S. Frederick Sansone Co.

National Labor Relations Board - Board Decisions

Jun 17, 1960

127 N.L.R.B. 1301 (N.L.R.B. 1960)

S. FREDERICK SANSONE CO. 1301
snackbar employees , office clerical employees, professional employees, guards, and
all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act.
5. At all times on and after December 18, 1958, the Meat Cutters Union has
been the representative for the purpose of collective . bargaining of a • majority of,
the employees in the aforesaid unit, and has been and is the exclusive representative
of all the employees in said unit for,the purpose of collective bargaining in respect
to rates of pay, wages , hours of employment, or other conditions of employment.
6. By refusing to bargain collectively with the Meat Cutters Union on and after
December 18, 1958, Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and' ( I) of the Act.
• 7. The strike by Respondent 's employees, which began on-December 8,•1958, was
caused by the discriminatory lockout and discharge , and was prolonged by Re-
spondent 's- other unfair labor practices as above found.
8. The aforesaid unfair labor practices , having occurred in connection with the
operation of Respondent 's business, as set forth , in section I, above, , have a close,
intimate, and substantial Telation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning ' of Section 2(6) and
(7) of the Act. -
[Recommendations omitted from publication.]
S. Frederick , Sansone d/b/a S. Frederick , Sansone Co . and Wine,
Liquor and Distillery Workers Union , Local 1 a/ /w Distillery;
Rectifying, Wine and Allied International Union, AFL-CIO.
Case No. 1-CA-29f3.. June 17'.1960.
DECISION AND ORDER
On March 4, 1960, Trial Examiner Vincent M. Rotolo issued his
Intermediate Report in the above-entitled proceeding, and on March
14 1960, an erratum, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices, and recommending
that he cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Charging Union filed excep-
tions and a motion to reopen the record.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
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 Inter-
mediate Report, the exceptions,' the brief, and the entire record in
I Counsel for the Union , who was not present at the hearing, filed , with the Union's
exceptions , a motion to reopen the record to present testimony of union representatives
127 NLRB No. 145.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the case, and hereby adopts the findings,a conclusions, and recommen-
'dations of the Trial Examiner with the following modifications and
additions.
We agree with the Trial`Examiner that the record does not establish
that-the Respondent refused to bargain with the Union in violation
of Section 8(a) (5) of the Act. The Trial Examiner found that the
Union represented a majority of the Respondent's, employees' in an
appropriate unit, but that'there was insufficient evidence to show that
the Union made a proper and timely demand upon the Respondent for
recognition as the collective-bargaining representative of these em-
ployees. The General Counsel and the Union maintain that such a
demand was made. They'rely primarily 3 upon a letter which, as the
General Counsel and the Respondent stipulated at the hearing, counsel
for the Union, if present, would testify that he addressed and mailed
to the Respondent on July 2, 1959. The Respondent denied, however,
that this letter was received. The Trial Examiner found that the
stipulation created a presumption of receipt, but that this presump-
tion was overcome by the Respondent's unequivocal denial of receipt.
The General Counsel excepts on the ground that the denial created
a question of fact, which was not resolved as the Trial Examiner failed
to make express credibility findings with regard to the testimony
denying receipt of the letter. Although we agree with the General
Counsel that the denial of 'receipt of the letter created an issue of fact,4
it appears that the Trial Examiner did, in effect, credit Frederick
Sansone's "unequivocal denial of receipt." We so find.
In any event, whether the Trial Examiner credited Frederick
Sansone's denial or deemed the fact of denial sufficient to rebut the
regarding the allegation that theiRespondent refused to bargain with the Union As there
is no showing , in the motion or,in the attached supporting affidavits , that this evidence
was newly discovered or unavailable at the time of the hearing , the motion to-reopen is
hereby denied.
a In the absence of exceptions , thereto, we adopt pro forma the Trial Examiner's find-
ings that the Respondent interfered with, restrained , and coerced Its employees by interro-
gation, threats , and promises of benefit , in violation of Section 8(a) (1) of the Act, and
his findings that the Respondent did not discriminatorily lay off or reduce the hours of
employment of his employees, in violation of Section 8(a) (3) of the Act. As it would not
affect the scope of our Order, we do not pass on the Trial Examiner ' s refusal to find a
violation of Section 8(a)'(1) on the basis of Respondent 's, promises to employees Cretella
and Crisci in October or November 1959.
. 3 We find no merit in the General Counsel's contentions that the Respondent was put on
notice of the Union 's desire for'recognition and bargaining by certain statements of em-
ployees who had signed cards in the Union and by the Union 's filing of a petition. The
Board will normally find a refusal to bargain in violation of Section 8(a) (5) of the Act
only where a clear and explicit demand for recognition or bargaining has been made by
" the statutory representative of the employees .. . . 11 John H. McCann, et al., d/b/a
McCann Steel Company, 106 NLRB 41, 49
A See 31 Corpus Juris Secundum , Evidence , sec. 136; Wigmore on Evidence , 3d ed.,
vol. IX, sec . 2519 Union Carbide Nuclear Company , etc., 117 NLRB 1126, and the other
cases cited on this matter in the Intermediate Report, which appear to indicate that the
presumption of receipt of properly addressed and posted mail is overcome by a denial of
receipt, are Board representation proceedings in which hearing officers, forbidden by
Section 9 ( c) (1) of the Act to make recommendations , normally do not make credibility
resolutions.
S. FREDERICK SANSONE CO. 1303
presumption of receipt, we- are satisfied that the evidence does not
establish that the Respondent refused to bargain with the Union in
violation of the Act. The Union's request in the letter of July 2, 1959,
which is set forth in section III, C, 3 of the attached Intermediate
Report, seeks a conference at which the Union "will submit proof'of
representation and will request, upon such proof of majority repre-
sentation, recognition and thereafter collective bargaining negotia-
tions...." The letter does not propose a date for such a conference,
nor a date for the Respondent to communicate, as also requested, with
either counsel for the Union or the office of the Union. Moreover, this
letter was mailed, according to the stipulation, in New York City on
July 2, 1959, a Thursday. It probably could not have been received
by the Respondent before Friday, July 3, or Monday, July 6. On July
6, however, the Union filed a petition for an election,' of which the
Respondent was promptly notified by the Regional Office of the Board.
Therefore, the Respondent, even if it received the Union's letter of
July 2, would, almost simultaneously, have received notice of the
Union's request= for an election.
