Niskayuna Consumers Cooperative, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1965

155 N.L.R.B. 170 (N.L.R.B. 1965)

170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner restrain or coerce employees or applicants
in the exercise of the rights guaranteed in Section 7 of the Act, except in the
manner permitted by Section 8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
THE INTERNATIONAL ALLIANCE OF THEATRICAL STAGEHAND EM-
PLOYEES AND MOVING PICTURE OPERATORS OF THE UNITED
STATES AND CANADA, LOCAL 642,
Labor Organization.
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 members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 614 National
Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. Market
4-6151.
APPENDIX B
NOTICE TO ALL EMPLOYEES AND APPLICANTS
Pursuant to the Recommended Order of a Trial Examiner of- the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT maintain or enforce any exclusive agreement, understanding,
arrangement, or practice which conditions the hiring of permanent employees
upon their membership in the Union. and their union seniority, and which affords
preference for temporary employment with our company to union members over
nonunion members.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees or applicants for employment in the exercise of the rights guaranteed in
Section 7 of the Act.
All our employees are free to become or remain, or to refrain from becoming or
-remaining, members of the Union, except to the extent that this right may be affected
by an agreement requiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
SKOURAS THEATERS CORPORATION,
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 pro-
visions, they may communicate directly with the Board's Regiohal Office, 614 National
Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No. Market
4-6151.
Niskayuna Consumers Cooperative , Inc. and Amalgamated Meat
Cutters,. Butcher Workmen and Affiliated Crafts of North
America, District Union Local No. 1, AFL-CIO. Case No. 3-
CA-2437. October 1$,1965
DECISION AND ORDER
On April 20, 1965, Trial Examiner Louis Libbin issued his Decision
in the above-entitled proceeding, finding that the Respondent had
155 NLRB No. 23.
NISKAYUNA CONSUMERS COOPERATIVE, INC. 171
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the Trial Examiner's,
Decision and a supporting brief. The General Counsel filed a motion
to strike the Respondent's exceptions, to which the Respondent filed
an affidavit in answer and opposition thereto.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 Trial
Examiner's Decision, the exceptions and brief,' the motion to strike
and answer thereto,2 and the entire record in this case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]
1 Respondent's request for oral argument is hereby denied as the record, the exceptions,
and the brief adequately present the issues and the positions of the parties.
2 The General Counsel's motion to strike the Respondent's exceptions is hereby denied.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on September 2, 1964, by Amalgamated Meat Cutters, Butcher
Workmen and Affiliated Crafts of North America, District Union Local No. 1,
AFL-CIO, herein called the Union, the General Counsel of the National Labor Rela-
tions Board , by the Regional Director for Region 3 (Buffalo, New York), issued his
complaint, dated November 2, 1964, against Niskayuna Consumers Cooperative, Inc.,
herein called the Respondent. With respect to the unfair labor practices, the com-
plaint alleges , in substance , that: (1) At all time material herein, the Union was
designated as collective-bargaining representative by a majority of the employees in
a specified appropriate unit; (2) on and after August 17, 1964, Respondent, upon
the Union's request , refused to recognize and bargain with the Union as the exclu-
sive bargaining representative of the employees in said appropriate unit; (3) Respond-
ent, through its agents, engaged in specified conduct constituting interference, restraint,
and coercion ; and (4) by the foregoing conduct, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7)
of the National Labor Relations Act, herein called the Act. In its duly filed answer,
as amended at the hearing, Respondent admits the appropriateness of the unit
designated in the complaint, denies that the Union was designated by a majority of
the employees in said unit , and denies generally all unfair labor practice allegations.
Pursuant to notice , a hearing was held before Trial Examiner Louis Libbin at
Schenectady, New York, on January 13 and 14, 1965. All parties were represented
at and participated in the hearing, and were given full opportunity to be heard, to
examine and cross -examine witnesses , to introduce relevant evidence, and to file
briefs. On March 15, 1965, the General Counsel and Respondent filed briefs, which
I have fully considered . For the reasons hereinafter stated, I find that Respondent
violated Section 8 (a) (1) and (5) of the Act.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record 1 in the case, and from my observation of the witnesses, I
-make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Niskayuna Consumers Cooperative, Inc., a New York corporation,
maintains a store in Schenectady, New York, where it is engaged in the retail sale
and distribution of foodstuff and other products. During the 12 months preceding
the issuance of the complaint, Respondent sold and distributed products of a gross
value exceeding $500,000; during the same period, Respondent received at its store
goods, valued in excess of $50,000, directly from points located in States outside
the State of New York.
Upon the above admitted facts, I find, as Respondent concedes, that Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find, as the complaint alleges and Respondent admits, that Amalgamated Meat
Cutters, Butcher Workmen and Affiliated Crafts of North America, District Union
Local No. 1, AFL-CIO, is a labor organization within the meaning of Section 2(5)
,of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
Self-organization among Respondent's employees commenced sometimes in July
1964. By August 15, the Union had received authorization cards signed by a
majority of the employees in the appropriate unit. On August 17 and on several
occasions thereafter the Respondent refused, upon the Union's request, to recognize
and bargain with the Union as the exclusive representative of the employees in 'the
appropriate unit on the basis of the card designations. On September 2, the Union
filed the charge in the instant case.
The principal issues litigated in this proceeding are: (1) whether on and after
August 17 Respondent engaged in acts of interference, restraint, and coercion violative
of Section 8(a)(1) of the Act, including (a) interrogation, (b) creating the impres-
sion of surveillance, (c) issuing discriminatory instructions to employees, (d)
encouraging, condoning, and ratifying antiunion petitions and demonstrations, and
(e) threats of its attorney to a union official; (2) whether the signed authorization
cards constituted valid designations of the Union so as to constitute the Union as
having been designated by a majority of the employees in the appropriate unit as
their collective-bargaining representative; and (3) whether Respondent's refusal to
recognize and bargain with the Union was based on a good-faith doubt of the
Union's majority status. As in most cases, these issues also involve important cred-
ibility resolutions.
B. The relevant facts 2
1. Self-organization among Respondent's employees
Sometime in July 1964 Arthur Askew, a meatcutter employed by Respondent,
telephoned to Marvin Pizzo, business representative of the Union, and informed
Pizzo that Respondent's employees were dissatisfied with their working conditions
and wanted a union to represent them. Pursuant to an appointment made at that
time, Pizzo and one is his coworkers, Fisher met with Askew and a fellow employee
and discussed the procedure for organizing. Pizzo explained that if a majority of
the employees would sign union authorization cards, he would present the cards to
Respondent and ask for recognition. Pizzo gave Askew a number of union author-
ization cards.
