Perfection Macaroni Co.

National Labor Relations Board - Board Decisions

Jun 11, 1971

191 N.L.R.B. 82 (N.L.R.B. 1971)

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fresno Macaroni Manufacturing Co., Inc . d/b/a Per-
fection Macaroni Company; West Coast Macaroni
Manufacturing Co., Inc . d/b/a Perfection Macaroni
Co. and Retail Clerks , Union, Local 1288 , Retail
Clerks International Association , AFL-CIO. Case
20--CA-5991
June 11, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On March 24, 1971, Trial Examiner Maurice M.
Miller issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. There-
after, Respondent filed exceptions to portions of the
Trial Examiner's Decision, and a brief in support of its
exceptions. The General Counsel has filed cross-excep-
tions, with a supporting brief, to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Fresno Macaroni Manufacturing Co., Inc. d/b/a Per-
fection Macaroni Company; West Coast Macaroni
Manufacturing Co., Inc. d/b/a Perfection Macaroni
Co., Fresno and Oakland, California, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order, as
modified below.
' In its answer to the complaint, Respondent admitted the allegations,
contained in par II of the complaint that during the past year, Respondent,
in the course and conduct ofits business operations in California, purchased
and received goods and materials valued in excess of $50,000 directly from
suppliers located-outside the State of California
1. Delete paragraphs 1(a) and (b) of the Trial Ex-
aminer's recommended Order and insert the following:
"(a) Promising employees a company-sponsored,
noncontributory retirement plan, company assumption
of premium payments for employees' dependents'
medical insurance coverage, and substantial raises; and
suggesting to employees that they might be promoted
or other favorable changes made with respect to the
terms and conditions of their employment, for the pur-
pose of dissuading them from seeking or retaining
union representation.
"(b) Making effective, as previously promised, a
company-sponsored, noncontributory retirement plan,
company assumption of premium payments for em-
ployees' dependents' medical insurance coverage, and
substantial increases in salary, or other favorable
changes in the terms and conditions of employment, for
the purpose stated above."
2. Substitute "20" for "10" days in footnote 3 of the
Trial Examiner's Decision.
3. Substitute attached Appendix A for Trial Ex-
aminer's Appendix A.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has
been determined that we violated the law by commit-
ting certain unfair labor practices. In order to remedy
such conduct, we are being required to post this notice.
We intend to comply with this requirement, and to
abide by the following:
WE WILL NOT promise our employees a compa-
ny-sponsored, noncontributory retirement plan,
company assumption of premium payments for
the employees' dependents' medical insurance
coverage, substantial raises, and suggest to our
employees that they might be promoted or other
favorable changes with respect to the terms and
conditions of employment, for the purpose of dis-
suading them from seeking or retaining union rep-
resentation.
WE WILL NOT make effective, as previously
promised, a company-sponsored, noncontributory
retirement plan, company assumption of premium
payments for our employees' dependents' medical
insurance: coverages and substantial increases in,
salary, or other favorable changes irrthe:terms and'
conditions of employment, for-,the purpose stated
above.
191 NLRB .No. 21
PERFECTION MACARONI COMPANY
WE WILL NOT tell employees that we will never
bargain with a labor organization, or that our
methods of doing business could be changed to
forestall the possibility that we might be required
to bargain, for the purpose of persuading such
employees that their efforts to procure or retain
union representation would be futile.
WE WILL NOT interfere with, restrain, or coerce
our employees, in any like or related manner, with
respect to their exercise of rights which the Na-
tional Labor Relations Act guarantees.
WE WILL, upon request, bargain with Retail
Clerks Union, Local 1288, Retail Clerks Interna-
tional Association, AFL-CIO, concerning rates of
pay, wages, hours, and other terms and conditions
of work for our employees within the bargaining
unit defined below and, if an understanding is
reached, we will embody that understanding in a
signed agreement. The unit found appropriate for
collective-bargaining purposes is:
All salesmen employed by us at our Oakland
and Fresno, California facilities, excluding all
other employees, office clerical employees,
supervisors, guards and watchmen as defined
in the National Labor Relations Act.
FRESNO MACARONI
MANUFACTURING CO.,
INC. D/B/A PERFECTION
MACARONI COMPANY;
WEST COAST MACARONI
MANUFACTURING CO.,
INC. D/B/A PERFECTION
MACARONI CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building, 450 Golden Gate Ave-
nue, Box 36047, San Francisco , California 94102, Tele-
phone 415-556-3197.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a charge and
amended charge, filed March 20 and September-15, 1970,
respectively, and duly served, the General Counsel ,of the
National Labor Relations Board caused a Complaint and
Notice of Hearing to be issued and served upon Fresno
83
Macaroni Manufacturing Co., Inc., and that corporation's
wholly owned subsidiary, West Coast Macaroni Manufactur-
ing Co., Inc., together doing business as Perfection Macaroni
Company, and collectively designated as Respondent within
this decision. The Complaint issued October 6, 1970; therein,
Respondent was charged with unfair labor.practices affecting
commerce, within the meaning of Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended. 61 Stat. 136,
73 Stat. 519. Within Respondent's duly filed answer, certain
factual statements in General Counsel's complaint are
conceded; Respondent, however, has denied the commission
of unfair labor practices.
Pursuant to notice, a hearing with respect to this matter
was held at San Francisco, California, on December 10, 1970,
before me. The General Counsel and Respondent were repre-
sented by counsel; though Complainant Union's counsel did
not participate personally, his formal appearance was noted.
Each party was afforded a full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evi-
dence pertainent to those issues. Since the hearing's close,
briefs have been received from General Counsel's representa-
tive, Complainant Union's counsel and Respondent's coun-
sel; these briefs have been duly considered.
FINDINGS OF FACT
Upon the entire testimonial record , documentary evidence
received, and my observation of the witnesses, I make the
following findings of fact:
I JURISDICTION
Respondent raises no question herein with respect to Gen-
eral Counsel's jurisdictional claim. Upon the complaint's
relevant factual declarations - specifically, those set forth in
detail within the second paragraph thereof - which are
conceded to be correct, and upon which I rely, I find that
Respondent Fresno Macaroni, together with, that corpora-
tions's wholly owned subsidiary, Respondent West Coast
Macaroni, did - throughout the period with which this case
is concerned - constitute a single employer -within the mean-
ing of Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the meaning
of Section 2(6) and (7) of the Act, as amended. Further, with
due regard for presently applicable jurisdictional standards,
I find assertion of the Board's jurisdiction in this case war-
ranted and necessary to effectuate statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local 1288, Retail Clerks Interna-
tional Association , AFL-CIO, designated as Complainant
Union within this Decision, is, and at all times material
herein has been, a labor organization within the meaning of
Section 2(5) of the Act, as amended , which admits certain of
Respondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issues
General Counsel, herein , seeks a cease-and-desist order
calculated to forestall a course' of conduct, purportedly
chargeable to Respondent 's management, which has inter-
fered with, restrained, and coerced Respondent's salesman
with respect to their exercise of rights statutorily guaranteed.
Further, General Counsel contends that various acts and
statements chargeable to management representatives de-
stroyed those conditions which have commonly been deemed
necessary for conducting a, fair and free election to determine
whether Respondent's salesmen desired union representa-
tion; that the present possibility of erasing these consequences
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's statutorily proscribed conduct and guaran-
teeing the subsequent conduct of a fair election, through
conventional procedures, must be considered slight; and,
therefore, that a bargaining order, bottomed upon Complain-
ant Union's signed designation card showing of majority
status within a bargaining group limited to Respondent's
salesmen , should be "considered necessary and proper.