It is apparent from all the evidence, and we find, that the Respond-
ent thereupon decided, in good faith, to await the outcome of the
election to determine his future relations with the Union. This is
shown by, among other things, his prompt agreement, on July 14, to
the holding of a consent election. The Union, on July 16, requested
permission to, withdraw from the consent-election agreement on the
ground that the Respondent was interfering with, restraining, and
coercing employees who had signed membership application cards to
force their withdrawal from the Union. However, not only were all
the allegations that the Respondent discriminated against union ad-
herents by layoffs and reductions in their hours of work found to
be without merit, to which no exception was taken, but, furthermore,
the only violation of the Act found to have occurred after the petition
was filed was one coercive remark which the Respondent made, in a
burst of anger, to two employees on August 6,1959.6
The consent election was deferred as a result of the Union's filing
of charges. When the Regional Director of the Board refused to
issue a complaint on these charges, and while the Union's appeal to
the General Counsel from this refusal was pending, the Union re-
quested that the election be held. The Respondent again cooperated
and agreed to a consent election, which was held on September 25,
1959. The election results were inconclusive as there was a tie vote
and, when the General Counsel decided that a complaint should be
issued in the present case, the representation proceeding was dismissed
before a ruling could be made on the challenged ballots.
Case No. 1-RC-5684
u Like the Trial Examiner, we find Joy Silk Mills, 85 NLRB 1263, on which the General
Counsel relied, inapplicable to the facts of this case.
i
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances, and upon the entire record, we are coll-
vinced, and find, that the Respondent has not engaged in unfair labor
,practices within the meaning of Section 8 (a) (5) -of the Act, and we
shall, accordingly; dismiss those allegations of the complaint.
ORDER
Upon the entire recor&in this case, and pursuant to Section'10(c)
of the National Labor-Relations At, as amended, the National Labor
Relations Board hereby orders that the Respondent, S. Frederick
Sansone d/b/a S. Frederick Sansone Co'., Branford, Connecticut, his
representatives, agents,'successors, and assigns, shall :
1. Cease and desist from': ' - '
(a) Interrogating his employees concerning their union affiliations,
activities, or sympathies,in a ,manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1) of the, Act. '
(b) Making threats of ,economic or other reprisals against, or
promises of benefit to, his employees to induce them to give up their
support of or adherence to Wine, Liquor and Distillery Workers
Union, Local 1 a/w Distillery, Rectifying, Wine and Allied Interna-
tional Union, AFL-CIO, or any other labor organization, as their
representative for the purpose of collective bargaining.
(c) In any-like or related manner interfering with, restraining, or
coercing his employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing; or to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from :any or all of such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as authorized in Section 8(a) (3)
of the Act,' as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at his plant in Branford, Connecticut, copies of the notice
attached hereto marked "Appendix." I Copies of said notice, to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by the Respondent or his representatives, be posted
by the Respondent immediately after receipt thereof, and be main-
tained by him for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
T In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
S. FREDERICK SANSONE CO. 1305
(b) Notify the Regional Director for the First Region, in writing,
within 10 days from the date,of this. Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that the, complaint be, and- it hereby' is,_ dis-
missed insofar as it alleges that the Respondent discriminatorily laid
off or'reduced the.hours of employment of,his employees; in violation
of Section 8(a) (3) of,the• Act,: or that the Respondent unlawfully
refused to bargain with* the collective-bargaining representative of a,
majority of his employees in' an, appropriate unit, in violation of
Section 8(a) (5) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to ,a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations •Act, as amended; I hereby' notify'my,employees,,that:
I'WILL NOT interrogate my'employees concerning their union
affiliations, activities, or sympathies.,
I WILL NOT make any threats of economic or other reprisals
against or promises of benefit to my employees to induce them
to give up their support of •oi adherence to the Wine, Liquor and
Distillery Workers. Union, Local 1 a/w Distillery, Rectifying,
Wine and Allied International Union, AFL-CIO, or any other
labor organization.
I WILL NOT in any like or. related manner interfere with, re-
strain, or coerce my employees in the exercise of the right to
self-organization, to "form labor organizations, to jgin or assist
the above-named or any other'labor organization, to bargain col-
lectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of 'collective
bargaining or other mutual aid or protection, or to'refrain from
any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959. ,
S. FREDERICK SANSONE D/B/A
S. FREDERICK SANSONE CO.,
Employer.
Dated---------------- By----------------------------=--------
(Representative ) '(Title)
This notice must remain' posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE. REPORT
STATEMENT OF THE CASE
Upon charges and amended charges filed by the Union above named , hereinafter
referred to as the Union, against'the Company above named, hereinafter referred
to as the Respondent, the Generals Counsel of the National Labor Relations Board,
hereinafter referred to as the Board , issued and served a complaint against the
Respondent on October 15, 1959, which alleges that he had engaged in unfair labor
practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and
(7) of the National Labor Relations Act, as amended, 61 Stat. 136, hereinafter
referred to as the Act. The Respondent thereafter filed an answer to the complaint
denying the commission of the unfair labor practices alleged therein . On December
21, 1959, a hearing was held before the Trial Examiner designated to receive testi-
monial and other evidence from the parties to the proceeding. The General Counsel
and the Respondent were 'represented by counsel at said hearing. The Charging
Union did not enter an appearance or otherwise participate in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues was afforded to all parties at said hearing.
With respect to the unfair labor practices the complaint alleges, in substance, that:
(1) On and after June 29, 1959, the Respondent interfered with, restrained, and
coerced his employees, who were seeking to be represented by the Union for collec-
tive-bargaining purposes , by making threats of economic reprisals against and
promises of benefit to said employees to induce them to give up the Union; (2)
beginning with July 2, 1959, the Respondent discriminatorily reduced the hours of
work of three of its employees who had selected the Union as their collective-
bargaining agent; (3) about the second week in August 1959, the Respondent dis-
criminatorily laid off employee Anthony Crisci for a period of 2 weeks because he
had selected the Union as his collective-bargaining agent; and (4) the Respondent
refused to bargain collectively with the Union on and after July 2, 1959, notwith-
standing that said Union had been authorized by a majority of the employees, in an
appropriate bargaining unit of the Respondent 's window decoration employees, to
represent said unit for collective-bargaining purposes.
