Northern Cap Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 27, 1964

146 N.L.R.B. 198 (N.L.R.B. 1964)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Failing and refusing to bargain collectively with the Union as the exclusive
representative of its employees in the appropriate unit with respect to any decision
to sell or otherwise terminate its operations.
(b) Refusing to bargain with the Union about the effects on employees in the
appropriate unit of any sale or other termination of operations.
(c) Refusing to supply the Union with information necessary for collective
bargaining.
(d) In any like or related manner interfering with , restraining, or coercing its
employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which will effectuate the policies of the
Act.
(a) Bargain , upon request, with the Union concerning the effects of the sale of
its Wheeling and Wellsburg plants on the employees in the bargaining unit.
(b) Notify the Regional Director for the Sixth Region , in writing , within 20 days
from the receipt of this Intermediate Report and Recommended Order, what steps
Respondent has taken to comply herewith.14
"If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for the Sixth Region, in writing , within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith."
Samuel Rafowitz and Chaim Bonk, d/b/a Northern Cap Manu-
facturing Co. and United Hatters, Cap and Millinery Work-
ers International Union, • AFL-CIO . - Case No. 18-CA-1664.
February 27, 1964
DECISION AND ORDER
On November 15, 1963, Trial Examiner Stanley N. Ohlbaum is-
sued his Decision 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 Charging Party filed exceptions to the Trial Ex-
aminer's Decision.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman, McCulloch and Members Leedom and
Brown].
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 Charging Party's exceptions, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,'
conclusions, and recommendations.
[The Board dismissed the complaint.]
'The Charging Party has excepted to the credibility findings made by the Trial Ex-
aminer. It Is the Board 's established policy, however , not to overrule a Trial Examiner's
resolutions with respect to credibility unless, as is not the case here , the clear preponder-
ance of all the relevant evidence convinces us that the resolutions were incorrect.
Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F . 2d 362 (C.A. 3).
146 NLRB No. 22.
NORTHERN CAP MANUFACTURING CO. 199
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed May 9, 1963, by United Hatters, Cap and Millinery Workers
International Union, AFL-CIO, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Regional Director of the Eighteenth
Region, on August 21, 1963, issued a complaint against Samuel Rafowitz and Chaim
Bonk, d/b/a Northern Cap Manufacturing Co., herein called the Respondent or
Employer, alleging violations of Section 8(a)(1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended, herein called the Act, by reason of
interrogations of employees concerning union membership applications, and threats
of discharge for union activity. Respondent's denial of these allegations resulted in
issues litigated fully before Trial Examiner Sidney N. Ohlbaum at a hearing on
October 14, 1963, in' Minneapolis, Minnesota, throughout which all parties par-
ticipated by counsel. Although given the opportunity to submit proposed findings,
conclusions, and briefs, counsel elected not to do so. At the conclusion of the
hearing, closing argument was made by Respondent's counsel but not on behalf of
General Counsel.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDING AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
At all material times, Respondent has maintained- its principal office and place
of business in Minneapolis, Minnesota, engaged in manufacturing and jobbing caps,
involving, during the 12-month representative period prior to issuance of the com-
plaint, sales of $325,000, of which $235,000- were interstate, and also purchases
upwards of $200,000, of which $195,000 were interstate. Respondent has at all
such times been and is, an employer engaged,in commerce,within the meaning of
Section 2(6) of the Act.
II. -THE LABOR ORGANIZATIONS INVOLVED
At all material times, United Hatters, Cap and Millinery Workers International
Union, AFL-CIO, and Cap Makers Union Local 38, of United Hatters, Cap and
Millinery Workers International Union, AFL-CIO,' have been ad are labor organi-
zations within the meaning of Section 2 (5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES-ALLEGED INTERROGATIONS AND
THREATS OF DISCHARGE
A. Evidence adduced,by General Counsel
Paragraph 6 of the complaint alleges that "On numerous occasions beginning on'
or about May 3, 1963, the Respondent, by its partners, agents, and supervisors; has
interrogated its employees concerning their applications for membership in the
Union and has threatened ,to discharge its employees who desired to have the Union
as their collective bargaining agent."