N.L.R.B. v. Gissel Packing Company, 395 U.S. 575. The
questions herein presented for resolution may, then, be sum-
marized as follows:
1. Whether various acts and statements chargeable to
Respondent' s management , during the period which di-
rectly preceded and followed a consent representation
election conducted by the California State Conciliation
Service, interfered with, restrained and coerced Re-
spondent's salesmen with respect to their exercise of
statutorily guaranteed rights.
2. Whether the course of conduct chargeable to Re-
spondent's management representatives destroyed those
"laboratory conditions" which this Board normally
deems prerequisite when conducting representation
votes; and whether the consequences of such conduct
can possibly be erased, and a fair and free representation
election subsequently conducted, by resort to conven-
tional procedures.
3. Whether a bargaining order, bottomed upon Com-
plainant Union's prior designation and selection by a
majority of Respondent' s salesman , should be consid-
ered necessary and proper.
Regarding these questions, Respondent presently contends
that General Counsel has failed to prove any course of con-
duct or statements, properly chargeable to Respondent's
management, violative of statutory rights; further, Respond-
ent contends that Complainant Union's failure to win
majority designation through the California State Concilia-
tion Service's representation election should, therefore, nei-
ther be voided nor disregarded. Finally, Respondent contends
that in any event, no bargaining order should be considered
warranted, herein, since Complainant Union has never re-
quested, or been refused, recognition within a bargaining unit
limited to Respondent' s salesmen.
B. Facts
1. Background
a. Respondent's business
Respondent, Perfection Macaroni Company, is engaged in
the manufacture and distribution of macaroni products. Re-
spondent Fresno Macaroni, principal firm within the business
complex thus collectively designated, maintains a plant and
sales office in Fresno, California; Respondent West Coast
Macaroni, the principal firm's wholly owned subsidiary,
maintains a warehouse and sales office in Oakland, Cali-
fornia. Throughout the period with which this case is con-
cerned - specifically, between December 19, 1969, and the
date on which this case was heard - there were 11 salesmen
in Respondent's hire. Five of these had Fresno headquarters;
six were supervised from Respondent's Oakland warehouse
and sales office. Respondent's complete roster of management
and sales personnel - with whom we are presently concerned
- may be listed as follows:
Oakland
Vice President Julius Di Donato
Sales Uanager Dorman I•letz
Salesmen:
Louis Gambelin
Roy Iliddlekauf
Joseph Iioreira
Kenneth Pementell
Peter Sofos
Eros Zotalis
Fresno
Vice President Robert Borrelli
Sales ilanager Paul Allison
Salesmen:
Plario Casaburri
Jack Fiorentino
John Ghoruley
Lee Rosso
Don Sorensen
Most of Respondent's Oakland salesmen, specifically, were,
so the record shows, men with relatively lengthy periods of
service. The parties have stipulated that these eleven salesmen
constituted Respondent's entire complement of sales person-
nel throughout the period with which this case is concerned.
b. The December 19 meeting
On December 19, 1969, Respondent's 11 salesmen at-
tended a Fresno, California, meeting. Management represent-
atives present included Vice Presidents Borelli and Di
Donato, and Oakland Sales Manager Metz; they were accom-
panied by George R. Seiverd, a representative of Aetna Life
and Casualty Company, the new carrier for Respondent's
group life, medical and prospective dental insurance pro-
gram. Seiverd explained his firm's new insurance package.
When this meeting was held, Respondent had been paying
the complete premium charges for its salesman's medical
insurance coverage; the salesmen themselves, however, were
then required to contribute toward the premium, payments
required in connection with health and accident coverage for
their dependents. Before December 1969 such coverage for
dependents had been purchaseable for total premiums of
$21.50 approximately, per month. Sometime previously, dur-
ing late 1967, Respondent's Fresno sales force had, so the
record shows, requested their Employer to take over the cost
of their dependent's medical insurance coverage; Respondent
had, then, agreed to pay one-half of their dependent's medical
insurance costs, $10.50 approximately, beginning January 1,
1968. This fringe benefit, however, had not been extended,
concurrently, to Respondent's Oakland sales force. The
present record warrants no determination whether Respond-
ent's Oakland salesmen were aware, during the period with
which we are now concerned, that their Fresno counterparts
had requested, or that Respondent had concurred, with re-
gard to this prior change.
The salesmen were told that, with Aetna becoming their
new insurance carrier, their total share of the premium cost
for dependent's coverage would be $5.00 higher. While a
witness, Borrelli testified that several salesmen, then, asked
PERFECTION MACARONI COMPANY
whether Respondent could "pick up the total package price"
with respect to their dependent's coverage; according to Re-
spondent's vice president, the men were told that this sugges-
tion would be considered. Borrelli's proffered recollections in
this regard, however, have been flatly contradicted by two
salesmen testifying in General Counsel's behalf. For various
reasons - which will be detailed further within this decision
- the testimony proffered by Respondent's vice president
regarding Respondent' s willingness to consider taking over
the premium charges for dependent's coverage, within my
view, merits rejection; the contradictory testimony proffered
by salesmen Sofos and Pementell, rather, has been credited.
The subject, I find, was not mentioned.
During the discussion which followed, however, salesman
Sofos did query Borrelli regarding the possibility of a compa-
ny-sponsored retirement plan. He was told, so I find, that
Respondent had been checking the possibility of obtaining a
pension plan for employees, but had concluded, finally, that
the firm could not afford such a commitment.
While a witness , Borelli claimed, contrariwise, that the
salesmen were told Respondent was working on retirement
plans and would have figures available shortly. His testimony
regarding the matter, however, fails to persuade. The record
does contain certain background testimony, some proffered
without contradiction, that Respondent's management had
begun "looking into" pension plan possibilities for salesmen
back in 1965, but that a decision had been reached, then, not
to purchase a plan, since Respondent could not bear the cost.
Likewise, the record does show that Respondent's Fresno
salesmen , during their 1967 initiative, had suggested that
Borrelli consider making a retirement plan available for sales
personnel; their suggestion had been countered, then, with a
comment that Respondent would "take a look" at retirement
plans during the following year. And sometime during 1969,
Borrelli had, so I find, requested Aetna to propose a plan
which could be made effective during the 1970 calendar year.
A December 8, 1969, letter from Aetna Representative
George R. Seiverd to Respondent' s insurance broker reveals,
however, that as of that date the carrier had not yet presented
Respondent with a complete proposal and did not have suffi-
cient information from which to prepare a cost quotation; the
record shows that Respondent did not receive Aetna's retire-
ment plan proposal until March, 3 months later. Respondent
has produced no rank-and-file salesman's testimony cor-
roborative of Borelli's purported recollection in this respect.
Sales Manager Metz, who testified that he had been told,
following Borrelli's receipt of Seiverd's December 8 letter,
that he would be covered under a company-sponsored retire-
ment plan, conceded that he subsequently told the salesmen,
sometime in January, that he had "just" purchased such a
plan, personally. Within my view, Borrelli's purported recol-
lection, calculated to convey a suggestion that Respondent's
salesmen were told during this December meeting that a
retirement plan proposal would be forthcoming shortly, must
be rejected.
Salesman Sofos, whose testimony I credit in this connec-
tion, recalls that he then asked Borrelli, "Bob, how about us
tying in with the Retail Clerks? That is a terrific plan." The
latter responded, so I find, with a suggestion that Sofas
should "look into" the Retail Clerks pension plan and let him
(Borrelli) know what he discovered; while witnesses both
Borrelli and Metz conceded the correctness of Sofos' recitals
in this respect.