At the hearing the Respondent' denied the jurisdiction of the Board, although he
had admitted in his answer that he received more than $50,000 worth of display
materials from sources located outside the State of Connecticut.,
At the close of the General Counsel's case the Respondent's counsel moved for
a dismissal of the complaint on the ground that the Board did not have jurisdiction
over the Respondent's business operations within the State of Connecticut. They
also moved for a dismissal of the complaint on the merits contending that the
General Counsel's representative had failed to prove that the Respondent had
committed any violations of the Act. These motions were denied without prejudice
to their renewal at the end of the hearing. At the close of the hearing the motions
were renewed and were argued orally on the record. Oral argument was also made
by the representative of the General Counsel on the record. After the hearing the
parties did not file written briefs although they were given an opportunity to do so.
Upon the entire record in the case and from his observation of the witnesses the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent S. Frederick Sansone (also known as Sidney Sansone), is engaged
in furnishing window display services by contract to liquor and drug concerns who
advertise and sell their products within the State of Connecticut. The Respondent
also manufactures , sells to, and installs commercial and industrial signs and other
display materials for, various industrial and commercial concerns who conduct
industrial expositions, sales meetings, and other trade conferences within the State
of Connecticut. All of the above operations are conducted from the Respondent's
place of business located at Branford, Connecticut. The Respondent's purchases
of lumber and other materials to produce the industrial and commercial signs and
1 At the hearing also the Respondent testified that these materials belonged to and
were shipped to him by the liquor and drug concerns with whom lie has window display
service contracts. The Respondent's counsel requested that the Respondent be permitted
to withdraw his admission concerning the value of these materials The request was
granted without objection from the General Counsel's representative.
S. FREDERICK SANSONE CO. 1307
other display materials are purchased locally. However , the window display ma-
terials he installs for the liquor and drug concerns are sent to him by said companies.a
The Respondent also conceded that the major portion of his industrial sign and
display business is done with large industrial and commercial concerns who sell
their products on a national scale.3
He also conceded that almost all of the firms with whom he has window display
service contracts advertise and sell their products on a national basis and are located
outside the State of Connecticut ,4
He also conceded that some of the firms located within the State of Connecticut
with*whom he has window display service contracts advertise and sell their prod-
ucts both within and without the State of Connecticut.5
During the year 1958 the Respondent derived a gross income of $55,000 from
his window display service contracts with liquor manufacturing and drug concerns.
In the same year he derived an additional $ 55,000 from the manufacture , sale, and
installation of industrial and commercial signs and other display materials. Re-
spondent 's counsel contends that only the income derived from the -contracts which
the Respondent has with liquor manufacturing concerns should be considered in
determining whether the Board has jurisdiction in this proceeding.6 I reject this
contention because it is the policy of the Board to consider all of the operations of
an employer in determining whether it should exercise its jurisdiction, especially
where, as here, all of the operations are conducted from one location and under one
administration. See Emil Denemark, Inc., 120 NLRB 1059. Accordingly, since
it appears that the income from the sale of the Respondent 's services and display
materials to firms located outside the State of Connecticut, exceeds the sum of
$50,000 and that he receives window display lithograph materials from liquor and
drug concerns located outside the State of Connecticut in connection with the per-
formance of his window display service contracts, which are valued at in excess
of $50,000 annually , I find and conclude that the Respondent 's business operations
meet the Board's standards of direct out-of-State inflow and outflow of services
and/or materials applicable to firms of a nonretail nature. See Siemon's Mailing
Service, Inc., 122 NLRB 81.
II. THE LABOR ORGANIZATION INVOLVED
Wine, Liquor and Distillery Workers Union, Local I affiliated with Distillery,
Rectifying , Wine and Allied International Union , AFL-CIO , represents employees
of employers engaged in the liquor-manufacturing and related industries located
in New York State and adjacent areas including the State of Connecticut. Its
headquarters are located in New York City. The Respondent concedes, and I find,
that the Union is a labor organization within the meaning of the Act.
III. TFIE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On or about June 6, 1959, the Respondent called his window display depart-
ment employees to a meeting and informed them that their department had not
shown a profit during the first 5 months of the year and consequently he was
compelled to reduce the costs of operating that department. Accordingly he
announced that until further notice gasoline allowances for travel to employees
O At the hearing the Respondent testified he did not know the value of. the materials
sent to him annually by these concerns although he admitted that they come to him from
places located outside the State of Connecticut. In his original answer he admitted that
in 1958 the value of these materials was more than $50,000. He also admitted that in a
representation proceeding initiated by the Charging Union in July 1959 (1-RC-5084), he
had stipulated that the value of these materials exceeded the sum of $50,000 in 1958.
On the basis of these admissions, I find that during the year 1958 the Respondent received
lithograph window display materials from liquor and drug concerns located outside the
State of Connecticut for Installation by the Respondent at retail outlets located within
the State of Connecticut, which were valued in excess of $50,000.
3 Some of these firms are Olin Industries, Inc., Marlin Firearms Company, Winchester
Firearms Co., Sargent & Co., Eckland Manufacturing Co., Plasticrete Manufacturing
Company.
4 Some of these firms are National Distillers, Forman Distillery, Brown Distillery,
Rexall Drug Co, Geritol, Inc.
5 For example G F. Heublein & Bro , and Breyer's Ice Cream Company.
6 During 1958 the income from liquor -manufacturing concerns was $47,000.
1308 DECISIONS OF.,NATIONAL -LABOR= RELATIONS BOARD
using their own cars to make window display installations was-being discontinued.
He also announced that the per unit rate of pay for liquor and drugstore window
display installations was being reduced?
' On June 12, 1959, Thomas Cretella, one of the Respondent's window decorators,
who was ill at home and had not attended the meeting of June 6, 1959, received a
pay envelope for work previously performed by him. In this envelope was a
notice from the Respondent that his gasoline allowances were being discontinued
and that until further notice he would be paid on a per unit display installation basis
instead of a weekly salary basis 8, -
Cretella called the Respondent when he received the notice of the change in his
work payments and told him the new arrangement would make it impossible for
him to meet his existing financial obligations since he had recently purchased a new
car relying upon his fixed weekly salary and a raise in pay which the Respondent
had recently given him. The Respondent told him, however, that business was so
bad that he would have to work under the new arrangement as the other window
decorators would have to do. When Cretella continued to protest the Respondent
bluntly told him that if he did not like the new arrangement he could look for
work elsewhere.