Of Respondent's total of approximately 20 employees (including 10 to 12 sewing
machine operators, of whom 9 are said to have signed union membership applica-
tion cards prior to the events with which 'we are here concerned), 4 testified. Of
these four,,one (Pomeranc) in effect denied knowledge of any material facts, thereby
for practical purposes reducing the number of General Counsel's witnesses to three;
namely, Juanita Leon, Ana Torrico, and Feliksa Mazurek?
1. Juanita Leon
Juanita Leon, a sewing machine operator in Respondent's employ for over 2 years,
speaking in broken English nand qualifying her testimony by the statement, "I don't
'The latter was added without opposition at the hearing, upon motion by General
Counsel to amend the complaint. As in the complaint as thus amended, these two entities
are collectively referred to herein as the "Union." ,
2 Respondent Bonk was also called as a witness by General Counsel, as were Drucker, a
union official, and Abels, a local organizing aid. Abels merely testified to her organizing
activities. The testimony of Bonk and Abels is alluded to below.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remember too well ," testified that on a morning 2 or 3 days after she signed a
union membership application card ,3 Respondent Bonk asked her at her machine
in the shop whether she had signed an application to join the Union, and she told
him that she, as well as other girls , had, whereupon Bonk remarked , "Well, I can't
stop you to join the Union if you want. But if you sign the application , you can't
work in this shop ." 4 She further testified that 2 or 3 days later-subsequently,
saying she "got mixed up," she corrected this so as to state it was the same day as
the conversation at her machine-Bonk addressed some remarks to a group of
employees , including herself, in the shop . When she was asked on direct examina-
tion what Bonk said , she stated , "Well, I was there , but I was very upset, and I
couldn 't remember what." On cross-examination , this witness conceded that there
have been occasions when she has become so nervous, ill, and upset that her
employer has had to send her home in a taxicab . She admitted that on the occasion
when Bonk spoke to her as described , she was also overcome with this same extreme
nervousness . Asked whether Bonk had not then as on previous occasions said to
her-rather than what she had testified to on direct examination-merely that she
could not work in that condition , she conceded , "I don 't remember" and admitted
(as was apparent to the Trial Examiner during the course of her testimony) that
when she becomes nervous and upset she has difficulty in understanding and
following a conversation . She admitted that because of her extreme nervousness
at.the time in question she might , have misunderstood what Bonk was driving at.
It was apparent to the Trial Examiner that although this witness is able to read
English satisfactorily , she speaks a broken English and her comprehension of the
spoken language leaves much to be desired . It was also obvious to the Trial Ex-
aminer that this witness does indeed appear to be afflicted with extreme nervousness
and discomfiture of such overwhelming degree as for practical purposes to be
inconsistent with normally meaningful interaction or communication , or reliable
recollective processes.5
2. Nathan Pomeranc
Also called as a witness by General Counsel was Nathan Pomeranc , who, testi-
fying through an interpreter, stated that he is employed by Respondent as an opera-
tor, and that on several occasions around May 1963 he was visited at home by
union emissaries , at whose behest he signed a union membership application card.
He swore that he had no conversation with Respondent relating to the Union. He
also swore that although he was present on the occasion when Bonk directed some
remarks to employees in the shop , "I didn't hear , because I don 't understand English,
but my ears heard , but I didn't understand .. The shop is large , and I was at
another end of the shop , and I didn 't understand ." At this point, counsel for the
General Counsel excused this witness.
3. Ana Torrico
Ana Torrico, recently from Bolivia and another operator in Respondent 's shop,
testified that after numerous visits by organizers to her home she signed a union
membership application card 3 or 4 days after which Bonk called her to his office
and asked her whether the Union had visited her at her home and whether she had
signed some papers , to which she replied in the negative , ending the conversation.
She testified she signed the card on the day it is dated , i.e, May 2, 1963. Since that
was a Thursday , her recollection as to a conversation with Bonk at the plant 2 or 3 days
thereafter was imprecise, since that would have been on Saturday or Sunday. Her
recollection as to the card she signed was also faulty. She described it as "a small card"
which she though was "yellow or pink." The card ( General Counsel 's Exhibit No. 2) may
or may not be what most people would consider to be small , but it is certainly neither
yellow nor pink.