85
2. Complainant Union's representation claim
Sometime during December 1969 William Greaff, Com-
plainant Union's field representative, while in a Fresno gro-
cery store was approached by one of Respondent's salesmen,
name not specified, who queried him regarding the possibility
of union representation. Thereafter, on January 31, 1970,
Greaff, together with three other union representatives, met
with nine of Respondent's salesmen at Complainant Union's
Fresno hall. The salesmen, so Greaff recalled, wanted to
know whether Complainant Union could represent them un-
der contract, and provide them with the health and welfare
plan currently in effect for Complainant Union's member-
ship. The union representatives discussed the various advan-
tages of union representation; particularly, Complainant
Union's pension plan was discussed. Respondent' s nine sales-
men, all those present, then signed and delivered authoriza-
tion cards designating Complainant Union their representa-
tive for collective-bargaining purposes.
Shortly thereafter, on February 7, specifically, two more
designation cards which Sofos had retained following the
January 31st meeting were signed by Kenneth Pementell and
Joseph Moreira respectively; they were the only members of
Respondent's Oakland sales force who had not been present
during the January 31 conference noted. These cards were
subsequently forwarded to Complainant Union's headquar-
ters.
Meanwhile, on February 2, President Kisling and Business
Representative Greaff of Complainant Union had called upon
Vice President Borrelli at Respondent's Fresno facility. Ac-
cording to Respondent's vice president, whose testimony sub-
stantially matched that which Business Representative Greaff
had previously given, Union President Kisling had declared
that Complainant Union "represented the sales force" for
collective-bargaining purposes; he had presented a proposed
contract draft which Borrelli was requested to discuss and
sign . Respondent's vice president had replied that he was too
busy to discuss the matter; he had requested Complainant
Union's representatives to return later during the week. Com-
plainant Union's representatives did revisit Borrelli's office 2
days later. Paul Prody, Respondent's labor relations repre-
sentative, was present. According to Greaff's testimony
which Borrelli, while a witness herein, did not contradict,
Complainant Union's president declared:
He stated, "We have the salesman signed up, and we'd
like to discuss a contract," and Mr. [Prody] stated he felt
that we didn't have all the salesmen signed; he'd rather
go for an election, and George [Kisling] said, "I got the
cards here if you want to see the damn things."
Prody, however, refused to check the proffered authorization
cards; he continued to insist that he preferred a vote. On this
note, the conference terminated.
On February 10, Kisling and Greaff met again with Re-
spondent's representatives. Their conference took place at
Prody's Fresno office; Conciliator Edward Allen of the Cali-
fornia State Conciliation Service was present. Respondent
and Complainant Union agreed, there and then, to permit the
State Conciliation Service to conduct a representation elec-
tion, with Fresno and Oakland polling places, within a bar-
gaining unit defined to compass "all [Respondent 's] sales-
men" excluding guards and watchmen, office and clerical
employees, and supervisors statutorily defined. The parties
executed a "Memorandum of Agreement for Representation
Election" providing for a February 18 vote.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Subsequent February developments
On February 16, Respondent 's Oakland sales force was
convened for a regular sales conference, held at the firm's
Oakland facility. Vice President Di Donato and Sales
Manager Metz led the discussion ; five of Respondent's six
Oakland salesmen were present. So far as the record shows,
Zotalis, who handled the firm 's Sacramento territory , was the
sole salesman not present . I so find . Respondent 's sales
manager told the salesmen , inter alia, that Respondent
wished to postpone the scheduled representation vote for 30
days, during which Respondent would "look into" several
different retirement plans for salesmen . Then, so I find, he
asked the salesmen present to sign a letter, directed to Com-
plainant Union 's president , requesting the scheduled elec-
tion 's postponement . This they did.
While a witness, Metz refused to concede that Respond-
ent's salesmen had been "requested ... to sign" anything; he
did concede , however, that the men were asked to postpone
the election . He further conceded that Respondent's manage-
ment had then desired such a postponement , sufficiently long
to permit the preparation of a detailed retirement plan
proposal which Respondent's salesmen could compare with
Complainant Union's plan . According to Respondent's sales
manager, the Company then had a bare "outline" with regard
to some sort of pension plan, but did not have the "full facts
and figures" required . Upon the entire record, I find Metz'
testimonial disclaimer a mere semantic quibble.
Both Di Donato and Metz declared that they "thought"
Respondent could provide a better retirement plan than
Complainant Union 's plan . According to Pementell's tes-
timonial recollection which stands in the record without con-
tradiction , Metz further stated that Respondent could per-
haps "take care of ' the medical insurance premiums which
the salesmen were then paying ; that the firm "would " pay the
differential premiums they were paying for their dependent's
coverage. The record , further, reflects Pementell 's uncon-
tradicted testimony , which I credit , that Metz declared that
he thought "maybe" he could , get the salesmen raises.
On February 18, Kisling and Prody, for Compainant
Union and Respondent respectively , agreed to postpone their
scheduled election until March 18; the parties signed revised
"Memorandum of Agreement" with respect thereto.
4. The March vote
On March 16 , 2 days before the rescheduled election date,
Respondent's management scheduled concurrent meetings
for its Oakland and Fresno salesmen ; meetings were con-
ducted in both cities.
In Oakland , before the meeting convened , Respondent's
sales manager spoke with Moreira within his (Metz') office.
With respect to their discussion , Moreira testified , credibly,
that Respondent 's sales manager had a stack of scratch
"pads" in front of him ; that he thumbed through them and
singled out one; and that he then asked how $55 more per
month, which would bring Moreira's salary up to $680 per
month, would "strike" him. The salesman , so he testified,
replied, "Fine. Anybody could use more money." Respond-
ent's sales manager then stated that he would "go over it"
with all the other men; Moreira replied , that "everybody"
likes money.
Regarding this conversation , Metz proffered the following-
ing version : That Moreira had been requesting a raise for 6
months; that he [Metz] considered such a raise warranted;
that he had been trying to secure Fresno's concurrence with
regard to Moreira's raise; that he "got the O.K." required;
but that Moreira was then asked whether a $50 or $55 raise
would be satisfactory , if Metz could get it for him . While a
witness, Metz claimed that he did not promise to get Moreira
such a raise, but merely stated that he was "going to try" to
get it. The sales manager 's testimony reflects a contradiction;
while now conceding that Respondent's Fresno headquarters
had okayed Moreira's raise, he claims that Respondent's
salesman was merely told he [Metz] would "try" to get such
a raise approved . With due regard for the record considered
in totality, I am satisfied that, whatever the fact may have
been , Moreira was , realistically , given to understand that a
raise would be forthcoming.
During the March 16 Oakland sales force meeting, which
followed shortly thereafter , Vice President Di Donato and
Metz represented Respondent's management ; four salesmen
were present. Gambelin , one of those not present , subse-
quently claimed that he had not been notified ; Zotalis, so the
record shows, was then handling a relatively detached terri-
tory. The testimony of Sofas, Pementall and Moreira regard-
ing this meeting which stands in the record substantially
without contradiction, warrants the following factual deter-
minations : Respondent 's sales manager presented the sales-
men with a two-page document , prepared on Aetna Life and
Casualty Company stationery , which detailed "the pertinent
features of a non-contributory Deferred Annuity retirement
plan" for them ; he announced that Respondent proposed to
put the plan described into effect.
The document 's second page contained a tabulation, keyed
to the handwritten names of Respondent 's 11 salesmen,
which purported to list their respective monthly earnings and
the monthly annuity which each would receive upon retire-
ment under the plan . All the salesmen were listed as receiving
the same monthly income $680 though , when this meeting
was held, none of Respondent 's Oakland salesmen were cur-
rently receiving monthly salaries that high ; several Oakland
salesmen were, in fact, then receiving monthly salaries more
than $100 below the figure shown.
