Snaider Syrup Corp.

National Labor Relations Board - Board Decisions

Sep 12, 1975

220 N.L.R.B. 238 (N.L.R.B. 1975)

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Snaider Syrup Corporation and Tulip Syrup Corpora-
tion and United Syrup and Preserves Employees
Union, Local 193, Retail, Wholesale and Depart-
ment Store Union , AFL-CIO and Local 918 , affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Party to the Contract . Case 29-CA-3911
September 12, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On May 13, 1975, Administrative Law Judge
James V. Constantine issued the attached Decision
in this proceeding. Thereafter, Respondents and the
Party to the Contract filed exceptions and supporting
briefs. The Charging Party also filed cross-exceptions
and the General Counsel filed cross-exceptions with
a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings,2 and
conclusions' of the Administrative Law Judge and
to adopt his recommended Order as hereafter modi-
fied.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondents Snaider
Syrup Corporation and Tulip Syrup Corporation,
Brooklyn, New York, their officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following paragraphs respectively
for paragraphs 1(i), 2(b), and 2(d).
"1(i) In any other manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed them in Section 7 of the Act.
"2(b) Cancel its collective-bargaining contract
with Local 918 until said Local 918 shall become the
majority representative of employees covered by said
contract unless and until certified as such representa-
tive by the National Labor Relations Board as the
exclusive bargaining representative of such employ-
ees, provided, however, that nothing herein shall re-
quire Respondents to vary or abandon any wage or
other substantive feature of its relations with its em-
ployees, which they have established in the perfor-
mance of said contract, or prejudice the assertion by
the employees of any rights they may have thereun-
der.
"2(d) Post at their place of business at Brooklyn,
New York, copies in English and Spanish of the no-
tice marked "Appendix." Copies of said notice, on
forms provided by the Regional Director for Region
29, after being duly signed by a representative of Re-
spondent, shall be posted by them immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not
altered, defaced, or covered by any other material."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i In additional support of the Administrative Law Judge' s reliance on the
affidavits of employees Jose Ramos and Jose Nunez as affirmative evi-
dence , see Starltte Manufacturing Company, 172 NLRB 68, 72 (1968); Calt-
fornta v Green, 399 U.S. 149, 154-155 (1970), De Sisto v. United States, 329
F.2d 929, 933 (C.A. 2, 1964), cert. denied 377 U.S 979 (1964)
2 The General Counsel excepted to the Administrative Law Judge's fail-
ure to find that a broad remedial order was warranted We find merit to that
exception and accordingly amend the Order. Respondents and the Party to
the Contract have excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd 188 F.2d 362 (C.A. 3, 1951) We have carefully examined the
record and find no basis for reversing his findings.
7 We find merit in General Counsel's cross-exceptions concerning the Ad-
ministrative Law Judge's failure to find reaffirmation of Charging Party's
majority representation based on authorization cards offered in evidence
and erroneously rejected Because of this reaffirmation and the Administra-
tive Law Judge's finding that the Union did enjoy a continuing presumption
of majority status at the time Respondents unlawfully signed a contract with
Local 918, we do not find that the Respondents' unfair labor practices
"caused Local 193 to lose its majority." On this record it seems clear that it
never did. It also appears that the stipulation concerning Local 918's cards
did not go to their authenticity and that the record lacks evidence on that
point. The record also lacks corroboration of the testimony of Snaider-
otherwise a discredited witness-that those who signed cards for Local 918
came to Snaider on June 26 with a local representative to negotiate a con-
tract
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT refuse to recognize and bargain
collectively with United Syrup and Preserves
Employees Union, Local 193 , Retail , Wholesale
220 NLRB No. 37
SNAIDER SYRUP CORPORATION 239
and Department Store Union, AFL-CIO, con-
cerning rates of pay, wages, hours of employ-
ment , and other terms and conditions of em-
ployment as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT recognize or bargain collectively
with Local 918, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, unless and
until Local 918 is certified by the National La-
bor Relations Board as the exclusive representa-
tive of the employees in the aforesaid bargaining
unit.
WE WILL NOT maintain in effect any collective-
bargaining contract with said Local 918 for the
employees in said unit, provided, however, that
nothing herein shall require that we vary or
abandon any wage or other substantive feature
of our relations with our employees, which they
have established in the performance of said con-
tract, or prejudice the assertion by them of any
rights they may have thereunder.