* It is undisputed that at this time she had already signed the application . It is further
undisputed that at no time has she ( or any other employee who signed a union applica-
tion card ) been discharged or in any way discriminated or retaliated against by reason
thereof
5 1n fact, she was so overcome with nervousness at the hearing, among other things
literally "shaking like a leaf," that at the suggestion of counsel for the General Counsel
a recess was essential in order to afford her an opportunity to attempt to regain suffi-
cient composure to be able to continue with her testimony.
NORTHERN CAP MANUFACTURING CO. 201
She then testified that she was confused as to whether Bonk spoke to employees in
the shop before or after this conversation with her , first stating it was before,
then after, then the same day (a Monday), and then that she did not know. The
flavor of this witness' testimony may be assayed from the following colloquy on her
direct examination:
Q. Were you present at the meeting?
A. Yes.
Q. Did you hear Mr. Bonk speak? Did you hear him speak?
A. Yes, I hear him speak. I don't understand the all when I speak to Mr.
Bonk.
TRIAL EXAMINER: You don't understand what?
A. The all talk about the Union-about Mr. Bonk I don't understand the
all-no.
She then stated that although Bonk said to this group in the shop, with herself at
her machine 18 to 20 feet from him, that "When the people belong the Union, don't
work any more in my factory," he also said many other things which she was unable
to understand.
It was apparent to the Trial Examiner that the knowledge of English of-this witness
was quite limited in all aspects , including speaking and comprehension. Her testi-
mony was to an extent characterized by contradictions and inconsistencies, which
the Trial Examiner is willing to ascribe in whole or in part to her poor comprehen-
sion of English, although, to be sure, with a degree of reservation as to her credibility
because of certain answers to questions which it seems reasonable to assume she
understood .6
4. Feliska Mazurek
Feliksa Mazurek, also one of Respondent 's operators , testified for the most part
in Polish, through her son-in-law, a trade unionist who had filled out the blanks
and participated in procuring her signature on a union membership application
which she testified she could neither read nor recognize, and which she swore
variously that she signed at home or at work. She testified that she did not speak
with Bonk after signing this card, but that 3 or 4 days later Respondent's supervisor,
Sherman, said to her that everybody had told him that she signed a union card
and was it true, to which she replied she had not. She further stated that she was
present, also 3 or 4 days after she signed the card , when Bonk spoke to some
employees in the shop, and that "As far as I was able to understand, Mr. Bonk stated
whoever wants to belong to the Union can go where there is Union. However, he
says, whoever does not want to belong to the Union is quite welcome to remain
to work for me; that is, Mr. Bonk." She testified that other than calling for questions
(and that there were none ) Bonk said nothing else at this "meeting."
It was apparent from the testimony of this witness at the hearing that not only
is her understanding of English extremely limited, but that she is illiterate or
substantially so. This being the case, her testimony with regard to Bonk's alleged
statements in English to his employees must be treated with a high degree of reserve
and her general credibility assessed correspondingly . There was no Polish inter-
preter present when Bonk spoke in the shop, and according to this witness nobody
told her in Polish what Bonk had said, and she herself limited her understanding
of what he said, or rather of what she thought he said, to only "I understand a little
bit"; and she later testified (spontaneously in English) that Bonk's words were, "Like
this. Who wanted belong to Union can fight this place or this Union. Who wanted
to work here, can work here." 7 She further testified that at this "meeting" Bonk
did not say that he could not stop his employees from joining the Union if they
wanted to but that if they signed the application they could not work in that shop.
She, like the others, is still working there.
6 Such as that nobody spoke about what Bonk had said; and (at first ) that she did
not know what she was going to testify about.