Thereafter, Arthur Askew distributed the union authorization cards to Respond-
ent's employees and himself solicited some employee signatures. Other employees
i On March 15, 1965, Respondent and the General Counsel, respectively, filed separate
motions to correct the typewritten transcript of testimony in designated specific respects.
No objections have been filed to the granting of these motions. Accordingly, I hereby
grant both motions and make the documents part of the record in this proceeding Both
motions have been placed in the official exhibit folder as Trial Examiner's Exhibits
Nos. 1 and 2.
nless otherwise Indicated, the findings in this section are based on evidence and
credited testimony which is either admitted or undenied.
NISKAYUNA CONSUMERS COOPERATIVE, INC. 173
were solicited by employees to whom Askew had given authorization cards for the
purpose of soliciting fellow employees . By Saturday, August 15, Askew had returned
the last group of signed cards to Pizzo . At that time Pizzo decided that he already
had signed authorization cards from a majority of the employees . Pizzo at that time
informed Askew that the following Monday he would approach whoever was in
charge of Respondent's store to seek recognition.
2. Manager Hedlund's conduct in response to Pizzo's request for recognition
About 3 p.m. on Monday, August 17, Pizzo, accompanied by Fisher, went to
Respondent 's store. After ascertaining who the store manager was , they went up to
Store Manager Hedlund. Pizzo introduced himself and Fisher; Hedlund then identi-
fied himself as the store manager. Pizzo then stated that he was there representing
a majority of the store employees and would like to negotiate a union contract. When
Hedlund replied that he did not believe the Union represented a majority of the
employees , Pizzo presented him with the 16 union authorization cards which had been
signed by Respondent 's employees and which were introduced in evidence in the
instant hearing. Hedlund went through the stack of cards from top to bottom, passing
each card from one hand to the other and remarking at intervals , "They stabbed me
in the back." After finishing , Hedlund went through the stack of cards a second time
at a slower pace and counting them in the process . He pulled out one card which
he put on top of the pile and, after concluding his count, stated, "You have the
majority, but we don 't want a union here." Hedlund then started to walk toward
.the meatroom in the back of the store, exclaiming , "I know who the instigator and
troublemaker is here." Pizzo then reached out and took back the authorization
cards. He saw that Hedlund had placed the card of Arthur Askew on top of pile .3
Pizzo and Fisher followed Hedlund into the meatroom . There, in the presence of
employees working in the area , Hedlund accused Askew of being the instigator of
the Union and bringing the Union into the store , stated that he knew Askew had
signed a union card because he ( Hedlund ) saw the card , and announced that "We
s The findings in this paragraph are based on the credited testimony of Pizzo and
Fisher, both of whom impressed me as being honest and sincere witnesses. Pizzo in
particular was a most impressive witness who testified in a straightforward , assured,
and convincing manner which inspired confidence in the veracity of his testimony.
Hedlund admitted that Pizzo said, "We have the majority of the employees signed up"
and that he would like to discuss the matter in Hedlund 's office , and that Pizzo presented
Hedlund with a stack of cards . He testified that he only leafed through two or three
cards by moving them 2 inches apart with one card on top of another and that they
were not the same cards as those introduced into evidence by the General Counsel. He
admitted that the height of the pile of cards presented to him by Pizzo was the same as
the height of the pile of 16 cards introduced in evidence by the General Counsel. At one
point, he testified that he did not know if there was any printing on the cards because he
did not look at them too closely ; at another point , he testified that he noticed green
printing on the cards but did not know what the printing said because he did not read
the cards ; at still another point, he testified that he did not see Arthur Askew's name on
=any card ; at another point , he testified that he could not "recall" whether Askew's name
was on any of the cards because he "didn't notice the names" ; and at still another point,
he testified that the cards which he looked at bore the names of persons employed in
Respondent 's store. He testified that he did not count the cards , yet admitted denying to
Pizzo that he had 90 percent signed up . He also denied telling Pizzo that he did not
believe the Union represented a majority . However, he did not deny stating that "They
stabbed me in the back ," as he looked at the cards ; nor did he deny stating , "I know
who the instigator or troublemaker is here," as he admittedly started for the meat de-
partment to speak to someone there . On the other hand, he admitted that he had been
informed 3 or 4 days earlier by two employees that Arthur Askew was organizing for
the Union and that he later accused him of being the instigator.
James Itnowlson , a salesman who sells merchandise to Respondent, testified that when
-Pizzo first approached Hedlund, Pizzo stated that he wanted to negotiate a contract.
He further testified that he ( Knowlson ) then moved off 10 to 20 feet away , and from
that distance saw Hedlund going through two or three cards "from top to bottom" but
-did not hear the rest of the conversation.
Hedlund was a most unimpressive witness who at times disclosed a poor memory and
who testified in a manner which led me to believe that he was more concerned with giving
testimony which would be favorable to Respondent 's case than to disclose the true facts
as he knew them. Upon consideration of all the foregoing and the demeanor of the wit-
nesses, I find that Hedlund is not a credible witness and I do not credit his testimony to
the extent that it conflicts with that of Pizzo and Fisher set forth in the text.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do not want a union here." When Askew denied having anything to do with bringing
the Union in but admitted signing a union card, Hedlund retorted that he was dis-
appointed in Askew and that it was just like getting a knife stuck in his back.
Pizzo admonished Hedlund that he had no right to intimidate Askew and stated that
employees had a right to join a union if they wished. Hedlund replied, "We want
no union here." 4
Pizzo then stated to Hedlund, "If you will not sit down and discuss [a] contract,
who can I speak to?" All three left the meatroom for another part of the store,
with Pizzo repeating his request for someone who was willing to discuss the matter
of negotiating a contract. Hedlund stopped at an extension telephone and admittedly
was unable to find the names of Respondent's president and vice president in the
telephone book. He then led Pizzo and Fisher to his office and instructed employee
Vesta Sager to write out the names, addresses, and telephone numbers of Respond-
ent's president and vice president. When Pizzo received this information, he and
Fisher left Respondent's premises.
Hedlund then returned to the meatroom and, in the presence of three employees,
admittedly told Askew that he knew Askew was the instigator of the Union. When
Askew asked why Hedlund had singled him out when there were 22 or 23 other
employees working in the store, Hedlund replied that he had proof that it was
Askew. Thereupon, Askew asked Hedlund to submit his proof. Hedlund then
called in employee Vesta Sager and admittedly asked her if she would tell him
"who organized for the Union." She replied that Askew had spoken to her about
the Union. Hedlund also admitted that 3 days earlier, Sager told him in his
office that "Art Askew had been actively organizing for the Union."