Angered by the Respondent's indifference to his financial situation, Cretella per-
suaded two other window decorators working for the Respondent, Anthony Antonucci
and Anthony Crisci, to go with him to a meeting of the Union which was being
held at New Haven on June 24, 1959. At that meeting they signed cards authorizing
the Union to represent them for collective-bargaining purposes. -On Saturday, June
27, 1959, Cretella obtained the signatures of two other window decorators of the
Respondent,' William Priolo and Pasquale (Pat) Ragaini.9
On June 29, 1959, while Cretella, Antonucci, and Crisci were loading display
materials in their cars outside the Respondent's place of business, the Respondent
'approached Cretella and told him that he was of the understanding that he, Cretella,
had gone to a union meeting with Antonucci and Crisci. When Cretella asked him
how he knew about-it the Respondent replied, "I have ways of getting information."
Cretella then admitted that they had attended the union meeting. He also ventured
the information that he and four other window decorators, mentioning their names,
had already signed union cards. ; Visibly perturbed by this information the Respondent
left Cretella and entered the building., He returned shortly thereafter and told
Cretella, "Those cards don't mean anything." He then reproached Cretella for going
to the union meeting without consulting with him first about it and told him he had
done a foolish thing, because the Union would ruin his business and they would lose
their jobs.
After Cretella left to make his display installations , the Respondent went to
Antonucci and Crisci and told'them he knew that they had signed cards to join a
union. He accused them of being ungrateful towards him because of the many
favors he had done for them in the past, including the loan of money when they
needed it. He told them further that he would shut down his business if he had to
deal with the Union and that they would all lose their jobs. Antonucci and Crisci
attempted to explain that the Union might be a protection to him as well as to them-
selves in the event the Union organized the liquor firms with whom the Respondent
had contracts but the Respondent told them that the Union was no good citing the
example of an employer in the same business in Massachusetts whose employees
had been organized by the Union and later lost their jobs because their employer
could no longer operate his business at a profit. He finished the conversation by
telling them, "All right, I'll-fix you guys."
On Thursday, July 2, 1959,1 the Respondent informed Cretella, Antonucci, and
Crisci that they were not to report for work on Fridays of each week thereafter unless
they were specifically requested to do so. Although Cretella had been told on this
day not to report for work on 'the next morning, he went to the Respondent's place
of business on the morning of July 3, 1959, and pleaded with the Respondent to
give him some work to do as he needed the money badly. The Respondent told him
7 There is no contention by the General Counsel's representative that this action of the
Respondent was a violation of the Act.
8 Cretella has been employed by the Respondent for over 20 years and was being paid
on a weekly 'salary basis prior to this time. He was unaware of the meeting of June 6,
1959, when he received the notice.
9 Ragaini testified that Cretella obtained his signature by threats of loss of job and in-
crease in the initiation fee if he did not sign up then. However, I find that Cretella made
no threats but only used arguments and opinions as to the possible consequences which
they might all suffer if they waited until a later date to join the Union.
S. FREDERICK SANSONE CO. 1309
there were no display assignments for him on that day but offered to take him along
as a helper on some display installations which he, the Respondent, was making on
that day. Cretella agreed and the two spent the day together out in the field until
late evening . Cretella credibly testified that during this day, the Respondent con-
tinually apologized for having treated him so badly, admitting he had made a mistake
in doing so. He further testified that the Respondent pleaded with him during the
entire day to reconsider bringing the Union into his business, offering to put him
once more on a weekly salary basis and pay him for whatever loss he had sustained
by being taken off a weekly- salary basis. Cretella told him, however, that he could
not withdraw his support of the Union since he had made a pledge to the others who
had signed union cards with him that he would not change his mind. The Respondent
assured him that if he withdrew he would take care of the others, mentioning
specifically Priolo and Ragaini, who were described by him as being loyal and staunch
friends as well as employees . However, Cretella would not agree to give up the
Union.
• On July 6, 1959, the Union filed a petition with the Board's Regional Office in
Boston to be certified as the collective-bargaining agent of the Respondent's window
decorating employees.io
On July 14, 1959, Respondent's attorney, Henry J. DeVita, went to the Board's
Regional Office in Boston and signed an agreement for the holding of a consent
election among the Respondent's window decorators on July 24, 1959. There is no
evidence that any representative of the Union was present at the conference held in
the Regional Office at this time.
On July 16, 1959, the Union requested the Regional Director to permit it to
withdraw from the consent-election agreement it had executed. alleging that the
Respondent was interfering with, restraining, and coercing the employees who had
signed union cards, to force them to withdraw their support of the Union. The
request was granted and on -the following day, the Union filed 8(a)(1) and (5)
charges against the Respondent. The Regional Director notified the Respondent of
the filing of the charges and that the consent election previously agreed upon was
being postponed indefinitely until the charges were disposed of by the Regional
Office. In the latter part of July nand early August 1959, a Field Examiner of the
Board's Regional Office went to Branford and obtained affidavits from Cretella,
Antonucci, and Crisci. He also had interviews with the Respondent and his attorneys.
On the morning of August 6, 1959, the Respondent met Antonucci and Crisci in
front of the Respondent's place of business . As he entered the building he angrily
shouted to them, "When this is all over, you guys will be out."