4 This attempted or approximate recreation of Bonk's precise words has great potential
significance in this case, particularly in the context of the English language shortcomings
of the speaker as well as the audience, since such a statement-as thus quoted or re-
created by Mazurek-by Bonk to his employees Is consistent with the version or interpre-
tation advanced by Respondent ; namely, that Bonk conveyed to his employees their right
to join or not join the Union, without fear, and that all who wished to could continue to
work there whether or not they joined.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respondent's version of events
Respondent Bonk testified that on his return on a weekend in early May 1963
from an out-of-town business trip, his partner and others apprised him of union
organizational activity.8 He stated that on the following Monday morning, while
in the shop taking a pill, he observed his employee Juanita Leon "just sit[s] by the
machine, and kind of sinking a little back" and that she appeared to be "very
nervous, but at the machine she was sitting and shaking .9 I asked her how she
feels, and `what makes you so nervous.' Then she told me that the Union was in
her place, and she signed a card, and she started to get so nervous I stopped talking
to her.10 I said: `You can't work in that condition. You had better take a rest.' .. .
That's the entire conversation." 11 Bonk unequivocally denied that he on this or
any other occasion told Juanita Leon that she could not work in his shop if she
joined the Union; and he insisted that on this occasion-as well as in similar instances
in the past-he merely indicated to her that she was in no physical condition to
work at the time, because she was in the throes of an attack of her nervous affliction.
He testified that he had been warned by her physician and her family to be on the
lookout for these nervous attacks, manifested by throwing the head to one side and
the other; that on previous occasions she had been placed on a couch or sent home
in a taxicab upon her exhibiting these manifestations of her malady; that on this
particular occasion she was made to lie down in his office for an hour "while she
had the attack to quiet her down"; and that because these attacks, which were
recurrent and frequent, were frightening spectacles to other employees in the shop,
he had decided to dispense with her services, but upon the intercession of her
physician and daughter he had continued to keep this apparently disabled person
on the payroll for compassionate reasons. "And that's the reason why I came to
her machine and asked her how she feel, and I saw that she is a little bit kind of
nervous."
With regard to Ana Torrico, Bonk testified that she had been after him for
another raise, and he called her into the office to discuss it. Having noted her
evident discomfiture over something while sewing at her machine, he said, ". .
what's wrong with you? You just trembling by the work. I don't know what is
going on," to which she replied that the "Union is after [me]" and that the "Union
bothered [me] for signing a paper,12 but [I] didn't sign." 13
On the subject of the remarks addressed by him to some of his employees in the
shop, Bonk testified that he did indeed speak to about 10 of them there among their
machines,14 because of an observed restlessness which was interfering with their
work. As he put it, "They was kind of afraid of something. The reason I said,
well, I will just talk to them and I will straighten them out. They shall go back
to the machinery, and not to get running around and talk each to .the other, and
not to get nervous about it." He told these employees that he was aware that union
representatives were calling on them at home to organize a union shop; 15 not to
8 The union organizational activity was so open, undisguised, and relatively widespread,
that there is no doubt in my mind that it was a matter of common knowledge, and I
so find.
9 As already indicated in another connection, this employee (Juanita Leon) gave a
convincing demonstration of this behaviorism at the hearing, under observation of all, at
one point necessitating suspension of her testimony.
10 See footnote 9, above
"It will have been noted that under Bonk's version of this episode, which I credit for
reasons detailed below, employee Leon of her own accord volunteered the information about
having joined the Union, without "interrogation" by her Employer
12I am convinced, and find, that in the particular idiom quoted, "for signing a paper"
means "to sign a paper." _
13 Here again, it will have been noted that under this version, which Bonk adhered to
consistently on cross-examination, and which for reasons explained below I credit, the in-
formation on the subject of union membership was volunteered by the employee, rather
than educed through interrogation by the Employer.
14 Bonk speaks a broken English of an idiomatic and dialect variety (Yiddish) different
from that of Juanita Leon and Ana Torrico (Spanish) and that of Feliksa Mazurek
(Polish). When Bonk made his remarks to this group in the shop, as he expressed it:
"I speak in some English language." The basic, first, or customary language of most of
the employees is other than English
15 He testified that he had learned this from Juanita Leon and Ana Torrico, as above
described, as well as from his partner Rafowitz.
NORTHERN CAP MANUFACTURING CO. 203
be afraid , but let them in ; 16 that all in the shop used to belong to the Union, and
that it was no crime to belong to the Union ; and that they should make up their
own minds what to do ,17 "but if they call on you, just let them in and don't be afraid."