3. Further requests and refusals for recognition and bargaining
After leaving Respondent's premises on August 17, Pizzo and Fisher went to
Pizzo's home where Pizzo telephoned to Respondent's President Marshall. A woman
answered and stated that Marshall had stepped out but would be back shortly and
would return his call. Pizzo identified himself as a representative of the Union
and left his name and telephone number. After waiting about 15 minutes without
receiving a return call, Pizzo called Western Union and dictated a telegram to
Marshall. The telegram advised that a majority of Respondent's employees had
signed union cards authorizing the Union to negotiate an agreement with Respond-
ent, that Pizzo and Fisher had that afternoon presented to Hedlund, Respondent's
store manager, authorization cards signed by Respondent's employees, that Hedlund
went through the cards one by one and admitted that they constituted a majority,
that "We are also willing to present said cards to you and have any disinterested
person cross check said cards against your payroll records to date," and that Pizzo
would be available for a meeting at Marshall's earliest convenience. The telegram
concluded with Pizzo's address and telephone number and a request for an immedi-
ate reply. Pizzo never received a personal reply from Marshall.
About August 20 Pizzo received a letter from William Eddy, who was Respond-
ent's attorney at that time. The letter stated that Respondent instructed Eddy to
request the Union to file a petition for certification with the State Labor Board and that
Respondent did not wish to deal directly with the Union concerning the Union's proof
of majority. Upon receipt of this letter, Pizzo telephoned to Attorney Eddy,
explained that he did not see why the Union should have to go through an election
when Mr. Hedlund had admitted that a majority of the employees had signed cards,
and stated that the Union refused to go through an election in view of Hedlund's
conduct in undermining the Union's majority by interrogating and coercing an
employee in the presence of other employees. Eddy replied that he would speak to
his client, and obtained Pizzo's agreement not to take any further steps in the interim.
On August 31 Pizzo was advised by Eddy that he no longer represented Respondent
in this matter and that Respondent's new attorney was Sanford Rosenblum of
Albany, New York.
Either the same or the following day, Pizzo telephoned to Attorney Rosenblum,
advised him that the Union had signed authorization cards from a majority of
Respondent's employees and that Hedlund had admitted the Union had a majority,
and explained how Hedlund had conducted himself before employees on August 17.
Pizzo also offered Rosenblum the opportunity to get a disinterested person to cross-
check the signed cards against Respondent's payroll. Rosenblum replied that he
would ascertain from Respondent whether it would recognize the Union.
f The findings in this paragraph are based on the credited testimony of Pizzo and Fisher
and employees Askew and Cornell. For reasons previously indicated, I do not credit
Hedlund's testimony to the extent that it may be regarded as being in conflict with the
findings in the text.
NISEAYUNA CONSUMERS COOPERATIVE, INC. 175
Within a few days, Rosenblum informed Pizzo that Respondent insisted on the
Union winning a National Labor Relations Board election before it would recognize
it. Pizzo remonstrated that he could see no reason for an election in view of the
fact that Hedlund had gone through the cards and had admitted the Union's majority
and in view of Hedlund's conduct at the store. Rosenblum suggested that if Pizzo
felt that Hedlund had hurt the Union's majority, Respondent would give the Union
all the time it needed to reestablish its majority before going to an election. Pizzo
refused to accept this offer.
4. Hedlund's instructions about employees talking to union organizers
On August 19 Union Representative Fisher was removed from Respondent' s store
by the police, on Hedlund's complaint. The next day, employee Vesta Sager asked
Hedlund whether the employees could talk to union representatives who came in the
store. Hedlund stated that the employees could talk to "union people" only during
nonworking hours such as their breaks and lunch periods. This was the first time
that Respondent prescribed any rule for employee conduct with respect to talking
to union people.
5. Antiunion petitions and demonstrations
About September 8 Theresa Diaz, employed by Respondent as a meatwrapper,
was openly soliciting employee signatures at the store to a petition which stated, "We
the undersigned do not want the Union at the Niskayuna Coop." 5 The petition con-
tains the names of 20 employees and 2 admitted supervisors who were excluded from
the unit because of their supervisory status by stipulation of the parties on the first
day of the instant hearing.6 Diaz also made arrangements for herself and a group
of employees to receive television coverage by WRGB-TV news, outside the store,
first on Thursday and then on Friday, September 10 and 11. She testified that it
took her about 8 or 10 days to secure all the signatures on her petition and that she
secured the final signature 3 days before the television incident. Hedlund admitted
that it was common knowledge around the store that the petition was being passed and
that he spoke to Diaz about the petition about 3 days before the appearance of the
television cameras.
Diaz telephoned the local television station , asking for news coverage on a demon-
stration to be staged by herself and a group of Respondent's employees. This was
first scheduled for 4:30 p.m. on Thursday, September 10. On that day, Diaz went
to Hedlund shortly before 4 p.m. and told him that she "wanted to take the kids just
for a little while," without at that time specifying why or where she was going to take
these employees. Hedlund gave her the necessary permission. She then went around
the store and told the employees to be ready at 4:30 p.m., if she wanted them. The
employees then grouped together at the delicatessen department door in the store and
waited. They remained there at least 5 minutes, waiting for the WRGB-TV news
camera to appear. While they were waiting, Delicatessen Manager Fazzone took
care of running the delicatessen department. Diaz left the employees grouped there
and went to telephone WRGB. She ascertained that the television cameras would
not be there until the following day. She then went back and told the employees
to disperse and that she would talk to them the following day.
The next day, Friday, September 11, there appeared in the Schenectady Gazette, a
morning paper which is delivered to Respondent's store, a news article quoting
interviews held with Diaz, Hedlund, Rosenblum, and Pizzo concerning the respective
positions of Respondent and the Union. Diaz is quoted as stating that she and about
25 of Respondent's employees "don't want the Union and will go out and talk to the
pickets at 4:30 p.m. during a 15 minute coffee break."
Prior to 4:30 p.m. that Friday, when the television news cameras were scheduled
to appear, Diaz told Hedlund that she would like to take most of the employees
with her and asked that they all be permitted to take their coffee breaks at the same
time for that purpose. Hedlund granted the request. Diaz then went around to the
employees in the store and told them to assemble again at the delicatessen department
door as on the preceeding day. In response to inquiries from some employees as to
whether it would be all right to go out of the store that late in the afternoon, Diaz
replied that "Art [Hedlund] said it was all right." She admitted giving this message
to all the employees whom she solicited for this demonstration.
About 4:30 p.m. Diaz walked out of the store followed by approximately 17 of
Respondent's employees. Diaz made a speech, claiming that none of the employees
5 An earlier petition which she had instituted about August 19 was thrown away by her
because it did not have too many names on it and had gotten dirty.
9 These two supervisors are Delicatessen Manager Rita Fazzone and Meat Department
Manager Charles Wallace.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
belonged to the Union, and was to present the antiunion petition before the television
camera. Hedlund admitted that about 3 days earlier he talked to Diaz about "the
petition being presented in front of the television cameras."