On the basis of the foregoing facts, I find and conclude that the Respondent en-
gaged in acts of interference, restraint, and coercion against his employees beginning
with June 27, 1959, to induce them to give up the Union as their collective-bargaining
agent Said acts included the following: (1) Interrogating them concerning their
attendance at a union meeting; (2) telling them that they would suffer.a layoff if
the Union was selected as their bargaining agent ; (3) making threats of economic
and other reprisals to induce them to give up the Union as their bargaining agent;
and (4) making financial and other promises of benefit to induce them to withdraw
their support of the Union.ii
B. The alleged acts ' of discrimination
During the summer months of July and August 1959, the Respondent laid off
the three employees on some but not all of the Fridays which occurred during those
months. Cretella was laid off on one Friday during the month of August and
Antonucci on five Fridays during both July and August. In addition to losing three
Fridays, Crisci was laid off for 2 weeks during the latter part of August The
representative of the General Counsel contends that these layoffs were acts of eco-
10 The General Counsel alleges that the Union made a demand for bargaining upon the
Respondent prior to the filing of this petition by a letter sent to him by.the Union's
attorney, Arnold Cohen, on July 2. 1959 The Respondent denies ever receir'ng this
]otter This issue is discussed below in the section dealing with the Respondent's alleged
unlawful refusal to bargain
"Although employees Cretella and Crisci credibly testified that sometime in October or
November 1959 the Respondent also promised them financial benefits to induce them not to
support'the Union at the hearing on the charges filed by the Union in their behalf, I make
no separate'or independent finding of violation of Section 8(a) (1) of the Act based on this
incident inasmuch as the General 'Counsel did not see fit to amend the complaint at the
hearing to specifically allege such conduct on the part of the Respondent as an inde-
pendent violation of Section 8(a) (1) of the Act. 0 11
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nomic reprisal taken by the Respondent against these employees because of their
refusal to comply with his requests that they withdraw their support of the Union.12
Since the Fridays-off program 'was initiated among the three employees on July 3,
1959, and only a few days after the Respondent told two of the three employees that
he would "fix them" for having joined the Union, a prima facie inference arises that
the Friday layoffs among the three employees during the months of July and August
1959 were motivated by their union activities. Unless the Respondent can adequately
and convincingly rebut this inference by proof that these layoffs were motivated by
legitimate business or other considerations not related to the employees' union
activities, he must be held to have unlawfully discriminated against the three em-
ployees in violation of Section 8(a)(3) of the Act.
The Respondent asserts that the Fridays-off program was put into effect on
July 3, 1959, because of worsening business conditions which had been bad even
prior to that time and that this was a continuation of an economy program which
he had initiated on June 6, 1959. He further asserts that he gave the three em-
ployees a full week's work during July and August 1959 whenever the volume of
work warranted their reporting for work on Fridays as well as the other days of the
week. He further asserts that business conditions were so bad in the window
display service part of his business during the summer of 1959 and his income from
that part of his business was so low during the first half of 1959 that he was
compelled to also lay off his clerical staff 1 day a week during the summer of 1959.
As to the layoff of Crisci during' the last 2 weeks of August, the Respondent asserts
that this came about when Crisci injured his hand on the job about the middle of
August 1959. He testified that Crisci came to him then and suggested that since
there was not much work for him at that time he be placed on a layoff status for
lack of work while his injured hand healed so that he could make a claim for un-
employment compensation benefits. The Respondent further testified that he ac-
cepted Crisci's suggestion and gave him a layoff slip at that time. He further
testified that about a week later Crisci called to tell him that he wished to return
to work. He admits he told Crisci to continue on layoff status for an additional
week but says that he did this because Crisci told him then his injured hand had
not yet completely healed. He added that since there was no real need for Cresci's
services at that time he suggested he take another week off. The General Counsel's
representative contends that these explanations are mere pretexts to cover the real
motive of the Respondent which, he contends, was to coerce the three employees
to give up their support of the Union. He points out that the records of the
Respondent show that the Fridays-off program was not applied to the other three
regular window decorators which the Respondent had on his payroll at that time
and also that the three employees were the only employees whose earnings were
affected by the alleged slack'period during the summer of 1959. He also points out
that the Respondent had never laid off any employees during the summer slack
period in previous years.
The Respondent explained, however, that there were special reasons why the
Fridays-off program was not applied to employees Priolo, Ragaini, and Lamitie.
Priolo, he explained, is a highly skilled decorator who was hired primarily to make
12 At the hearing the General Counsel's representative added another alleged act of re-
prisal which was not set forth ins the complaint. This additional act, he alleges, was the
withholding of extra window display units from the three employees for about 1 week
following the conversation of the Respondent with them on June 29, 1959. It is and
was the practice of the Respondent to give his window decorators two or three extra
window units each day during slow periods so that they could make "pickups" of orders
for window decorations on their town while they were out in the field. The Respondent
was paid for these extra orders by the firms with whom he had contracts. The Respond-
ent asserts that at the time in question there was a shortage of materials and of contract
fund allotments from the companies and that the employees were not given the extra
materials for a few days until additional materials and funds arrived from the companies.
I do not pass upon this issue since this act of alleged discrimination was not set forth in
the complaint and it was not sufficiently litigated at the hearing. The Respondent's
records of window display materials received or on hand at the time in question and the
records of funds paid to hint by the firms whose display materials were being installed
were not available for inspection at the hearing. Hence, I am not in a position to evaluate
the credibility of the Respondent's explanation on this aspect of the case. Since the
absence of these records was due; to the failure of the General Counsel's representative to
include this act of alleged discrimination in the complaint and since he made no motion,
during the hearing, to include it in the complaint by way of amendment, I do not consider
the matter as being an issue in this proceeding
S. FREDERICK SANSONE CO. - 1311
special window display jobs and,also industrial and commercial display work as
well as liquor and drugstore window decorating . This special work could not be
done by the three employees . Although there was a slackening of work among the
employees who regularly made liquor and drug window display installations during
the summer of 1959, the industrial display section employees were busy and Priolo
had enough work in that section-to justify his exclusion from the Fridays-off
program. As to employees Ragaini and Lamitie, the Respondent explained that
since these employees do not report for work daily at Branford and work on their
own during the week out of their respective homes in the separate areas of the
State assigned to them, it was not feasible to lay them off 1 day of the week
during the slack period because Friday , the day of the week when liquor and drug
window decorators are usually laid off whenever there is a shortage of work, is
the day when Ragaini and Lamitie travel from their homes to Branford to pick
up the display materials and work out their assignments for the following week
with the Respondent.
A careful consideration of these explanations and of the evidence submitted by
the Respondent in support thereof convinces me that the Respondent did not
unlawfully discriminate against the three employees by applying the 1-day-a -week-off
program to them during the summer of 1959. The - outstanding fact in the record
which convinces me that the Respondent did not have the Union in mind when he
applied this program to the three employees is that Cretella , the leader of the union
movement and the keyman in the group of the alleged discriminatees , was laid off
on only one Friday during the entire period in question . Another fact which
strongly negates the theory advanced by the General Counsel's representative is that
the Respondent applied a similar program to his entire clerical staff during the
period in question including the office manager who is his sister - in-law. The Re-
spondent 's financial records also show that during the first half of 1959 the
Respondent 's business was not , as compared to the same period in previous years,
showing a profit. It was because of this reason that the Respondent was compelled
for the first time to initiate a drastic economy program in his business on June 6,
1959. Finally the record shows that during the last week in August 1959 the
Respondent gave Cretella and Antonucci special work around the plant in order
to avoid laying them off for lack of liquor and drugstore window decoration woik
in the area of the State usually assigned to the three employees . In view of the
foregoing I am compelled to the conclusion that the Respondent did not have the
union activities of the three employees in mind when he laid them off on some
Fridays during the summer of 1959. 1 find that this part of the General Counsel's
case is not supported by a preponderance of the substantial evidence contained in
the record.