It is not questioned that this was the one and only occasion on which he , or any-
body else on behalf of Respondent, spoke to the employees on this subject.
C. Resolution of credibility
The testimony adduced in support of the complaint in ,this case was for a variety
of reasons unimpressive . Perhaps prominent among these reasons was the language
factor, resulting in an unsuccessful effort by witnesses to recreate words, turns of
phrase, and meanings conveyed by an employer speaking in his particular variety
of English dialect to employees either ignorant of that language , untutored in that
dialect, or versed in their own particular varieties of miscellaneous English dialects.
Although in the case of all of the employee witnesses this language factor was
overriding and in itself sufficient to persuade me to view their statements with grave
reserve , in the case of each there were additional reasons for rejection of their
testimony . Thus, as has already been sufficiently indicated , employee Juanita
Leon is unquestionably the victim of some form of "nervous" affliction impeding
her capacity to communicate , cerebrate , and remember . Other things being ap-
proximately equal, I cannot regard the testimony of such , a witness in quite the
same way as that of a witness not so afflicted . Since she concededly suffered a
total lapse of recollection as to Bonk 's remarks to the grouped employees , her con-
tribution to General Counsel 's case was limited to her attempted reconstruction
of her selectively recollected conversation with Bonk at her sewing machine, with
no other person present . But this must be evaluated within the frame of reference
of her testimonial concessions that she cannot remember well, was confused, and
might indeed have misunderstood what Bonk said or meant . Even had she not
made such significant concessions , I could not possibly be justified in preferring the
uncorroborated testimony of such a witness to that of Bonk , seemingly a normal
person , who impressed me as candid and straightforward under oath , and much of
whose testimony was neither contradicted nor disputed . I accordingly credit and
believe Bonk 's testimony that on the Monday early in May 1963 , when he returned
from an out-of-town business trip , while in the shop he observed Juanita Leon in
or about to go into one of her usual nervous attacks , and that he approached her
for that reason ; that, without being asked, she volunteered the information to
him that she had joined the Union ; that, since she appeared to be on the verge of
one of her recurrent nervous seizures , he told her she was not in a condition to
work at that particular time, and-as on previous occasions-he arranged for ,her
to lie down until she recovered . I find that the credible evidence fails to establish
that Bonk , or anybody else on Respondent's behalf, at any time interrogated or
threatened Juanita Leon with discharge on account of or in relation to union
membership.
Since, in the case of employee Nathan Pomeranc , his own uncontroverted testi-
mony establishes that at no time did he have a discussion with Respondent about
the Union, and that he either did not hear or did not understand, or that he neither
heard nor understood , Bonk's remarks to the grouped employees in the shop,
I find that the evidence likewise fails to establish any interrogation or threat of
discharge of Pomeranc by Respondent at any time.
Although employee Ana Torrico 's comprehension of English appeared to me to be
considerably more limited than even that of Juanita Leon , her testimonial quality
was further impaired by inconsistencies and, it seemed to me , her significant con-
cession that of many things which Bonk said to his shop employees at the "meet-
ing," she could understand only the one to which she testified , and her possible
16 He testified that some of the employees said, "They was in my house . I didn't even
want to let them in" and "eight of them was in my house, and they forced me to sign."
He further testified that when "Some people t1 e., his employees ] saying they close the
door, and they were afraid ," he told them "they should not get scared and shall let in
the Union .... If the Union calls on them , they shall let them in ." This testimony
was not disputed.
17 He volunteered spontaneously at the hearing that he also told this group-as be had
his employees on previous occasions-that if any of them had bad working conditions,
didn't feel like working there, or felt mistreated , he was free to leave. Of this freely
and candidly volunteered remark, uttered in his characteristic loose idiom , he said in a way
which while under my close observation I found convincing, "And maybe they understand
me a different way. This is not my-the way what they blamed I said."
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further qualification that (as she expressed it), "They all talk about the Union-
about Mr. Bonk I don't understand the all-no." Her credibility was further im-
paired in my eyes because of answers, which I cannot credit, to certain questions
which I believe she understood.18 Comparing her testimonial quality with that
of Bonk, I have no hesitation in preferring Bonk. I accordingly find that, as testified
by Bonk, Ana Torrico of her own accord, without being questioned on that subject
by Respondent, volunteered the information to Bonk that she had been solicited
to join the Union but had not joined; and that the credible evidence fails to establish
that she was at any time interrogated or threatened with discharge by Respondent
on account of or in relation to union membership.
