer was engaged in an economic strike, the Respondent was free to replace
him at will, and would lawfully announce its intention to do so. Hence, no finding of a
violation of the Act is based on the threat to replace.
MARLBORO ELECTRONIC PARTS CORP. 133
effecting 'their withdrawal from the Union . It afforded Storer the use of its long-
distance telephone facilities to notify the Union of his withdrawal . Foreman Menny
.actually wrote the letters revoking the bargaining authority of the Union for both
Storer and Vargas , and the Respondent furnished Vargas the $26 with which to
repay the Union for the financial assistance received by him from the Union during
the strike . Subsequently , the Respondent reimbursed Storer for the $26 which he
had previously paid back to the Union out of his own funds. Such assistance to
employees in effecting their withdrawal from a union , in the context of events in
this case, in my opinion , clearly exceeds permissible bounds. Like the Respondent's
solicitation -of Storer and Vargas to return to work in derogation of the bargaining
authority given the Union , the Respondent 's assistance in withdrawing was an integral
part of the Respondent 's plan to evade its bargaining obligations under the Act.
I conclude that the Respondent 's assistance to, and cooperation with, Storer and
Vargas in effecting their withdrawal from the Union interfered with their freedom
of choice with respect to remaining union members, and that the Respondent by en-
gaging in such conduct has violated Section 8 ( a)(1) of the Act. The Juvenile
Manufacturing Company, 117 NLRB 1513, 1514 , 1536-1538.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
1 shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Union represented a majority of the employees in the
,appropriate unit and that the Respondent refused to bargain collectively . Accord-
ingly, I shall rcommend that the Respondent , upon request, bargain with the Union
as the exclusive representative of the employees in the appropriate unit.
The Respondent's unfair labor practices are such as to indicate an attitude of
opposition to the purposes of the Act generally , and accordingly the commission
,of these and other unfair labor practices in the future is reasonably to be antici-
pated from the Respondent 's past conduct . In these circumstances, the preventive
purposes of the Act may be thwarted unless the remedy is coextensive with the
threat. To effectuate the policies of the Act, therefore , it will be recommended that
the Respondent cease and desist from infringing in any manner upon the rights guar-
anteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All the Respondent 's production and maintenance employees , excluding execu-
tives, foremen , and all other employees excluded by the Labor Management Rela-
tions Act of 1947, as amended , 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 10, 1959, was , and all times thereafter has been, the
exclusive bargaining representative of all employees in such unit for the purposes
,of collective bargaining.
4. By refusing to bargain collectively with the Union as the exclusive representa-
tive of its employees in an appropriate unit, on and after December 19 , 1958, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
5. By interfering with , restraining, and coercing its employees in the exercise
,of the 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.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]