Metz told the salesmen that Respondent considered the
plan described within his two-page document superior to
Complainant Union 's pension plan. He also promised that
Respondent would take over the premium payment respon-
sibilities for the medical insurance which covered the sales-
men's dependents ; for Respondent's Oakland salesmen such
a commitment would mean reduced out-of-pocket costs total-
ing $26 . 50 per month. Finally, the record shows Metz flatly
told the salesmen that they would be receiving raises, though
he did not designate a date or specify precise raise amounts.
Gambelin telephoned while the March 16 meeting was in
progress. Metz, following a query regarding his failure to be
present, instructed him to report to Respondent's Oakland
facility % hour before the scheduled March 18 election so that
he could discuss with Respondent 's sales manager what had
taken place during the meeting. Following the meeting, I find,
Metz himself telephoned Zotalis, who had likewise been ab-
sent; the latter was requested to have lunch with Metz before
the scheduled March 18 election so he could be briefed.
Concurrently, on March 16 Borrelli was meeting with Re-
spondent's Fresno salesmen . According to his own testimony
herein the salesmen were promised that Respondent would
provide them with a pension plan and would pay the full cost
of their dependents ' medical insurance coverage.
That evening, according to Salesman Sofos' credible tes-
timony which stands in the record without contradiction, he
received a telephone call from Respondent's Oakland sales
manager . During a somewhat heated 20-minute conversation
which followed , Metz assured the salesmen that Respond-
ent's proposed pension plan was better than Complainant
Union 's pension program . Further, Sofos was promised that
if the salesmen didn 't go union there would be a raise.
PERFECTION MACARONI COMPANY
On March 18, before the 2:00 p.m. Oakland election ballot-
ing began, Metz spoke separately with Gambelin and Zotalis
in his office. Gambelin's testimony, which I credit, warrants
a determination that Metz showed him the two-page docu-
ment which described Aetna's pension plan and told him that
Respondent was going to take over complete premium pay-
ments for the salesmen's medical insurance coverage. Fur-
ther, Respondent's sales manager told Gambelin unequivo-
cally that he would be receiving a raise of $50 per month.
Metz also declared that the firm "would be needing some type
of supervision help" shortly. General Counsel, within his
brief, suggests that this remark should be considered a broad-
ly-phrased hint that Gambelin might win a promotion. I
concur. Metz, while a witness, did not deny making the state-
ment noted. He did deny making any promise regarding a
raise, saying that he merely said he would try to get Gambelin
a raise. Since Respondent's proposed retirement plan was
plainly premised upon a $680 monthly income level for all
salesmen, Metz's testimony cannot be considered credible.
Finally, Metz declared definitely that Respondent did not
favor its salesmen's unionization. The sales manager's subse-
quent conversation with Zotalis, I find, followed a similar
pattern. That salesman's credible undenied testimony reveals
that Metz promised him Respondent would pay the cost of
his dependent's medical insurance coverage, and that Re-
spondent would, further, establish a pension plan, described
as the "better" or "best" plan. Finally I find Metz suggested
that Zotalis might receive a raise, with no precise figure spe-
cified.
On March 18, the rescheduled representation election was
finally held with a previously-drafted voter eligibility list lim-
ited to Respondent's 11 salesmen. The ballot tally reveals that
all 11 salesmen voted. Complainant Union, however, failed to
win representative status; there was a 6-5 negative vote. Two
days later, on March 20, Complainant Union's unfair labor
practice charge, which initiated the present case, was filed.
5. Subsequent developments
Thereafter, on or about August 3, Sales Manager Metz and
Salesman Moreira had a conversation, while both were at
work, in a back room of Respondent's Oakland facility. With
respect thereto, Moreira credibly testified, that Metz told him
Respondent was definitely opposed to unionization because it
would be impracticable for a sales force to be unionized.
Further I find Respondent's sales manager declared that:
You know it's possible that we could reorganize, and
under the form of reorganizing, I assume that we could
form a brokerage type of operation up here and we could
keep what men we wanted and not have the men we
didn't need.
The salesman's testimony herein reflects his construction of
Metz's remark as constituting a declaration that Respondent
could under the new brokerage label relieve itself of the bur-
den of union ties.
Sales Manager Metz, while a witness, conceded that during
the particular conversation with Moreira now under consid-
eration the possibility of Respondent's reorganization into a
brokerage company was mentioned; he contended, however,
that the remark had been made within a context of friendly
discussion premised upon their long, friendly association as
fellow workers, and denied that any threat had been made.
As General Counsel in his brief perceptively notes, Respond-
ent's sales manager did not however, proffer any testimonial
explanation for his reference to the possibility of Respond-
ent's reorganization within the context of a discussion con-
cerning Union representation for the firm's salesmen.
87
On August 30 Respondent's management invited the Oak-
land sales force to a dinner meeting, which convened at a San
Leandro, California, restaurant. Five salesmen attended, with
Zotalis once more the only Oakland salesman missing. Re-
spondent's vice presidents, Borrelli and Di Donato, were
present. During the discussion Borrelli announced, according
to Sofos' and Gambelin's credited testimony, that Respond-
ent was putting into effect those changes which the salesmen
had been promised before the March 18 election. The sales-
men were told, specifically, that they would each receive a
raise which would lift their several salaries to $680 per
month; that Respondent would pay the full premium cost of
medical insurance coverage for their dependents; and that
Respondent would, further, institute the pension plan which
had been described before the representation vote. Salesman
Sofos thereupon reminded Respondent's vice president that
the "Labor Board" was concerned with their situation and
that he could not get away with such conduct. According to
Respondent's salesmen , whose testimony in this connection
I credit, Borrelli replied:
Don't threaten me. The hell with the Labor Board, that
jerk Montoya, [the Regional Office's investigator], and if
you think I am going to negotiate with that union in
Fresno, you are crazy. If you guys don't take this, you
can wait two years because I am going to fight it all the
way.
With respect to this testimony, Borrelli merely noted that he
did not "recall" making the statements quoted, and thought
them not very likely. His less-than-positive denial fails to
persuade. Subsequently, during September's first week, the
Oakland salesmen received checks from Respondent which
reflected both the promised base salary raises and Respond-
ent's assumption of responsibility for the premium payments
covering medical insurance for their dependents. According
to Borrelli, the salary raises reflected in these September
checks were retroactive to June 1; the checks likewise re-
flected Respondent's assumption of premium payments for
the salesmen's dependency coverages retroactive to April 1.
Borrelli's testimony further reveals that pursuant to a con-
tract signed sometime shorly after the March election the
Aetna pension plan was likewise installed with a July 1 effec-
tive date.
The net result of these changes so far as they affected the
income of various Oakland salesmen differed from man to
man, since they had been receiving different base salaries.
Thus, Pementell's testimony reveals that he received a base
salary raise from $575 to $680' per month. Sofos, Gambelin,
and Moreira each received raises from $625 to $680 monthly.
Zotalis was raised from $560 or $570 to a comparable
monthly salary. Before these changes, Respondent's salesmen
had further been entitled to commissions on sales in excess
of a certain figure. However, no more than two of the sales-
men who testified, Sofos and Moreira, were then actually
receiving earnings in the form of commissions which supple-
mented their base pay. Each of Respondent's Oakland sales-
men likewise received the benefit of what was in effect a
supplementary income increment equivalent to $26.50 per
month through Respondent's decision to assume responsibil-
ity for the premium payments on their dependents' medical
insurance coverage.