So far as employee Feliksa Mazurek is concerned , I was supremely unimpressed
with her quality as a witness . Testifying through her son-in -law (who had filled out
her union membership application card-she is for practical purposes illiterate) as a
Polish interpreter, and insisting she could not understand English, she nevertheless
purported to have been able to understand and remember what Bonk said to his
employees in that language ( and particularly in his mangled dialect thereof). How-
ever, when she testified (in English, spontaneously) to her best approximation of his
exact words, the sense of those words-as indicated above-was not inconsistent
with Bonk's testimony as to what he said and meant; namely, that his employees
should make their own choice as to whether to join the Union or not , but that all
could continue to work there regardless of the choice made . I find that the credible
evidence fails to establish that Feliksa Mazurek was at any time interrogated 19 or
threatened with discharge by Respondent for or in connection with union membership.
In contrast to these employee witnesses , I was favorably impressed by Respondent
Bonk as a witness . Notwithstanding his linguistic imprecision-which was very
much less than that of the employee witnesses-he testified with an assurance,
consistency, and outspokenness which carried conviction. Faced with the alterna-
tives of crediting the employee witnesses or Respondent Bonk , I do not find it possible
to accept these employees ' version 20 (or interpretation , as linguistically articu-
lated) 21 of what took place. Issues of credibility are therefore resolved in favor
of the version of the events testified to by Respondent Bonk.22
1s See footnote 6, above.
19 Although employee Mazurek testified that she had not discussed the Union with Bonk,
she stated that a few days after she signed the union membership application card, Re-
spondent ' s shop foreman , Sherman, remarked to her that "Everybody tells me you signed
the card to join the Union. Is that true?" to which she replied that she had not. Al-
though in the overall context of the case as a whole, I would not be disposed to regard as
unlawful "interrogation" this random , isolated remark relating to a fact which was com-
mon knowledge throughout the shop, nevertheless , still more basically , because of my
evaluation of the testimonial demeanor of this witness as closely observed by me, I cannot
accept and therefore discredit her testimony in this regard.
20 Since, observing their deportment and demeanor while testifying , and on the whole
record of their testimony , I found them to be unreliable witnesses , I am unwilling to
accord probative value to those portions of their testimony which are denied and un-
corroborated by objective circumstances or the testimony of other credible witnesses.
Cf. Hot Point Co., a Division of the General Electric Company, 120 NLRB 1768, 1772;
Standard Dry Wall Products, Inc., 91 NLRB 544, 545.
' "The final stage at which the witness ' account may be distorted Is in its articulation.
After 'be has seen , interpreted , and recalled the incident , be must convert his mental image
into words that will communicate this image to his hearers . This translation of images
into words leads to two kinds of distortion : the use of words creates a compulsion to fill
in the gaps in a narrative, and gives no Indication to the listener of how clear to the
witness is the Image that he is reporting. Words fail to describe accurately the strength
of perception of what they describe. For instance, if the witness says, 'It was raining
and I wore my rubbers ,' we cannot know whether he recalls one of those facts and Infers
the other, recalls both, or has deduced both from a third recollection, e.g., that he saw
people carrying umbrellas ." Marshall , Evidence, Psychology, and the Trial: Some
Challenges to Law, 63 Colum. L. Rev. 197, 217-218 (1963). ". . . the facts disputed in
litigation are not random unknowns in isolated equations-they are facets of related
human behavior, and the chiseling of one facet helps to mark the borders of the next.
Thus, in the determination of litigated facts, the testimony of one who has been found
unreliable as to one issue may properly be accorded little weight as to the next."
N.L R.B. V. Pittsburgh S.S. Company, 337 U.S. 656, 659.