I am also convinced that Crisci 's layoff during the last 2 weeks in August had
no relation to his union activities. Crisci admits that he was injured on the job
sometime about the middle of August 1959 and that he agreed to take a layoff
slip from the Respondent so that he could claim unemployment benefits while his
injured hand was healing . The only complaint that Crisci seems to have against
the Respondent is that the Respondent did not permit him to return to work after
he had been home 1 week . The Respondent admits Crisci called him about 1
week after his layoff to tell him that he was ready to return to work. He also
admits that he suggested to Crisci that he stay at home an additional week because
there was very little liquor and drugstore window display work for him at that
time but asserts that because Crisci told him that the cut on his hand was not
completely healed and work was still slow he told Crisci to stay on layoff status for
another week . I credit this explanation because the record shows that it was
during this period that the Respondent gave Cretella and Antonucci special work
around the plant in order to avoid laying them off for lack of window decoration
work in the area of the State covered by the three employees . Finally, Crisci's
testimony that the Respondent 's refusal to permit him to return to work was
discriminatory because the Respondent hired an outside employee shortly after he
asked the Respondent to permit him to return to his work is adequately refuted by
the uncontradicted testimony of the Respondent , that the employee in question was
hired for only 2 days to do some special electrical work in connection with a
special display job being performed for the Heublein Company in New Jersey.
The record also shows that as soon as work increased in early September 1959
Crisci was recalled to work by the Respondent and he was given work without any
discrimination thereafter . In view of the foregoing I conclude that the General
Counsel 's representative has failed to sustain this allegation of the complaint by a
preponderance of the substantial evidence contained in the record.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged refusal to bargain
1. The appropriate unit
The parties stipulated at the hearing, and I find, that a unit of all window trimmers
and outside display department employees of the Respondent excluding all other
employees, office clerical employees, shipping and receiving employees, guards,
professional employees, and supervisors constitutes a unit appropriate for collective
bargaining purposes.
2. The Union's majority status
The parties stipulated at the hearing that on June 27, 1959, the Respondent had
six employees who regularly performed outside window decorating and display
work.13
The Respondent contends that two other employees, Harold Flynn and Michael
Como, should be included in the bargaining unit because they perform window
decorating and other outside display work. Harold Flynn testified that he spends
most of his time at the Respondent's place of business at Branford working as a
stock clerk and also as general utility man in the Respondent's sign and display
manufacturing shop. However, he asserts that about 20 percent of his work during
the year is spent out in the field doing window decorating and other display work.
However, I find that his outside work is not regular but sporadic in nature and is
only performed in emergency situations during rush seasons and whenever a regular
window decorator and outside displayman is not available because of illness or other
reason. I conclude that he is essentially an inside worker performing stockroom
and sign painting shopwork. For this reason I conclude that he is not a member of
the bargaining unit described above.
Michael Como testified that he spends most of his worktime during the year in
the* sign and display manufacturing shop of the Respondent at Branford, working
as a helper and general utility man for the two regular sign shop employees,
Dominic Torre and John Lanzeri.` He asserts, however, that about 20 percent of
his worktime is spent out in the field doing window decorating and other display
work. However, I find that his outside work is sporadic in nature and is performed
only during rush seasons and when a regular outside employee is not available
because of illness or other reason. I conclude that Como is essentially an inside
employee of the Respondent who works as a helper and general utility man in the
sign and display manufacturing shop. For this reason, I conclude that he is not
a member of the bargaining unit described above.
• In any event, whether the bargaining unit consisted of six or eight employees I
find that the Union achieved majority status on June 27, 1959, inasmuch as it had
secured the signatures of five of the employees who composed the unit described
above on that date.14
is Thomas Cretella, Anthony Antonucci, and Anthony Crisel were the regular employees
who did window decorating work in all areas of the State of Connecticut except Fairfield
and New London Counties. These employees reported daily to the Respondent 's place of
business for their display materials,and assignments. William Priolo performed special
window decorating work and also industrial display work. He also reports daily at the
Respondent's place of business for his materials and assignments. Pasquale (Pat)
Ragaini performs window decorating' work for the Respondent in Fairfield County working
out of his home in Seymour, Connecticut. Lee Lainitie performs similar work in New
London County working out of his home in Norwich, Connecticut. Both Ragaini and
Lamitie report to the Respondent's place of business in Branford once a week, usually on_
Fridays or Saturdays, to pick up their materials and assignments for the following week'
14 Proof of majority status was offered in the form of photostatic copies of the cards
signed by the five employees The General Counsel's representative indicated that the
original cards were in the possession of the Union's attorney in New York City. Respond-
ent's counsel objected to the intioduction of the photostatic copies of the cards unless the
originals were submitted for inspection.' The photostatic copies were admitted subject
to the originals being produced for inspection by Respondent's counsel. It was agreed by
respective counsel that the originals could be submitted hin 10 days after the close of
the hearing The Trial Examiner directed the General Counsel's representative to submit
the originals within the 10-day, period to Respondent's counsel for inspection. It ivas
agreed that unless Respondent's counsel renewed the objection after inspection of the
originals , the, photostatic copies, could be received in evidence in lieu of the originals
Not hai ing• received' any objection to-the receipt of the photostatic copies from the Re-
spondent's counsel since the 'close of the hearing, the photostatic copies are hereby' re=
ceived in evidence and made a part,of the record
S. FREDERICK SANSONE CO. 1313
3. The alleged demand for bargaining of July 2, 1959
Proof of the Union's alleged demand for bargaining was submitted by the General
Counsel's representative in the form of a carbon copy of a typewritten letter sent by
the Union's attorney, Arnold Cohen, to the Respondent on July 2, 1959. The letter
contained the following:
JULY 2, 1959.
S. FREDERICK SANSONE CO.
Main Street, Short Beach Road
Branford, Conn.
GENTLEMEN: I am the attorney for the Wine Liquor and Distillery Workers
Union Local 1 whose offices are located at 1860 Broadway, New York City.