C. Conclusions
1. Complainant Union has been designated and selected,
by a majority of Respondent's salesmen, as their
collective-bargaining representative
The Complaint herein contains a declaration the correct-
ness of which Respondent's duly filed answer concedes, that
"All salesmen employed by Respondent at its Oakland and
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fresno, California facilities excluding all other employees,
office clerical employees, supervisors, guards and watchmen
as defined in the Act" constitute a unit appropriate for collec-
tive-bargaining purposes, within the meaning of Section 9(b)
of the statute. I so find.
On February 2, when Complainant Union first sought
recognition as their collective-bargaining representative, and
at all times material thereafter, the thus defined bargaining
unit encompassed 11 salesmen. The record shows Complain-
ant Union then held valid "Authorization for Representa-
tion" cards properly signed by nine of Respondent's sales-
men; thereby, these card signatories had unambiguously
designated Complainant Union their collective bargaining
representative. Within a week thereafter, Complainant Union
received designation cards signed by Respondent's two previ-
ously unsigned salesmen ; by February 7, the labor organiza-
tion in question had therefore been unanimously designated.
No contention has been proffered herein that Complainant
Union's signed designation cards were procured through mis-
representation or coercion. Determination seems clearly war-
ranted, therefore, that Complainant Union, when it first re-
quested recognition as the salesmen's representative and
throughout the period with which this case is concerned, did
represent and continues to represent a majority of Respond-
ent's employees within a defined unit concededly appropriate
for collective-bargaining purposes. I so find.
2. Complainant Union sought recognition within the
bargaining unit herein found appropriate for
collective-bargaining purposes
Within his brief Respondent 's counsel contends for the first
time that Complainant Union's putative majority status
within a bargaining unit limited to Respondent's salesman
should not be considered determinative, since Complainant
Union's representatives first sought recognition within a
more broadly defined group of Respondent's employees, with
respect to which no showing of majority representative status
has ever been made.
In this connection counsel cites the language of Complain-
ant Union's proposed contract. That document, which Com-
plainant Union's representative concededly tendered for Re-
spondent's consideration during their February 4 conference,
contained a so-called "Recognition and Contract Coverage"
clause which reads:
(a) Recognition: The Employer hereby recognizes the
Union as the sole collective bargaining agency for an
appropriate unit consisting of all salesmen and office
employees working for the Employer within the geo-
graphical jurisdiction of the Union covering Merced,
Mariposa, Madera, Fresno, Tulare and Kings Counties,
except supervisors within the meaning of the National
Labor Relations Act, as amended. [Company employees
in other areas are to be included.]
(b) Sale's [sic] Work- The work covered by this Agree-
ment shall be performed only by members of the appro-
priate unit as defined in Section 1(a) hereof and such
work shall consist of all work and services connected
with or incidental to the office or selling of all merchan-
dise offered for sale by the Employer.
The contractual language shown above in brackets appears in
Complainant Union's purportedly proffered contract, written
by hand. Further, Complainant Union's proposal included a
mimeographed supplementary stipulation which listed
proposed job descriptions and wage rates for office clerical
workers and office managerial personnel.
With matters in this posture, Respondent's counsel sug-
gests, conceding, for the sake of argument, Complainant
Union's February 4 possession of valid authorization cards
signed by nine salesmen, the record herein nevertheless fails
to show that the labor organization in question "upon that
date, or ever" represented a majority of Respondent's work-
ers within the broad group for which it was "expressly in
writing" then proposing collective bargaining. Without such
a showing, counsel contends, the present record provides no
legal basis for a Section 8(a)(5) determination, and thus no
basis for a bargaining order.
These contentions, in my view, merit rejection. Despite
counsel's suggestion that the bargaining unit definition set
forth within Complainant Union's draft contract, concededly
presented when the Union representative paid their February
4 visit to Respondent's vice president, should be considered
conclusive with respect to the scope of their recognition de-
mand, the present record clearly warrants a determination
that Union President Kisling then claimed representative
status with merely respect to the firm's sales force. Vice Presi-
dent Borrelli so testified; his proffered recollection, regarding
the limited scope of Kisling's verbal recognition demand,
corroborated Business Representative Greaff s prior tes-
timony. Nothing within the present record would warrant a
determination that Borrelli was requested to note any draft
contract provision when Complainant Union's bargaining de-
mand was presented. Nor can Respondent now contend, per-
suasively, that the contractual unit definition was contempo-
raneously brought to his notice. Complainant Union's
contractual proposal was presented, I find, merely for discus-
sion. Further, the testimonial record provides no basis,what-
soever for any determination that Complainant Union's draft
contract language created doubts or confusion with respect to
the precise scope of Kisling's February 4 recognition demand.
Neither Borrelli nor Prody, Respondent's labor relations con-
sultant, referred to Complainant Union's draft contractual
proposal when they refused to concede that organization's
representative status, based on signed designation cards. An
no question has ever been raised, so far as the record shows,
regarding the propriety of Complainant Union's verbal recog-
nition demand confined to Repondent's salesmen.
When the parties subsequently reached and signed their
"Memorandum of Agreement" that Complainant Union's
claim would be resolved through a representation election
which the California State Conciliation Service would con-
duct, the constituency which they mutually designated as
proper for collective-bargaining purposes was confined to all
salesmen exclusive of office and clerical workers; their agreed-
upon voter eligibility list compassed Respondent's 11 sales-
men solely.
We are not, therefore, confronted herein with a situation
wherein Complainant Union has neither demonstrated
majority representative status within a broadly-defined bar-
gaining unit for which recognition was specifically sought nor
requested bargaining with respect to a more circumscribed
bargaining group for which majority representative status has
been shown. Compare The C.L. Bailey Grocery Company,
576, 577-580; Barlow-Maney Laboratories, Inc., 65 NLRB
928, 941-944. Within his brief, Respondent's counsel notes
correctly that before a Section 8(a)(5) violation may be found:
. it must as a minimum first preliminary be shown on
behalf of charging party Union that it did in fact have
unambiguous authorization cards validly obtained from
a majority of the employees in an appropriate unit for
which bargaining was demanded and refused.
The present record, however, fully warrants a determination
within my view that these requirements have herein been
satisfied. Despite Union President Kisling's presentation of
some written contract proposals which purported to cover all
salesmen and office employees within Respondent's Fresno
and Oakland facilities, determination seems warranted that
PERFECTION MACARONI COMPANY
Complainant Union's spokesmen clearly communicated to
Respondent's vice president their desire to bargain only for
the firm's salesmen; that Respondent's management was
never really misled or confused regarding the limited scope
of Complainant Union recognition demand; that Vice Presi-
dent Borrelli never predicated his refusal to grant Complain-
ant Union's request for bargaining on doubts with respect to
the propriety of that organization's bargaining unit claim;
and that Complanant Union did, then, hold valid designation
cards signed by a majority of Respondent's employees within
the bargaining unit for which it specifically sought recogni-
tion. I so find.
3. Respondent refused to concede Complainant Union's
card majority status, while committed to a course of
conduct which tended to undermine that majority status
and made a fair election an unlikely possiblity
The present record, within my view, fully warrants a con-
clusion, consistent with General Counsel's contention, that
Respondent's reaction upon learning that its salesmen were
trying to secure Union representation transgressed permissi-
ble limits. Determined to subvert Complainant Union's sup-
port within its sales force before that organization could dem-
onstrate its majority representative status through a
representation vote, the firm's management promised its
salesmen various significant benefits; specifically, a noncon-
tributory retirement plan, relief from the burden of premium
payments for their dependents' medical insurance coverage,
and substantial raises. When these blandishments proved suc-
cessful - that is, when they effectively dissuaded a bare
six-man majority of Respondent' s salesmen from reaffirming,
through a representation vote, their earlier designation of
Complainant Union as their bargaining representative - the
firm rewarded them by granting them the very benefits which
had been promised for the purpose of forestalling their union-
ization. Further, while granting these significant salary and
fringe benefit improvements the Respondent' s management
made it clear that the firm would never willingly concede
Complainant Union's status as their representative. Finally,
for the purpose of further persuading its salesmen that Union
representation would be futile, Respondent's management,
particularly through Oakland Sales Manager Metz, warned
one salesman that the firm could reorganize its operations.