The employees remained outside the store for 15 minutes and then returned to
work. Diaz remained outside for 20 minutes. In addition, some time was consumed
in assembling the employees before going out at 4:30 p.m. Diaz specifically told
the employees whom she solicited that the time consumed would have to count as
their break. At least one employee had already taken his break before participating
in the demonstration. Respondent permitted its employees to take a morning and
an afternoon break, each limited to 10 minutes. Hedlund testified that Respondent's
policy was to try to limit the afternoon breaks so that the employees "are finished
before the 4 o'clock rush comes into the store" and that "we try to eliminate the
breaks before the heavy business arrives." At the time of the antiunion demonstra-
tion that Friday afternoon, the store admittedly was very busy. During that period,
as well as on the preceding afternoon, Hedlund and Respondent's accountant, Leon
Reynolds, assumed work stations, thereby releasing employees to participate in the
demonstrations?
6. Attorney's threats to union representative
On October 2, 1964, Sanford Rosenblum, Respondent's attorney, received a tele-
phone call in his Albany office from Store Manager Hedlund, who stated that he had
information that Fisher, a union organizer , had purchased an alcoholic beverage for
a minor. Rosenblum replied that he wanted to look into the matter and that he
might come to the store in Schenectady that afternoon. After this conversation,
Rosenblum "did some research into the law" on this matter and concluded that if
Hedlund's information was correct, Fisher would be guilty of violating the "Penal Law
of the State of New York" and that such conduct would constitute a misdemeanor and
"a violation of the Alcoholic Beverage Control Law." Rosenblum went to Respond-
ent's store where Hedlund confirmed what he had related on the telephone.
Rosenblum made contact with Pizzo by telephone that same afternoon. Pizzo
was at his home at the time recovering from an illness. Rosenblum stated that he
would like to meet with Pizzo and be alone, that he wanted to discuss a certain matter
with him. Pizzo replied that he was just getting over an illness but was well enough
to be able to see him, and gave Rosenblum directions on how to get to his home.
About 20 minutes later, Rosenblum arrived at Pizzo's home and parked his car across
the street from Pizzo's house. Rosenblum crossed the street and entered Pizzo's home.
The foregoing findings are based on admitted or undemed testimony of Rosenblum
and Pizzo. The testimony is in sharp conflict as to what transpired after Rosenblum
entered Pizzo's house. In view of the serious accusations against Rosenblum, I deem
it pertinent to treat this matter in more detail than is customarily accorded to a
credibility issue. I will therefore set forth each version before resolving the conflict.
a. Pizzo's version
The following is Pizzo's testimony as to what transpired:
When Rosenblum entered, Pizzo led him "into this little den what we have, and
my wife was about the house doing her chores." Pizzo entered the den first and
Rosenblum closed the door behind him. As they sat down on the couch, Rosenblum
said, "Marvin, will you put the television on9" Pizzo said, "Are we going to discuss
something, or are we going to watch television?" When Rosenblum looked "sort of
suspiciously around," Pizzo said, "What is the problem? Why do you want the televi-
sion on?" Rosenblum replied, "Well, you might have the room bugged." Pizzo then
said, "If you don't believe that the room is not bugged, we can go outside and sit in
my car." Rosenblum replied that he "would rather" do that. Both men left the
house and entered Pizzo's car which was parked in his driveway. Pizzo got in on
the driver's side. As Rosenblum got in on the other side, he reached for the cigarette
lighter, looked at it, put it back, and then tried the radio. At that point, Pizzo stated
that the radio does not go on "unless the key is in" and asked, "Do you think the
car is bugged, tool" Pizzo added. "If you want to discuss something, we discuss it,"
and asked, "What is your problem?"
Rosenblum then offered Pizzo two alternatives. The first one was that if Pizzo did
not withdraw the instant charges filed with the Board by the Union against Respond-
ent, Rosenblum's client, Rosenblum would see to it that Union Representative Fisher
would go to jail because he allegedly had bought some alcoholic beverage for a minor.
71-Tedlund took over the first cash register (checkstand) and checked groceries, while
Reynolds packed groceries and carried them to customers ' automobiles.
NISKAYUNA CONSUMERS COOPERATIVE, INC. 177
Pizzo exclaimed, "You are trying to blackmail me," and refused to budge. Rosen-
blum stated, "I am going to beat you anyway, so you might as well withdraw the
charges." Pizzo replied that he was not going to withdraw the charges, that he would
"let the chips fall where they may," that if Fisher had violated the law he must suffer
the consequences, and that he did not think much of Rosenblum's "ethics as an
attorney in trying to blackmail" him into withdrawing the unfair labor practice charges
against Respondent. Rosenblum then offered Pizzo a second alternative and that
was that Pizzo could agree to go to an election. Pizzo refused, stating that Hedlund
had counted the cards and had assured Pizzo that he had the majority. Pizzo stated
that he would "not budge on either" alternative At this point, Rosenblum said
that he would go to the district attorney with the matter. Pizzo replied, "You be my
guest" and added, "I will be glad to come with you to the D A.'s office." Rosenblum
had with him a book which he at this point opened to a certain section that had been
marked off and read the law on buying drinks for a minor. Pizzo then reiterated;
that "If this is what happened that Mr. Fisher did buy drinks for a minor, Mr. Fisher
will have to suffer for it." Pizzo added that "Our conversation ends right here."
The two men thereupon parted, and Rosenblum drove away.
b. Rosenblum's version
Rosenblum testified as follows on direct examination
Pizzo led Rosenblum "into what appeared to be a den." At that point Rosenblum,-
asked "if there was anybody else in the house." When Pizzo replied this his wife
was about the house, Rosenblum asked "if there was a place where we could have-
some privacy." Pizzo thereupon suggested that they go out to his car. The two men,
went out to Pizzo's car which was parked in the driveway. Pizzo sat behind the
wheel and Rosenblum sat next to him.
Rosenblum then told Pizzo that what he had to tell "didn't have anything to do
directly with the Cooperative." Rosenblum stated that facts had been called to his,
attention which indicated that Fisher had purchased a drink for a minor employee of
Respondent, that Rosenblum "had done some research on this and [had] concluded
this was a possible violation of law," and that "as an officer of the Court," he felt it
would be his "duty to call this to the attention of the proper authorities, the District
Attorney." At that point, Rosenblum read from McKinney's Penal Law, a book of
statutory law which he had brought with him, to back up his assertion. Rosenblum
explained that the reason he was there was because of Pizzo's past as the leader of the,
Union in that area and because Pizzo presumably had a "close working relationship"
with Fisher. Pizzo "became livid." Rosenblum "could see his face turn red." After
Rosenblum finished, Pizzo stated "in a rather loud voice" that Rosenblum "was trying
to blackmail him." Rosenblum replied that he "could easily prove" that he was not
trying to blackmail him because he "had every intention of going to the D.A.," and
invited Pizzo to accompany him. Pizzo declined, stating "that if a member of his
Union had done something like this he would have to stand punishment and take the
consequences." At that point, Rosenblum left.