=This result is unaffected by the testimony of General Counsel's witnesses other than
employees of Respondent ; namely, Abels and Drucker. Abels merely testified to union
organizational activities at the homes of Respondent's employees. Drucker, a union
NORTHERN CAP MANUFACTURING CO. 205
D. CONCLUSIONS
In view of my findings rejecting the version of events put forward by General
Counsel 's witnesses and accepting , instead , that of Respondent , I am compelled
to the conclusion that General Counsel has failed to sustain the burden of proof,
which is his,23 of establishing the allegations of the complaint by a preponderance
of the substantial 24 credible evidence. In the aggregate , the slender reeds of weak,
conflicting , equivocal , and linguistically inept testimony of his witnesses , each of
dubious credibility , are insufficient to support the superstructures of the allegations
of the complaint . 25 In the context of the situation as a whole, neither interroga-
tion , nor threat of discharge or reprisal , nor coercion , nor a background of unfair
labor practices is revealed . Two employees of their own accord spontaneously
conveyed to the Employer the fact that they had joined the Union , which he
anyway knew since it was common knowledge . It is not violative of the Act
for an employer to listen to or receive information from the employees indicating
that they have joined a union , where, as here , the information is not conveyed as a
executive , testified to an alleged conversation with Respondent 's shop foreman , Sherman,
who I find was at all material times a "supervisor" of Respondent within the meaning of
Section 2 ( 11) of the Act . According to the testimony of Drucker , who appeared formally
at the hearing as the representative of the Charging Party, while in Minneapolis on the
evening of May 13, 1963 , he visited the home of Sherman , introduced himself, ascertained
that Sherman was still a member of the New York City local of the Charging Party and
still considered himself a union man , and elicited from him an admission that he ( Sherman)
was present when Bonk spoke with a group of employees in the shop "threat [ening] the
jobs of the people who remained loyal to the Union ." In evaluating the foregoing in its
context, however , it is to he noted that the characterization of Bonk's remarks as quoted
from Drucker's testimony ( i e., as "threat [ ening] the jobs of the people who remained
loyal to the Union" ) was that of Drucker and not of Sherman ; and, further , that Sherman's
response thereto, according to Drucker 's testimony, was that although Bonk allegedly
"did" (in any event , a conclusion on somebody 's part ), "but he [Bonk ] didn't mean any-
thing" [ gesturing ]. In the context of the credible proof as a whole, I am unable to base
any finding or conclusion as to Interrogation , threats, or violation of the Act upon specu-
lation concerning such testimony as this.
Respondent 's counsel moved to strike from the record Drucker 's testimony regarding this
alleged conversation with Sherman on the grounds that it was hearsay , irrelevant, and
immaterial , without proper foundation , unconnected , and because there was no proof that
Sherman had authority to make such alleged admissions on behalf of Respondent. The
testimony was received subject to connection , and decision on Respondent 's motion was
reserved . The testimony , which Is clearly relevant and material , was connected by proof
of Sherman ' s supervisory status vis -a-vis Respondent and his presence at the place and
time In question . I am well aware of the principle so aptly expressed by Morgan that "It
is necessary to distinguish sharply between authority to do an act or to deal with a
specified matter and authority to talk about It. The latter is usually a requisite of ad-
missibility of statements made by the agent." ( 2 Morgan, Basic Problems of Evidence 272
(June 1961 ed.) ; see also Restatement ( Second ) Agency sec . 288(1 ).) However, over-
looking for the moment the possibility that Drucker was quoting a conclusion on Sherman's
part as to what Sherman thought Bonk did or did not mean, if Sherman-whose super-
visory status was, as I have found, established-was merely stating what he himself had
heard, it is not clear that there is necessarily involved a question as to the authority of
an agent to make admissions on behalf of his principal . In view of the mootness of the
question resulting from my findings that Drucker's testimony would in any event leave
my other findings and conclusions , and of course my decision , unchanged , Respondent's
motion to strike from the record his testimony , so far as it pertains to this alleged con-
versation with Sherman, Is denied.
23 Administrative Procedure Act, 79th Cong., P.L . 404, ch. 324 , sec. 7(c) ; Attorney
General's Manual on the Administrative Procedure Act 75 ( 1947 ) ; 2 Davis, Administra-
tive Law Treatise sec. 14.14 ( 1958) ; Consolidated Edison Co. of New York , Inc. v.