Thereby, I have found, the suggestion was effectively con-
veyed that Respondent would be enabled to evade any statu-
tory bargaining obligation.
a. Promises of benefit
During the February 16 meeting of Respondent's Oakland
sales force, the salesmen were promised for the first time that
Respondent's management would look into various retire-
ment plans; the management representatives present declared
that they thought the firm could procure a better retirement
plan than Complainant Union could provide. Further, condi-
tional promises were made that the firm could perhaps take
over repsonsibility for those medical insurance premiums
which the Oakland salesmen were then paying for their de-
pendents' coverage, and that raises could maybe be secured.
During the March 16 meeting, these promises which were
previously conditional and tentative, were renewed as firm
commitments. Specifically, the salesmen were presented with
a definitive noncontributory retirement plan which Sales
Manager Metz described as superior to Complainant Union's
pension plan. Likewise, so the record shows, Metz categori-
cally promised that Respondent would take over complete
premium payment responsibility for the medical insurance
which covered the salesmen's dependents. Within his brief,
Respondent's counsel correctly points out that General
89
Counsel's complaint charges Respondent with a promise to
provide increased insurance coverage for the salesmen's de-
pendents; he suggests a failure of proof with respect to this
charge. The point is well taken; the only record proof dealing
with substantive increased insurance coverage would warrant
a determination that some new medical and dental insurance
coverage was provided in December 1969 before Complain-
ant Union's advent, when Aetna Life and Casualty became
Respondent's new insurance carrier. General Counsel's tech-
nical failure with respect to this particular charge, however,
can hardly be considered significant. A Complaint reference
to Respondent's promise that the salesmen would be relieved
of the burden of paying for their dependents' medical insur-
ance coverage was clearly intended. And the circumstances
surrounding that promise were fully litigated. Upon the en-
tire record, I find determination fully warranted that such a
promise was made. Likewise, during the conference in ques-
tion, Metz told the salesmen present that they would defi-
nitely be receiving raises. That declaration was, I find, con-
sistent with Metz's prior course of conduct during a private
conversation with Salesman Moreira in his office. Respond-
ent's sales manager had then conducted himself in a manner
clearly calculated to persuade Moreira that a raise would be
forthcoming, one sufficient to make his salary $680 per
month. And later that day during a telephone conversation
Salesman Sofos was specifically told by the firm's Oakland
sales manager that if the salesman did not go union there
would be a raise.
Subsequently, during private conversations with Salesmen
Gambelin and Zotalis conducted at Respondent's Oakland
facility directly preceding the March 18 representation vote,
Metz reiterated these promises. Confronted with this portion
of General Counsel's case, Respondent's counsel denigrates
the significance of Metz's various promises with respect to
pay increases for Respondent's Oakland salesmen; he con-
tends now that Respondent' s sales manager could, really, do
no more than request consideration with respect to such
raises, and that consistently with his lack of power he did no
more than promise that he would see what he could do. In
this connection, however, I have found General Counsel's
witnesses generally credible. These salesmen had substantial
tenure; without exception, their witness-chair behavior sug-
gested responsible maturity and measured judgment. Fur-
ther, they were still in Respondent's hire when this case was
heard. As General Counsel notes within his brief they had
every reason to testify truthfully. This Board has long consid-
ered particularly trustworthy and credible those witnesses
who "place the future of their job on the line" when testifying
contrary to the presumed desire of their current employer.
See Federal Envelope Company, 147 NLRB 1030, 1036, cit-
ing Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2; Allstate
Insurance Company, 186 NLRB No. 139, [Slip Opinion,
TXD]. In this connection, further, I note that Respondent's
two-page memorandum regarding its proposed noncontribu-
tory retirement plan - made available for perusal during the
salesmen 's March 16 conference - was specifically predi-
cated upon projected salesman's earnings totaling $680
pionthly; since Respondent's promised pension plan was thus
necessarily predicated upon higher monthly income levels,
Respondent's present suggestion, that Metz merely said he
would "try" to get some salesmen raises, suggests stultifica-
tion. During his March 18 conversation with Gambelin,
finally, Metz strongly hinted that the salesman might receive
a promotion. Within their conversation's total context, which
clearly revealed Respondent's opposition to its salesmen's
unionization, this suggestion was clearly calculated to subvert
Gambelin's support for Union representation. I so find.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well-established decisional doctrine, set forth and substan-
tially explicated in cases too numerous to cite, fully warrants
a determination that these promises interfered with, re-
strained, and coerced Respondent' s salesmen with respect to
their exercise of rights statutorily guaranteed. See, e.g. O'-
Daniel Oldsmobile, Inc., 179 NLRB 398, (TXD, promise of
raise); King Chrysler-Plymouth Inc., 174 NLRB 531, (TXD,
promise of promotion); East Bay Rambler, Inc., 168 NLRB
1000, 1003, (promise of pension plan); Borden Cabinet Corpo-
ration, 159 NLRB 1373, 1378-1379, (notice posted regarding
changes in group insurance coverage), in this connection. By
virtue of these promises with respect to better pay, favorable
changes related to specific fringe benefit programs, and pro-
motion, specifically timed to interfere with its salesmen's free-
dom of choice in the previously-scheduled representation
election, Respondent herein, I find, committed unfair labor
practices which merit statutory proscription.
b. Benefits granted
Several months after Complainant Union's failure to win
secret ballot confirmation with respect to its majority repre-
sentative status through the representation election which the
California State Conciliation Service had conducted the Re-
spondent's management did in fact reward its salesmen by
retroactively granting those substantial improvements which
they had previously been promised, despite the pendency of
Complainant Union's unfair labor practice charges, first
promised upon the firm's allegedly unlawful promises, which
had been filed within 2 days following the state-conducted
representation vote. The remarks of Vice President Borrelli
during the San Leandro dinner meeting when these changes
were announced previously noted herein, clearly revealed Re-
spondent's antiunion motivation with respect to these benefit
grants. Such well-timed beneficial changes, as General Coun-
sel in his brief cogently notes, would necessarily serve to
remind Respondent's employees "that the source of benefits
now conferred is also the source from which future benefits
must flow and which may dry up it it is not obliged."
N.L.R.B. v. Exchange Parts Co., 375 US 405, 409, cited in
C & G Electric Inc., 180 NLRB 427. Respondent's decision
to confer previously-promised benefits upon these Oakland
and Fresno salesmen, calculated to further erode their sup-
port for Complainant Union herein, must therefore be consid-
ered statutory proscribed interference, restraint, and coer-
cion . All-Tronics Inc, 175 NLRB 644; Gal Tex Hotel
Corporation, 154 NLRB 338, 340. I so find.