On cross-examination, Rosenblum testified as follows:
He admitted having remained in Pizzo's den for about 5 minutes, did not remember
if there was a television in the room, denied turning on the television, and did not
"remember" any reference to the television set. He would not deny that a reference
had been made "about the room being bugged," and testified that "there might have
been" such a reference. When asked if it was Pizzo or Rosenblum who made such
a reference, he testified, "I don't remember, more likely, Mr. Pizzo." He denied
pulling out a cigarette lighter when they got into Pizzo's car, did not remember if
there was a cigarette lighter in the car, denied turning the radio on, and did not
recall Pizzo saying anything about having to turn the ignition on to turn on the radio.,
When he was asked if there was any reference in the car "to bugging or devices for
eavesdropping or recording a conversation," he testified, "Not that I remember."
When counsel persisted and asked if he was testifying that there was no such conversa-
tion or that he did not remember whether there was or not, Rosenblum testified, "Not
that I remember. That is my answer." He denied having given Pizzo the alternatives
to which Pizzo had testified. At one point, he testified that he "may have" told Pizzo,
that there was in existence a tape recording of the incident at which Fisher was alleged
to have bought this alcohol; at another point, he testified that "I don't think I learned'
about the tapes until after the conversation. I am not sure."
c. Conclusions
I have previously found Pizzo to be a credible witness who testified in a straight-
forward and sincere manner which inspired confidence in the veracity of his testimony.-
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The manner in which Pizzo testified on this issue has confirmed my appraisal of his
credibility. I received a decidedly contrary impression of Rosenblum's veracity.
Particularly on cross-examination was he an unconvincing witness, at times displaying
a sudden loss of memory, equivocation, and a lack of forthrightness on important
questions, as well as sparring with the cross-examiner.
There are also additional factors which I have considered in appraising Rosen-
blum's veracity. In the first place, Rosenblum corroborated Pizzo's testimony in
several significant respects. Thus, Rosenblum admitted that a reference to "bugging"
might have been made when he was in the den, and refused to make a categorical
denial that such a reference was made by him. Rosenblum also admitted that after
he had finished talking to Pizzo in the car, Pizzo accused him of trying to blackmail
Pizzo. It is difficult to understand why such an accusation would have been made
unless Rosenblum had in fact made some unsavory proposition to Pizzo. Rosenblum
further admitted that Pizzo had responded by stating that if any member of his
Union did anything wrong he would have to stand the consequences. And finally,
Rosenblum admitted that he had with him a book of statutory law from which he
read the statute with respect to selling liquor to a minor. No explanation was offered
as to why Rosenblum deemed it necessary to come prepared to convince Pizzo that
Fisher had violated the law.
In addition, the reasons advanced by Rosenblum for being concerned or interested
in Fisher's alleged misconduct do not stand up under scrutiny. Rosenblum testified
that when Hedlund brought this information to his attention, he felt it his duty, as an
officer of the court, to report the alleged violation to the district attorney. However,
he admitted that he first had to do "some research into the law" before he could con-
clude that the alleged misconduct was a violation so as to bring "his duty to report"
into play. Moreover, he admittedly did this research before he even interviewed
Hedlund to verify the accuracy of the information. Such overzealousness is hardly
consistent with a mere feeling of a sense of duty to report a misdemeanor which has
been called to his attention. Indeed, his admission to Pizzo that as a result of his
research he "concluded this was a possible violation of law" [emphasis added], indi-
cates that he was not even absolutely certain that a violation of the law had in fact
been committed.
Furthermore, Rosenblum's alleged reason for deciding to call this matter to Pizzo's
attention is most unconvincing. Such action was wholly unnecessary to enable Rosen-
blum to fulfill his duty of reporting the matter to the district attorney's office. And
had Rosenblum made such a report, Pizzo would have had no way of knowing that
the information had been furnished by Rosenblum. His testimony that he wanted
to give Pizzo an opportunity to go with him to the district attorney's office just strains
credulity. It is completely refused by the fact that he first telephoned Pizzo's office
before even leaving his Albany office for Schenectady to find out from Hedlund
whether the information was accurate.8
Finally, Rosenblum's subsequent conduct is wholly incompatible and inconsistent
with his claim that his sole interest was to perform his duty of merely "reporting" the
matter to the proper authorities. After Rosenblum left Pizzo, he admittedly went
that afternoon to the district attorney's office to report that a "violation of law had
been called to [his] attention." 9 The district attorney advised that this was a matter
for Captain Monaco of the Youth Aid Bureau because a minor was involved. The
following week, Rosenblum admittedly called the matter to the attention of Captain
Monaco and "asked him to procede [sic] with this matter and investigate it." Rosen-
blum admittedly was "quite emphatic and forceful about it." When Rosenblum later
learned that no action had been taken, he again tried to contact Captain Monaco and,
in the latter's absence, complained to the next person in charge that this matter "was
being handled very inefficiently." He then sent a telegram to Captain Monaco, the
import of which admittedly was to "get on the ball." In addition to all the foregoing
activity, Rosenblum testified that "I called the State Liquor Authority, I wrote them
8 Rosenblum admitted that he might have called Pizzo at his office. Pizzo credibly testi-
fied, without contradiction, that he has an answering service at his office, that he re-
ceived a call that day from his answering service to the effect that a Mr. Sanford
Rosenblum was trying to reach him, that he immediately called Rosenblum's office and
was told by the secretary that he had left but could be reached at a certain number
within 15 or 20 minutes, that after waiting that period he called that number which
turned out to be Respondent's store and was told that Rosenblum was expected but had
not yet arrived, and that he called that number again about 15 to 20 minutes later, and
this time Rosenblum was called to the telephone.
O That afternoon, Pizzo also telephoned to the district attorney's office and made a
similar report.
NISKAYUNA CONSUMERS COOPERATIVE, INC. 179
a letter, I went to them, I talked to their attorney ." Rosenblum admitted that he
finally "was tired of trying" to "whip the public authorities" into taking action "on
this thing." Thus Rosenblum 's efforts went so far beyond what was required to ful-
fill this alleged feeling of an obligation "to report " an alleged violation to the proper
authorities , that it creates the impression of a disgruntled person seeking to take
reprisals as a matter of revenge.