N.L.R.B., 305 U S. 197, 230; Blue Flash Express , Inc., 109 NLRB 591, 592.
24 Administrative Procedure Act, supra, footnote 23, sees. 7(c) and 10 (e) ; 4 Davis,
op. cit. supra, footnote 23, sees. 29.01 and 29.012; IX Wigmore , Evidence sec. 2494, p. 300
(3d ed. 1940 ) ; Consolidated Edison Co. of New York , Inc. v . N.L.R.B., supra, footnote 23,
at 229, 230 ; Willepoint Oysters v . Ewing, 174 F . 2d 676, 690, 691 (C.A. 9 ) ; N.L.R.B. v.
Bell Oil & Gas Co ., 98 F. 2d 406, 410 ( C.A. 5) ; N.L.R.B. v . A. S. Abell Co., 97 F. 2d
951, 958 (C.A. 4).
25 Cf. Interstate Hosts, Inc., 130 NLRB 1614 , 1619 ; Blue Flash Express , Inc., 109
NLRB 591, 592, 594.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of interrogation by the employer.26 The Employer's statement to the group of
employees to whom he directed some remarks in the shop to the effect that the deci-
sion was theirs to make as to whether or not to join the Union, indicates, at worst,
ambiguous expression consistent with noncoercive intentions on the part of the Em-
ployer.27 There is no evidence of any general , systematic, frequent, or widespread
interrogation ; there is no credible evidence of threats of discharge for union activity;
there is no background or climate of unfair labor practices ; and there is no claim
that there has at any time been even a single instance of discharge , reprisal, or dis-
crimination because of union membership or activity.28 It might additionally be
considered that the alleged employer action which could be pieced together from
the weak testimony of the witnesses may be viewed as hardly more than isolated
and therefore either not unlawful or as a practical matter not warranting issuance
of a cease-and-desist order,29 in the total texture of the cease.30
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. United Hatters , Cap and Millinery Workers International Union, AFL-CIO,
and Cap Makers Union Local 38, of United Hatters , Cap and Millinery Workers
International Union, AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. Respondent has not engaged in any of the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
Of. True Temper Corporation , 127 NLRB 839, 842. As Indicated , this information
was a matter of common knowledge around the shop. Cf. Charlton Press, Inc ., 129 NLRB
1352, 1357. Improper motivation on the part of the employer may not be inferred from
the mere fact that he knew of union activity by his employees . Lucille of Hollywood,
93 NLRB 37, 38.
n Cf. Acme Boot Company, Inc ., 131 NLRB 1371.
28 Nor is there reason to believe that the same would not be true for other of Respond-
ent's employees who might elect to join the Union.
29 Cf. Interstate Hosts, Inc., 130 NLRB 1614 , 1619 ; Charlton Press, Inc., 129 NLRB
1352, 1357; The Great Atlantic & Pacific Tea Company, Inc ., 129 NLRB 757, 760: Gibbs
Automatic Division, Pierce Industries , Inc., 129 NLRB 196, 198; Lenox Plastics of P.R.,
Inc., 128 NLRB 42, 44; Hot Point Co., a Division of the General Electric Company, 120
NLRB 1768 , 1772; Haleyville Textile Company , Inc., 118 NLRB 1157, 1158 ; Blue Flash
Express, Inc., 109 NLRB 591. The foregoing cases Involved isolated interrogations. The
same is true of an isolated veiled threat . The Frohman Manufacturing Co., Inc., 107
NLRB 1308, 1315.
30 A case of unfair labor practices cannot be made out through cannibalizing a patch-
work from among the defective recollections , contradictions , and conflicting equivocations
of unsatisfactory witnesses. Cf. Interstate Hosts, Inc ., supra, footnote 29, at 1619;
Blue Flash Express, Inc., supra, footnote 29, at 591, 592, 594.
Square Binding and Ruling Co ., Inc. and New York Paper Cutters
and Bookbinders Union No. 119, International Brotherhood of
Bookbinders, AFL-CIO. Case No. 2-CA-9299. February 28,
19641
DECISION AND ORDER
On October 28, 1963, Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
146 NLRB No. 21.