Within his brief Respondent's counsel suggests that
management's purported promise regarding a pension plan,
together with the firm's subsequent decision to make Aetna
Life and Casualty Company's proposed retirement program
effective, derived from a decision reached before Complainant
Union's recognition demand was received. The present
record however cannot be said to provide persuasive support
for such a contention. Before learning that its salesmen were
seeking Union representation, Respondent's management
may indeed have considered procuring a retirement program
at some never-determined and never-specified future date. In
this connection, the record does sonewhat vaguely reflect
Respondent's tentative 1965 contact with some prospective
pension plan underwriters, together with the firm's seeming
1967 promise that management would "take a look" at such
plans thereafter. Further, the record will support a conclu-
sion, for lack of proof to the contrary, that Vice President
Borrelli did request Aetna to produce a plan which could be
made effective during the 1970 calendar year. When Re-
spondent's December 19th meeting was held, however, no
concrete proposal had yet been prepared. And Vice President
Borrelli did not, I have found, mention Respondent 's prior
initiatives with respect to such a program; when Salesman
Sofos raised the subject, he was told rather that Respondent
could not then afford the required financial commitment. The
present record, however, will clearly support a determination
that Respondent's firm decision regarding a pension plan
followed Complainant Union's recognition demand. Re-
spondent's management representatives, testifying herein,
substantially conceded that they sought a month's postpone-
ment of the scheduled February 18 representation vote pre-
cisely because they wished to gain time for the preparation of
some definitive company-sponsored retirement plan proposal
which Respondent's salesmen could then consider before
casting their ballots. With matters in this posture, the conclu-
sion seems clearly warranted that:
. when Respondent learned of the Union's campaign
it decided to accelerate implementation of the vaguely
discussed [retirement plan] proposal.... Such "conduct
immediately favorable to employees which is undertaken
with the express purpose of impinging upon their free-
dom of choice for or against unionization and is reasona-
ble calculated to have that effect" (N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405, 409) is clearly violative of the
Act. Texas Transport & Terminal Co., Inc., 187 NLRB
No. 78.
This determination that Respondent's prevote promise re-
garding a pension plan, coupled with its subsequent grant
thereof, violated the statute derives, then, from several con-
siderations; (1) the particular timing of Respondent's promise
and subsequent grant; (2) management's commission of sev-
eral more contemporaneous unfair labor practices, patently
designed to undermine Complainant Union's majority repre-
sentative status; (3) Vice President Borrelli's dinner meeting
declaration, when he announced that Respondent's pension
plan, substantial raises, and further fringe benefit changes
would be implemented forthwith, which clearly revealed his
determination not to negotiate with Complainant Union
herein, plus his suggestion that Respondent's salesmen might
have to wait 2 years for comparable benefits, should they fail
to take those salary and benefit program changes which were
being promulgated. Counsel's presumptive suggestion that
Respondent's pension plan was "in the works" before Com-
plainant Union's recognition demand and should not be con-
sidered promulgated "with the express purpose of impinging
upon [the salesmen's] freedom of choice for or against unioni-
zation" must, therefore, be rejected.
c. Coercive statements
Consistently with General Counsel's contention, I find fur-
ther that Metz's statement to Salesman Moreira during their
August conversation, suggesting that Respondent could reor-
ganize its method of doing business, thereby evading its pre-
sumptive statutory duty to bargain with Complainant Union
herein, was clearly calculated to suggest, for the benefit of
Respondent's salesmen, the futility of seeking Union repre-
sentation. Such statements, particularly when made within a
context of contemporaneous unfair labor practices, have re-
peatedly been found deserving of statutory proscription. Cf.
L. F. Strassheim Co., 171 NLRB 916. And the fact that Metz
may have coupled his remark suggesting that Respondent
might possible reorganize with some general reassurance that
none of Respondent's salesmen would find their positions
threatened thereby must be considered beside the point. Metz
was Moreira's superior. The sales manager 's remark clearly
suggested Respondent's contemporaneous readiness to flout
is presumptive statutory responsibility. Such remarks when
directed to subordinates by their supervisors, even though
proffered in casual , workaday conversations sparked by
friendly, cautionary motives, commonly carry a coercive
PERFECTION MACARONI COMPANY
thrust, none the less because cloaked in the seemingly non-
minatory language . N.L.R.B. v. Gissel Packing Co., -395 US
575, 617, 71 LRRM 2481, 2497; see N.L.R.B. v. Stanton
Enterprises, Inc., 351 F.2d 261, 264 (C.A. 4). Vice President
Borrelli's August 30 declaration, previously noted, that he
would never negotiate with "that union in Fresno" confirmed
the suggestion previously implicitly conveyed by Metz's pre-
sumptively friendly comment; plainly, it derived from a simi-
lar purpose to impress the firm's Oakland's salesman with the
futility of their seeking Union representation. It must likewise
be considered statutorily proscribed.
4. The possibility of erasing the effects of Respondent
conduct and insuring a fair election by the use of
traditional remedies is slight
The present record, which clearly reveals a statutorily-
proscribed course of conduct chargeable to Respondent's
management calculated to subvert Complainant Union's
majority support within the firm's sales force, presents a
situation which within my view can only be redressed effec-
tively through a determination herein that Section 8(a)(5) has
been violated, plus a consequent bargaining directive.
N.L.R.B. v. Gissel Packing Co., supra. Within its decision,
previously cited, the Supreme Court specifically:
. approve[d] the Board's use of the bargaining order
in less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency to
undermine majority strength and impede the election
processes. The Board's authority to issue such an order
on a lesser showing of employer misconduct is appropri-
ate, we should re-emphasize, where there is also a show-
ing that at one point the union had a majority; in such
a case, of course, effectuating ascertainable employee
free choice becomes as important a goal as deterring
employer misbehaviour. In fashioning a remedy in the
exercise of its discretion, then, the Board can properly
take in consideration the extensiveness of an employer's
unfair practices in terms, of their past effect on election
conditions, and the likelihood of their recurrence in the
future. If the Board finds that the possibility of erasing
the effects of past practices and of insuring a fair election
(or a fair rerun) by the use of traditional remedies,
though present, is slight, and that employees ' sentiment
once expressed through cards would, on balance, be bet-
ter protected by a bargaining order, than such an order
should issue.
Consistently with General Counsel's contention, I find this
standard fully satisfied herein. True, we are not confronted
with a situation wherein Complainant Union and Respond-
ent have through consent conferred jurisdiction specifically
upon this Board with respect to directing a so-called "rerun"
representation vote. The ballot tally which confirmed Com-
plainant Union's loss of majority support within the em-
ployee group herein found appropriate for collective-bargain-
ing purposes followed a state-conducted consent election
with respect to which this Board could not claim formal
concern . The Board 's problem, nevertheless , remains the
same: Was management's prior course of conduct, herein
found violative of Federal law, sufficiently pervasive and
gross to warrant a determination that it could have had some
significant impact with respect to the state -conducted elec-
tion's result? And would a determination be warranted fur-
ther that Respondent's prevote course of conduct, coupled
with those subsequent unfair labor practices which have been
herein found, would be likely to have a continuing, recurrent
thrust with respect to some possible "rerun" vote? With mat-
ters in their present posture, these questions, within my view,
merit affirmative responses.