Upon consideration of all the foregoing , I do not credit Rosenblum 's version of
what occurred when he was with Pizzo in the latter 's den and automobile to the
extent that it conflicts with that of Pizzo . I accept Pizzo 's version , hereinabove set
forth , and find that Rosenblum did make the statements and did engage in the con-
duct attributed to him by Pizzo.
C. Interference , restraint, and coercion
1. The conduct of Manager Hedlund
Although Hedlund testified that he was the acting manager of Respondent 's store,
he admittedly was the highest management representative stationed at the store.
Respondent admits in its answer , as amended , that Hedlund was an "agent of the
Respondent at the store , acting on its behalf," and a supervisor within the meaning
of Section 2(11) of the Act. The sole position taken by Respondent in its brief is
that none of Hedlund's conduct was violative of the Act. I do not agree.
a. With respect to Arthur Askew
In the presence of employees working in the area , Hedlund on two occasions on
August 17 angrily denounced Askew as being the instigator of the Union, stated that
he knew Askew had signed a union card, and warned that they did not want a union
in the store . Askew was thus put on the spot to defend himself against this bitter
accusation . It is significant that Askew felt it necessary to withhold the truth and
deny the accusation of being the instigator of the Union, admitting only that he
signed a card . Hedlund then made it clear that selection of the Union was incom-
patible with loyalty to Respondent . On the second occasion , Hedlund also called
in employee Vesta Sager to prove, in the presence of other employees, that Askew
had been organizing for the Union.
Hedlund 's conduct , under the circumstances and in the setting in which it occurred,
could reasonably be regarded by Askew, as well as the employees in the area who
observed and overheard it, as carrying an implied threat of reprisal if the employees
selected the Union as their bargaining representative . 10 I find that such conduct
reasonably tended to interfere with, restrain, and coerce the employees in the exercise
of their self-organizational rights in violation of Section 8(a)1(l) of the Act. I also
find that it further violated Section 8 (a) (1) of the Act because it reasonably tended
to create the impression among the employees that their union activities were being
kept under surveillance.11
b. With respect to limitations an talking to union organizers
Hedlund 's instructions to employee Sager not to talk to union people during work-
ing hours, as previously found, was clearly discriminatory in view of the permission
and assistance which he granted in connection with the antiunion petitions and dem-
onstrations, hereinafter detailed. Such disparate application demonstrates the dis-
criminatory nature and enforcement of such instructions, which I therefore find were
violative of Section 8 (a) (1) of the Act.12
c. With respect to the antiunion petitions and demonstrations
The antiunion petition , to which employee Diaz solicited signatures , was also
signed in about the middle by two admitted supervisors, Meat Department Manager
Wallace and Delicatessen Manager Fazzone. Hedlund admittedly was aware of the
petition and talked to Diaz about its presentation during the antiunion demonstration
10 Although this conduct is characterized in the complaint and by the General Counsel
as interrogation, I believe it more appropriately falls under the category of threats of
reprisals.
11 See, e g. , Opal Cliffs Food Center, 148 NLRB 301 ; Big Town Super Mart, Inc., 148
NLRB 595.
12 Cf. Standard Manufacturing Company, 147 NLRB 1608.
212-809-66-vol 155-13
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before the television camera. Hedlund permitted Diaz to solicit employee participa-
tion in the demonstrations on 2 days and gave her permission on both days to take
a large group of employees outside with her; permitted a large number of employees
to group by the delicatessen door on both days; permitted Diaz to inform the employ-
ees that he had granted them permission to leave the store for the purpose of the
demonstration; permitted the rescheduling of the break time to a busy period of the
day in order to facilitate employee participation in the antiunion demonstration; per-
mitted a majority of the employees in a group to leave their work stations unattended
while participating in the demonstration, despite the fact that the store was very
busy at the time, permitted the employees to remain outside during this demonstra-
tion for 15 minutes, which was 5 minutes more than the normal break time, and per-
mitted Diaz to remain outside for 10 minutes more than the normal break time, and
substituted himself and Respondent's accountant to perform work of employees who
were engaged in the demonstration.
I find that by the foregoing conduct, Respondent encouraged, assisted, and ratified
the antiunion petition and demonstrations and thereby engaged in interference,
restraint, and coercion within the meaning of Section 8 (a)( I) of the Act.13
2 The conduct of Respondent's Attorney Rosenblum
As previously found, on October 2, 1964, Respondent's attorney Rosenblum threat-
ened Union Representative Pizzo that he would see to it that Pizzo's associate would
go to jail for allegedly committing a misdemeanor by selling liquor to a minor, unless
Pizzo were to agree either to withdraw the then pending unfair labor practice charges
filed with the Board in the instant case or agree to a Board election. Employees have
a right, guaranteed by the Act, to engage in self-organizational activities free from
Respondent's interference, restraint, and coercion, to bargain through representatives
of their own choosing, and to resort to the Board processes for the enforcement and
vindication of such rights. Rosenblum's conduct in seeking to induce the Union to
withdraw the unfair labor practice charges was a direct interference with those rights
and an attempt to perpetuate the restraining effects of Respondent's prior misconduct
on employee organizational activity. I find that by such conduct, Respondent vio-
lated Section 8(a) (1) of the Act.14
D The refusal to bargain
1. The appropriate unit
In agreement with the parties, I find that all employees of Respondent employed
at its store, exclusive of office clerical employees, the meat department manager, the
delicatessen manager, guards, professional employees, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
2 The Union's status as exclusive bargaining representative
The parties stipulated that there were 27 employees in the appropriate unit at all
relevant times.13 The General Counsel introduced into evidence 16 authorization
cards signed by employees in the appropriate unit prior to August 17, 1964. The
Respondent in its brief attacks the validity only of the following five cards:
a. Jeanette Dutcher
Jeanette Dutcher testified that when Arthur Askew gave her a union authorization
card and solicited her signature, he told her that the Union had a good chance of
getting in and that if it did get in she might be one of the first ones to lose her job.
Askew specifically denied having made such a statement to Dutcher. I regard Askew
as a credible witness entitled to full credence. I credit Askew's denial and find that
he did not make the statement attributed to him by Dutcher.
13 Cf. Altamont Shirt Corporation, 131 NLRB 112, 116-117; Watertown Undergarment
Corporation, 137 NLRB 287, 299, 300
14 Lane Drug Stores, Incorporated, 88 NLRB 584, 586-587.
15 Respondent's efforts to attribute supervisory or managerial status to Arthur Askew
have been abandoned and such claims are no longer urged in Respondent's brief. In any
event, I find that the record does not support these contentions and that the said Askew
was employed as a meatcutter within the appropriate unit.