I have been informed by the Union that they have been designated by more
than a majority of your outside display department employees as their sole and
exclusive collective bargaining agent.
The Union desires a conference at which time it will submit proof of repre-
sentation and will request, upon such proof of majority representation, recogni-
tion and thereafter collective bargaining negotiations covering terms and
working conditions of the employees represented by the Union.
Will you kindly communicate with my office or the office of the Union as to
the time and place when a conference can be arranged for the purposes set
forth above.
-Very truly yours,
ARNOLD COHEN.
AC: BS
Respondent 's counsel made no objection to the carbon copy of the letter being
received in evidence and stipulated that if Attorney Arnold Cohen had been called
as a witness by the General Counsel's representative he would have testified that
he prepared and deposited the letter in question in the post office in New York City
on July 2, 1959, addressed to the Respondent 's place of business in Branford,
Connecticut.
• However, Respondent 's counsel contended that the letter in question was never
received by the Respondent . To support this contention the testimony of three wit-
nesses was offered. The Respondent testified that he never received the letter in
question but asserted that he spends very little time in his office and that he delegates
the responsibility of receiving and answering all communications addressed to him
to his brother , Frederick Sansone, or to his sister-in-law, Beatrice Sansone, who are,
respectively , his general manager and office manager. Beatrice Sansone testified
that she spends all of her worktime in the Respondent 's office located at Brandford
and that she never received the letter in question . She asserts , however, that the
mail is not delivered to her personally when it arrives but is given directly to her
husband, Frederick Sansone. Frederick Sansone testified that he spends almost all
of his worktime in the office at the Respondent's place of business and that all mail
is given to him directly when it arrives . He unequivocally denies ever receiving
the letter in question. . • -
The representative of the General Counsel submitted no other proof of the delivery
of the letter in question to the Respondent's place of business . In this state of the
record I find that the 'General Counsel's representative has failed to sustain the
burden of proving that the letter in question was actually received by the Respondent.
Although a presumption of delivery to destination arises from proof of the proper
addressing ,and posting of a letter in the United States mails, this is a presumption of
fact which can be rebutted by the alleged addressee of the letter. It has been held
by the Board that the unequivocal denial of receipt , by an alleged addressee of a
letter which has been properly addressed' and deposited in the United States Post
Office Department , has the effect of overcoming the presumption of delivery of the
letter to its destination and that other proof of delivery must be submitted before a
finding of receipt of the letter 'by the - alleged addressee can be made. - See Union
Carbide Nuclear Company, et al., 117 NLRB 1126; Beacon Manufacturing Company,
94 NLRB 881; Miles Laboratories , Inc., 92 NLRB 23; United Statei • Rubber Com-
pany, 62 NLRB 694. '!
"Since the General ` Couhsel 's representative failed to submit other proof that the
letter in question was-actually delivered to the Respondent 's place of business, I find
and conclude that he has failed to sustain the burden of proving that the letter was
received by the Respondent .: ' ' • r ' • . • • • '
- The General CouiisePs representative conceded at the hearing that the Union made
no other demand for bargaining upon 'the'Respondent , either oral or in writing. In
5560940-61-vol, 127 84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact he concedes that there never was any other direct contact attempted by the
Union's officers or agents with the Respondent except through the letter allegedly
sent by the Union's attorney to'the Respondent on July 2, 1959. He contends, how-
ever, that even if it be found that the proof is insufficient to show that the Respondent
received the letter of July 2, 1959, the Respondent should nevertheless be held to
have refused to bargain with the Union because he rejected the Union's cards as
proof of the Union's majority during a conversation he had with employee Thomas
Cretella on June 29, 1959, and also because he informed the Regional Office of the
Board in Boston, shortly after the Union's petition for certification was filed on
July 6, 1959, that he would not recognize or deal with the Union until it established
its majority status in a Board-conducted election. He contends that under these
circumstances proof of a prior demand for bargaining from the Union upon the
Respondent should not be required since it is clear from the Respondent's own
statements to others that he would not have recognized and bargained with the Union
had it made such a demand. I reject this contention because the law is well settled
that before a finding of violation of Section 8(a) (5) can be made against an employer,
the General Counsel must prove; that a demand for bargaining was made by the
majority representative of the employees in an appropriate bargaining unit. See
N.L.R.B. v. Columbia Enameling & Stamping Co., Inc., 306 U.S. 292; N.L.R.B. v.
Valley Broadcasting Company, 189 F. 2d 582 (C.A. 6); Sam Zall, d/b/a Sam Zall
Milling Company, 202 F. 2d 499 (C.A. 9); John Waf}ord, d/b/a Waford Cabinet
Company, 95 NLRB 1407.
The Board has, on rare occasions, dispensed with the necessity of proving a demand
for bargaining as a prerequisite to a finding of violation of Section 8(a) (5) of the
Act. It has done so in a few cases where the special circumstances involved take
the case out of the operation of the general rule. In Old Town Shoe Company, 91
NLRB 240, the special circumstances which persuaded the Board to make an ex-
ception to the general rule were (1) the union had been the long-recognized bargain-
ing agent of the employees and '(2) the employer made it clear to the union by
public statements that it would refuse to bargain with it should it make a request for
bargaining. In another case, Van DeKamp's Holland-Dutch Bakers, Inc., 56 NLRB
694, the employer repeatedly refused to speak with or to receive any communications
from the union after he was notified by the union that it represented a majority of
his employees and embarked instead on a campaign to destroy the union's majority.