91
Though Respondent's prevote unfair labor practices en-
compassed a limited number of communications, the benefits
unilaterally promised covered a significant spectrum of work-
ing terms and conditions. The company-sponsored retire-
ment plan in particular, unlawfully promised before the state-
conducted election and unlawfully granted thereafter,
represented a benefit which had been a focal point of sales
force concern; Respondent's course of conduct with respect
thereto was clearly calculated to have a significant impact
upon the March 18 representation vote, together with any
possible subsequent rerun. I note, in this connection, that the
projected monthly salary level $680 upon which Respond-
ent's retirement plan proposal rested precisely matched the
"Minimum Monthly Income" figure for salesmen which
Complainant Union had suggested in Section 10 of its draft
contract presented for discussion. A deduction would cer-
tainly seem warranted that Respondent - when it premised its
retirement plan proposal upon the quoted $680 monthly in-
come level and granted raises calculated to raise tis sales-
men's salaries to that level precisely - was trying to convey
the thought that they did not need Union representation to
win desired raises and fringe benefits. The firm's preelection
promises were designed to destroy the conditions necessary
for conducting a so-called "free and fair" vote; the state-
conducted election's ballot tally, therefore, became a rather
less-than-accurate register of employee sentiment with re-
spect to Union representation. And, since the practical conse-
quence of Respondent 's subsequent determination to grant
previously promised raises and make its previously promised
pension plan operative cannot now be voided or reversed
through such conventional Board remedies as posted notices
or restoration of status quo ante conditions, little likelihood
can be considered present that a second election , whether
conducted under State Conciliation Service or Board spon-
sorship, would reveal or reflect a free and noncoerced em-
ployee choice. Determination must be considered fully war-
ranted, within my view, that statutory policies would not be
now realized through any sort of rerun representation vote.
5. Employee sentiment once expressed through designation
cards can best be protected through a bargaining order
This Board has recognized with judicial concurrence, that
secret ballot elections normally provide the most reliable
means for ascertaining worker sentiment with regard to
Union representation. Nevertheless, as General Counsel in
his brief cogently notes, the preference for proof cannot
become a license to engage in conduct realistically calculated
to prevent workers from exercising their statutory right to
choose representatives freely. General Stencils, Inc., 178
NLRB 108. Employers who question a union's majority rep-
resentative status within a context which reveals statutory
violations cannot be permitted to control the method for
resolving such questions; when, through statutorily pro-
scribed conduct, they have so impeded the election process as
to destroy its conventional reliability, this Board cannot per-
mit their defiance of collective -bargaining responsibilities
which a properly conducted election would, presumably,
have confirmed.
In this case, support for Complainant Union stands un-
equivocally through those designation cards which every
salesman then in Respondent 's hire signed . These designa-
tions were, so far as the record shows, completely untainted
by any type of misrepresentation or statutorily proscribed
inducement . With matters in this posture , Board determina-
tion is certainly warranted, in my view that the statutory
rights of Respondent's salesman would be most readily pro-
tected, and the purposes of the statute would be most readily
realized, by reliance on, those sentiments which the salesmen
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressed through their freely signed designation cards rather
than on sentiments putatively revealed thereafter by refusing
to bargain following Complainant Union's February 4 recog-
nition demand , and by unilaterally effectuating thereafter cer-
tain previously specified changes with respect its salesmen's
working terms and conditions, Respondent violated Section
8(a)(5) and (1) of the statute, and that an order which will
require Respondent to recognize and bargain with Complain-
ant Union, upon request, would be most appropriate to
remedy the statutory violations herein found.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent 's course of conduct described in section III
above, since it occurred in connection with Respondent's
business operations , described in General Counsel's com-
plaint , correctly concededly had, and continues to have, a
close, intimate , and substantial relation to trade, traffic, and
commerce among the several States ; absent correction, such
conduct would tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since I have found that Respondent engaged , and contin-
ues to engage , in certain unfair labor practices which affect
commerce, I shall recommend that it be directed to cease and
desist therefrom and take certain affirmative action, including
the posting of appropriate notices, designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. Respondent , Fresno Macaroni Manufacturing Co., Inc.,
and West Coast Macaroni Manufacturing Co., Inc., together
d/b/a Perfection Macaroni Co., is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act, as amended.
2. Complainant Union, Retail Clerks Union, Local 1288,
Retail Clerks International Association, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act,
as amended, which admits certain employees of Respondent
to membership.
3. Throughout the period with which this case is con-
cerned, the bargaining unit defined below was, and remains,
appropriate for collective -bargaining purposes within the
meaning of Section 9(b) of the Act, as amended.
All salesmen employed by Perfection Macaroni Company
at its Oakland and Fresno, California facilities, excluding all
other employees, office clerical employees, supervisors,
guards and watchmen as defined in the Act.
4. Since February 4, 1970, Retail Clerks Union, Local
1288, Retail Clerks International Association, AFL-CIO,
has been, and remains , entitled to claim recognition as the
exclusive bargaining representative for all Respondent's em-
ployees within the unit herein found appropriate for collec-
tive-bargaining purposes, within the meaning of Section 9(a)
of the Act, as amended.
5. By promising its salesmen a company-sponsored, non-
contributory retirement plan, relief from the burden of
premium payments for their dependents ' medical insurance
coverage, and substantial raises, all for the purpose of induc
ing them to forswear their support for Complainant Union
herein; by subsequently making these previously promised
beneficial changes in working terms and conditions; by sug-
gesting to one salesman that he might be promoted; and by
warning its Oakland based salesmen that Complainant
Union's status as their bargaining representative would never
be willingly conceded and that Respondent could reorganize
its method of doing business for the purpose of evading any
possible duty to bargain, Respondent did interfere with, re-
strain , and coerce its employees with respect to their exercise
of rights statutorily guaranteed , within the meaning of Sec-
tion 8(a)(1) of the Act, as amended.
6. Respondent herein, by refusing on February 4, 1970 and
at all times thereafter to bargain collectively with Complain-
ant Union as the exclusive representative of the designated
firm's salesmen within the unit herein found appropriate for
collective-bargaining purposes , has engaged in and is engag-
ing in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, as amended.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act, as amended.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER'
Respondent, Fresno Macaroni Manufacturing Co., Inc.,
and West Coast Manufacturing Co., Inc., together doing
business as Perfection Macaroni Co., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Promising employees favorable changes with respect to
their wages, hours, or working terms and conditions for the
purpose of dissuading them from seeking or retaining Union
representation;
(b) Making effective previously promised favorable
changes with respect to employees ' wages, hours, or working
terms and conditions for the purpose above stated;
(c) Telling employees that Respondent would never bar-
gain with a labor organization, or that Respondent's method
of doing business might be changed to forestall any such
possibility, for the purpose of persuading such employees that
their search for Union representation would be futile;
(d) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of employ-
ment with Retail Clerks Union, Local 1288, Retail Clerks
International Association, AFL-CIO, as the exclusive repre-
sentative of its employees within the following unit herein
found appropriate for collective-bargaining purposes:
All salesmen employed by Perfection Macaroni Com-
pany at its Oakland and Fresno, California facilities ex-
cluding all other employees , office clerical employees,
supervisors, guards and watchmen as defined in the Act.
(e) In any like or related manner interfering with , restrain-
ing, or coercing employees in their exercise of rights which
the National Labor Relations Act guarantees.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor or-
ganization as the exclusive representative of all Respondent's
employees within the above-described bargaining unit, with
repsect to rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in signed agreement;
I In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and Order, and
all objections thereto shall be deemed waived for all purposes.
PERFECTION MACARONI COMPANY
(b) Post at its Fresno and Oakland facilities copies of the
attached notice marked "Appendix ."' Copies of the notice,
on forms provided by the Regional Director for Region 20,
shall be posted immediately upon their receipt, after being
duly signed by Respondent 's representative . Once posted,
they shall remain posted for 60 consecutive days thereafter,
In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD "
93
in conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall be
taken by Respondent to insure that such notices are not
altered, defaced , or covered by any other material;
(c) File with the Regional Director for Region 20, within
20 days from the date of service of this Trial Examiner's
Decision, a written statement setting forth the matter and
form in which it has complied with these recommendations.'
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 20, in writing , within 10 days from the date
of this Order , what steps the Respondent has taken to comply herewith."