NISKAYUNA CONSUMERS COOPERATIVE, INC. 181
Dutcher further testified that after being solicited by Askew, she took the union
card home, discussed it with her mother, returned to work where she asked an
unidentified person if she had signed, received an affirmative reply from this uniden-
tified person, returned home and signed the card because of the affirmative reply she
had received from this unidentified employee, and thereafter returned her signed
card to Askew with whom she had no further conversation about it.
Upon consideration of all the foregoing, I find that Jeanette Dutcher's card is a
valid designation card for the purpose of determining the Union's majority status.
b. Karl Ives
Ives testified on cross-examination by Respondent's counsel that he thought David
Askew gave him the union card, that he asked David Askew what it was all about,
that David replied that "they were trying to organize a union because of the working
conditions as they existed then," that he then took the card and signed and returned
it to David. When asked by Respondent's counsel if he was not told that the cards
were like a show of hands and that there would be an election to determine whether
there would be a union, he testified, "Not in so many words, this is impression."
When asked by me to relate what David Askew did in fact tell him, Ives testified that
he said, "This was like a show of hands, an expression of desire ... that the Union-
we would like a union in the store, that we are not happy with what we have." There-
after Ives merely acquiesced in Respondent's counsel's leading questions which attrib-
uted to David Askew statements that the card "wasn't a permanent thing," that there
would be an election in which he would have the chance to determine if he wanted
a union, and that that would be "the final thing to decide." When asked by me if
David Askew said all that, Ives hedged and testified, "Well, yes, more or less. You
know, I wouldn't say it word for word, but that is essentially what he said."
Ives was a college sophomore. He testified that he read the card before he signed
it and that he knew what the words "Application for Membership" and "to authorize
somebody" meant. The only testimony which Ives gave on his own as to what David
Askew told him contains none of the statements embodied in the leading questions
of Respondent's counsel but is that Askew affirmatively stated that the cards consti-
tuted an expression of their desire for a union because of dissatisfaction with existing
working conditions I am convinced and find, from a consideration of Ives' entire
testimony in relation to the questions propounded and his demeanor on the stand,
that David Askew did not say anything about there being an election which would
be the final thing to decide if there would be a union, as embodied in the leading
questions of Respondent's counsel.16 Any other "impression" or interpretation which
Ives may possibly have had merely reflected, I am convinced, his afterthoughts or
subjective state of mind and not what the solicitor told him. And authorization
cards are not to be voided on the basis of the signer's subjective state of mind.17
I find that Karl Ives' card is a valid designation for the purpose of determining the
Union's majority status.
c. Luella Thompson
Luella Thompson testified that- Arthur Askew asked her if she wanted to join the
Union; she replied she did not understand anything about the Union and wanted more
information on it. Askew started to tell her about the benefits in having a union;
a few days later while she was working on the cash register, Askew gave her a union
card and said. "Here, this is the card for the Union"; she later glanced at it and then
signed and returned it to Askew
Thompson's subjective state of mind in signing the card "cannot negate the clear
statement on the card that the signer is designating the Union as his [her] organizing
agent." 18 Nor does the fact that she may not have read the card which was left in
her possession until such time as she decided to sign it, overcome her overt act of
signing the card and returning it to the solicitor who informed her it was a card for
the Union.1s
19 Moreover, even accepting the version urged by Respondent's counsel, it would not
impair the validity of the authorization card because it does not appear that Ives was
told that that would be the only purpose of the card Cumberland Shoe Corporation, 144
NLRB 1268, 1269.
17 Peterson Brothers, Inc., 144 NLRB 679, 682.
18 Gary Steel Products Corporation , 144 NLRB 1160; Peterson Brothers , Inc., supra
and Dan River Mills, Incorporated, Alabama Div ., 121 NLRB 645, 648.
19 Hunter Engineering Company, 104 NLRB 1016, 1020.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Luella Thompson's card is a valid designation for the purpose of deter-
mining the Union 's majority status.
d. Vincent Sloan
Luella Thompson credibly testified that Arthur Askew also gave her a union card
which he asked her to give to Vincent Sloan ; that she gave the card to Sloan; and
that she told Sloan, "Here is the card Art told me to give you about the Union.'
Sloan testified that he was a high school graduate , that he knew it was a card for the
Union , and that he read the first three lines on the card .20 He further testified that
he "concluded" that the card had something to do with finding out what the Union
can do, that he did not remember what words Luella Thompson used, but that she
did not say that the card was for the purpose of finding things out about the Union.
I find that Vincent Sloan 's card is a valid designation for the purpose of deter-
mining the Union's majority status.
When the above-found 4 valid designations are added to the 11 conceded valid
designations , they constitute 15 or a clear majority of the 27 employees in the appro-
priate unit. I therefore find it unnecessary to determine the validity of Respondent's
attack on the remaining designation card, that of employee Peggy Lowrey.
I find that at all times on and after August 15, 1964, the Union has been, and is,
the exclusive representative of all the employees in the above-found appropriate unit
for the purpose of collective bargaining within the meaning of Section 9(a) of the
Act.21
3. The unlawful refusal to bargain
Counsel for Respondent concedes in his brief that an employer may not lawfully
insist on a Board-conducted election before recognizing a union, upon the latter's
request, unless such denial of recognition is based upon a bona fide doubt as to the
union's majority status. He argues, however, that in the instant case Respondent
did have such a bona fide doubt in insisting that the Union first prove its majority
in a Board election. I do not agree.
Respondent's Store Manager Hedlund had inspected and counted the Union's
authorization cards which were presented by Union Representative Pizzo on August 17
and, without questioning their validity in any respect, at that time affirmed the
Union's claim of majority status. Pizzo called this fact to the attention of Respond-
ent's President Marshall that same day and later to each of Respondent's attorneys.
Neither Respondent's president nor its attorneys ever denied that this had in fact
occurred, ever questioned the accuracy or regularity of the card count, or ever ques-
tioned the validity of the cards. In addition, Pizzo each time offered to submit these
cards to an impartial person for a check against Respondent's payroll to prove the
Union's majority status. These offers were rejected on the sole ground that Respond-
ent did not wish to deal directly with the Union on this matter and insisted on a
Board election as the sole basis for proving the Union's majority status.
Meanwhile, contemporaneously with these refusals, Respondent engaged in unlaw-
ful conduct which tended to undermine the Union's majority status, as previously
found. This ranged from (1) Hedlund's coercive denunciation on two occasions,
in the presence of other employees, of employee Arthur Askew as the instigator of
the Union, while at the same time warning of Respondent's opposition to a union
and branding employees who designated the Union as disloyal to Respondent, to
(2) creating the impression among the employees that their union activities were
being kept under surveillance, to (3) encouraging, assisting, and ratifying the anti-
union petitions and demonstrations, to finally (4) Attorney Rosenblum's efforts, by
threats of reprisals, to induce Pizzo to withdraw the instant refusal-to-bargain charges.