None of these special circumstances are present in the case before me There is
no evidence to indicate that the Respondent refused to speak with the union agents
or to receive any communications from it. Nor was the Union the recognized bar-
gaining agent of his employees at the time of the alleged refusal to bargain. Further-
more, there is no evidence to indicate that the Respondent was determined not to
bargain with the Union under any and all circumstances. His action, in the repre-
sentation proceedings, in consenting to the holding of an election indicates to me
that if the Union had been selected by a majority of his employees and was certified
by the Board, he would have accepted the Board's determination of the matter and
would have complied with his statutory obligation to bargain with the Union upon
demand. It is true that the Respondent attempted to coerce and intimidate his
employees because of their prounion sentiments both before and after the filing of
the petition but it does not necessarily follow from this that he would refuse to bargain
with the Union upon demand once the Union was certified by the Board as the
bargaining agent of his emnlovees. • See Mildred F. Kellow, d/b/a Kellow-Brown
Printing Company, 106 NLRB 28'
There are other considerations. however, which impel me to the conclusion that
the Joy Silk Mills case (85 NLRB 1263) upon which the General Counsel's repre-
sentative relies to establish a violation Section 8(a) (5) in this case, is not applicable
to the situation before me. In the Joy Silk Mills case the Board found that, after
a demand for bargaining had been made by the union, the employer insisted that it
seek a certification from the Board as proof of its claimed majority status. In that
case it appears also that after the union complied with the employer's request by filing
a petition for certification; with the Board he violated the Act in an effort to under-
mine the union's majority status. Here, on the other hand, there is no proof that
the Union made a request that the Respondent bargain collectively with it, either
before or after the filing of the petition.15
Furthermore, it appears that the Union filed its petition with the Board on July
6, 1959, without waiting for an answer from the Respondent to its alleged demand
13 There are serious doubts in my mind whether the letter of July 2 , 1959 , could be
construed as a present demand for bargaining even had it been shown that it was re-
ceived by the Respondent . See Waiford Cabinet Company, eupra.
. S. FREDERICK SANSONE CO. 1315
for bargaining of July 2, 1959, and without making any inquiry of the Respondent
why he was failing to honor its request for an opportunity to prove its majority
status on the. basis of the cards signed by the employees. Under these circum-
stances, the Respondent was entitled to assume that the Union was voluntarily
choosing to establish its majority status in the Board representation proceedings
and that it would defer making a request for bargaining until it had been certified
by the Board as the collective-bargaining agent of his employees. See Joseph
Solomon, an individual, d/b/a The Solomon Company, et al., 84 NLRB 226;
John H. McCann, et al., d/b/a McCann Steel Company, 106 NLRB 41.
This assumption was, no doubt, reinforced when the Union reinstated its consent
to an agreement it had made with the Respondent on July 14, 1959, in the repre-
sentation proceedings for the holding of an immediate election, after its charge
of refusal to bargain had been dismissed by the Regional Office and it proceeded with
the holding of the consent election on September 25, 1959, without waiting for a
final ruling from the General Counsel's office on its appeal from the dismissal of its
charges.is
Under these circumstances I conclude that the General Counsel's representative
has failed to prove that the filing of the Union's petition for certification on July
6, 1959, was the result of a rejection on the part of the Respondent to a demand
for bargaining made by the Union upon.him prior to the filing of the petition. The
evidence further shows that the Respondent consented to the holding of an immediate
election when he was notified by the Regional Office of the filing of the petition
and again when the Union's refusal-to-bargain charge was dismissed by the Regional
Office. Whatever delays occurred in the holding of the election thereafter were
not caused by the Respondent but by the Union itself. This, in my mind, is strong
evidence that the Respondent was not attempting to gain time to undermine the
Union's majority. It may be that the Respondent believed that the Union's majority
status had already been affected by the unfair labor practices which he had com-
mitted prior to the filing-of the petition but absent any proof that the Union made
a demand for. bargaining upon the Respondent prior to the filing of the petition
and that the Respondent rejected such a demand because the Union had not estab-
lished its majority at a Board-conducted election, it cannot be said that the
Respondent was relying upon the time gained by the processing of the Union's
petition to undermine the Union's majority status. If the Respondent needed
more time to accomplish this objective it cannot be said, in this case, that he
required-or otherwise caused the Union to file the petition for certification as part
of his plan to undermine the Union's majority. The Union, in effect, by its own
actions gave him the additional opportunity to undermine its majority status by
filing its petition for certification before getting a clear rejection. to a demand for
bargaining based upon its card majority.
After a careful consideration of all of the circumstances of this case, including
the failure of the Union to obtain a clear rejection to a demand for bargaining
based on its card majority status prior to the filing of a petition for certification with
the Board and the Respondent's willingness on two occasions during the pendency
of the representation proceedings to go to an-immediate election to determine
whether the Union represented a majority of his employees in the appropriate
bargaining unit, I cannot find that the Respondent ever required the Union to
prove its majority status by means of a Board-conducted election for the purpose
of gaining time within which he could undermine the Union's majority status. See
Emma Gilbert, et al., d/b/a A. L. Gilbert Company, 110 NLRB 2067.17
For the foregoing reasons I conclude,that the 8(a)(5) allegation of the complaint
has not been sustained and that it should be dismissed.
11 This election resulted in a three to three vote among the six employees conceded to be
members of the bargaining unit. Flynn and Como also voted but their ballots were
challenged by the Respondent on the ground that they were not members of the bargaining
unit. Before the Regional Director could rule upon the challenges, the General Counsel's
office reversed the Regional Office's dismissal of the 8(a) (1) and (5) charges filed by the
Union on July 17, 1959, and dismissed the representation proceedings on the ground that
no real question of representation existed
17 In view of this conclusion, I do not consider it necessary to pass upon the Respond-
ent's contention that the 8(a) (5) allegation be dismissed because of the rule enunciated
by the Board in the Louis Aiello, et al, d/b/a Aiello Dairy Farms case, 110 NLRB 1365,
that a union will not be permitted to establish its majority status, on the basis of cards
signed by the employees, in a complaint proceeding, after it has proceeded with and failed
to establish its majority status in a consent election conducted by the Board.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that he cease and desist therefrom and that he take certain
affirmative action designed to effectuate the policies of the Act. Because of the
Respondent 's unlawful conduct and its underlying purpose and tendency, I find
that the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed by the Act and that danger of their commission in the
future is to be anticipated from the course of conduct in the past . N.L.R.B. v.
Express Publishing Company, 312 U.S. 426. The preventive purpose of the Act
will be thwarted unless my recommendations are coextensive with the threat. In
order, therefore , to make effective the interdependent guarantees contained in
Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby
to minimize industrial strife which burdens and obstructs commerce , and thus ef-
fectuate the policies of the Act, I will recommend that the Respondent cease and
desist from in any manner infringing upon the rights of employees guaranteed in
Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of the Act.
2. By interfering with, restraining , and coercing his employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The allegations of the complaint that the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a)(3) and (5) of the Act have not
been sustained.
[Recommendations omitted from publication.]
Daw Drug Co., Inc. and Retail Store Employees Union, Local
345, AFL-CIO, Petitioner. Case No. 3-RC-2f64. June 17, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hymen Dishner, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
127 NLRB No. 152.