20 The following are the three lines of the card which Sloan verified he had read by
reading it aloud on the witness stand.
I, the undersigned , employee of Niskayuna Co-op , Inc., employed as stock clerk,
hereby authorize the Amalgamated Meatcutters , Butcher Workmen , and Store Clerks
of North America , District Union Local #1, AFL-CIO, to represent me and, in my
behalf negotiate and conclude all agreements as to wages, hours , and all other con-
ditions of employment.
211 find that any subsequent possible numerical loss of majority status is attributable
to Respondent 's unfair labor practices , herein found , and therefore must be disregarded.
Franks Bros. Company v N L.R B , 321 U.S 702, Medo Photo Supply Corporation v
NLRB. 321 U S 678. 687
NISKAYUNA CONSUMERS COOPERATIVE, INC. 183
Under all the circumstances, Respondent could not lawfully insist on a Board
election as the sole means of testing the Union's claim of majority status. Accord-
ingly, I find that by refusing to recognize and bargain with the Union at all times on
and after August 17, 1964, Respondent failed to meet its statutory obligation and
thereby violated Section 8 (a) (5) of the Act.22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a)(5) and (1) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action necessary to effectuate the policies of
the Act.
As I have found that Respondent unlawfully refused to recognize and bargain with
the Union, I shall order Respondent, upon request, to bargain collectively with the
Union and, if an understanding is reached, to embody such understanding in a signed
agreement.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All employees of Respondent employed at its store in Schenectady, New York,
exclusive of office clerical employees, meat department manager, delicatessen man-
ager, guards, professional employees, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times on and after August 15, 1964, the Union has been, and still is, the
exclusive representative of all the employees within the aforestated appropriate unit
for the purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, or other terms and conditions of employment, within the meaning of
Section 9(a) of the Act.
5. By refusing to recognize and bargain collectively with the Union as such exclu-
sive representative at all times on and after August 17, 1964, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By such conduct and by the conduct detailed in section III, C, supra, Respond-
ent has interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
7 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record
in this case, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, I recommend that Respondent, Niskayuna Consumers Cooperative, Inc.,
Schenectady, New York, its officers, agents, successors, and assigns, shall:
1 Cease and desist from:
(a) Denouncing employees as union instigators or adherents or implying reprisals
for such activity, in a manner constituting interference, restraint, and coercion within
the meaning of the Act.
2e Joy Silk Mills , Inc. v. N.L.R.B, 185 F. 2d 732 (C.A D C.), cert denied 341 U.S. 914,
Fred Snow, Harold Snow and Tom Snow, d/b/a Snow & Sons, 134 NLRB 709, enfd 308
F. 2d 087 (C.A. 9).
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Leading employees to believe that it knows of their union activities or other-
wise creating the impression of surveillance of union activities.
(c) Discriminatorily issuing or applying instructions to employees about talking
to union representatives.
^d) Encouraging , assisting , and ratifying antiunion petitions and demonstrations.
(e) Attempting , by threats of reprisals , to induce union representatives to with-
draw unfair labor practice charges filed with the Board.
(f) Refusing to recognize and bargain collectively with Amalgamated Meat Cut-
ters, Butcher Workmen and Affiliated Crafts of North America , District Union Local
No. 1, AFL-CIO, as the exclusive representative of its employees in the following
appropriate unit:
All employees of Respondent employed at its store in Schenectady , New York,
exclusive of office clerical employees , meat department manager, delicatessen man-
ager , guards, professional employees , and supervisors as defined in the Act.
(g) In any other manner interfering with, restraining , or coercing its employees
in the exercise of the right to self-organization , to form labor organizations , to join
or assist the above-named Union , or any other labor organization, to bargain col-
lectively through representatives of their own choosing , to engage in concerted activi-
ties 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 might
be affected by the provisos in Section 8 (a) (3) of the Act.
2 Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Upon request , bargain collectively with the above -named Union as the exclu-
sive representative of the employees in the unit described above, with respect to
rates of pay , wages, hours of employment , or other terms and conditions of employ-
ment , and, if an understanding is reached , embody it in a signed agreement.
(b) Post at its store in Schenectady , New York, copies of the attached notice
marked "Appendix ." 23 Copies of said notice , to be furnished by the Regional
Director for Region 3, shall , after being duly signed by a representative of the
Respondent , be posted by it immediately upon receipt and maintained by it for a
period of 60 consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 3, in writing , within 20 days from
the date of receipt of this Decision and Recommended Order, what steps the Respond-
ent has taken to comply herewith 24
13 In the event that this Recommended Order be adopted by the Board, the woi ds "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 be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision and
Order."
211n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL, upon request, recognize and bargain collectively with Amalgamated
Meat Cutters , Butcher Workmen and Affiliated Crafts of North America, Dis-
trict Union Local No. 1, AFL-CIO, as the exclusive representative of all our
employees in the bargaining unit described below, with respect to rates of pay,
wages, hours of employment , or other conditions of employment , and, if an
understanding is reached , embody it in a signed agreement . The bargaining
unit is:
All employees at our store in Schenectady , New York, exclusive of office
clerical employees , meat department manager, delicatessen manager, guards,
professional employees, and supervisors as defined in the Act.
GRAND-CENTRAL CHRYSLER, INC. 185
WE WILL NOT denounce employees as union instigators or adherents or imply
reprisals for such activity, in a manner constituting interference, restraint, and
coercion within the meaning of the Act.
WE WILL NOT lead our employees to believe that we have knowledge of their
union activities, or otherwise create the impression that union activities of our
employees are under surveillance.
WE WILL NOT discriminatorily issue or apply instructions to employees about
talking to union representatives.
WE WILL NOT encourage, assist, or ratify antiunion petitions and
demonstrations.
WE WILL NOT, by threats of reprisals, attempt to induce union representatives
to withdraw unfair labor practice charges filed with the Board.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist the above-named Union, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, to
engage in other concerted 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 rights may be affected by the provisos of Section
8(a)(3) of the Act.
NISKAYUNA CONSUMERS COOPERATIVE, INC.,
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, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No.
842-3100
Grand-Central Chrysler, Inc. and Automobile Salesmen and Mis-
cellaneous Workers Union , Local 192. Case No. 13-CA-6634.
October 12, 1965
DECISION AND ORDER
On June 16, 1965, Trial Examiner Sidney J. Barban issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision and a
brief in support thereof, and the Respondent filed exceptions to the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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 Trial
Examiner's Decision, the exceptions and the,brief, and the entire rec-
ord in this case, and finds merit in the General Counsel's exceptions.
155 NLRB No. 20.