WE WILL NOT render assistance or contribute
other support to said Local 918 in any attempts
it makes to represent our employees.
WE WILL NOT coercively interrogate our em-
ployees regarding their union activities.
WE WILL NOT give our employees the impres-
sion of surveillance of their union activities.
WE WILL NOT direct our employees to sign
cards for said Local 918.
WE WILL NOT promise wage increases and
other benefits to our employees to discourage or
abandon membership in said Local 193, and to
encourage membership in said Local 918.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them in Section 7
of the National Labor Relations Act.
WE WILL recognize and, upon request, bargain
collectively with said Local 193 as the exclusive
representative of the employees in the appropri-
ate unit set out below with respect to rates of
pay, wages, hours of employment, and other
terms and conditions of employment , and, if an
understanding is reached , embody such agree-
ments in a written, signed contract . The bargain-
ing unit is:
All cooks, helpers, special delivery men, and
routemen employed by us, excluding office
clericals , guards , and all supervisors as de-
fined in Section 2(11) of the said Act.
WE WILL refund to employees in said unit ini-
tiation fees and dues paid by them to said Local
918 as a result of our contract of June 26, 1974,
with said Union.
All our employees are free to become, remain, or
refuse to become or remain members of said Local
193, or any other labor organization.
SNAIDER SYRUP CORPORATION AND TULIP
SYRUP CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Administrative Law Judge: This
is an unfair labor practice case litigated pursuant to the
provisions of Section 10(b) of the National Labor Rela-
tions Act, herein called the Act. 29 U.S.C. 160(b). It was
commenced by a complaint issued on August 30, 1974, by
the General Counsel of the National Labor Relations
Board, herein called the Board, through the Regional Di-
rector of Region 29. That complaint is based on a charge,
first amended charge, and second amended charge filed on
June 28, July 15, and August 22, 1974, respectively, by
United Syrup and Preserves Employees Union, Local 193,
Retail, Wholesale, and Department Store Union, AFL-
CIO, herein called Local 193. Said charges and the com-
plaint name Snaider Syrup Corporation and Tulip Syrup
Corporation as Respondents, and the complaint names Lo-
cal 918 of the Teamsters International, herein called Local
918, as the Party to the Contract.
In substance said complaint alleges that Respondents
violated Section 8(a)(1), (2), (3), and (5), and that such con-
duct affects commerce within the meaning of Section 2(6)
and (7) of the Act. Respondents jointly and Local 918 have
filed separate answers admitting some allegations of the
complaint but denying that any unfair labor practices were
committed.
Pursuant to due notice this case came on to be heard
before me at Brooklyn, New York, on December 9-11,
1974, and February 11-14 and 19, 1975. All parties were
represented at and participated in the hearing, and had full
opportunity to introduce evidence , examine and cross-ex-
amine witnesses , file briefs , and offer oral argument. Mo-
tions at the close of the trial , made to dismiss the case, were
denied. The General Counsel and Respondents' president
argued orally at the close of the case. Briefs have been
submitted by all parties but Respondents.
This case presents the following issues:
1. Whether Local 193 is the exclusive representative of
employees of Respondents so that Respondents must rec-
ognize and bargain with Local 193.
2. Whether Respondents early in 1974 negotiated with
Local 193 in bad faith.
3. Whether Respondents' bargaining with Local 918 was
engaged in at a time when Local 918 did not represent a
majority of employees.
4. Whether Respondents:
a. Coercively interrogated employees concerning their
membership in, activities on behalf of, and sympathy for
Local 193.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Warned and directed its employees not to become or
remain members of, or to assist or support, Local 193.
c. Gave its employees the impression of surveillance of
the meetings and activities of Local 193, and the activities
of its employees conducted for the purpose of collective
bargaining and other mutual aid and protection.
d. Offered and promised its employees benefits and im-
provements in working conditions to induce them to cancel
their membership in, and refrain from assisting or support-
ing, Local 193.
Upon the entire record in this case, and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent Snaider, and its wholly owned subsidiary,
Respondent Tulip, are New York corporations engaged at
Brooklyn , New York , as a single integrated business enter-
prise in the business of manufacturing, selling, and distrib-
uting syrups, fruit syrups, fountain syrups, and related
products. During the year preceding the issuance of the
complaint, Respondents purchased goods and materials
valued in excess of $50,000 directly from and sold directly
to States other than New York. I find that Respondents are
employers within the meaning of Section 2(2), and are en-
gaged in commerce within the meaning of Section 2(6) and
(7), of the Act, and that it will effectuate the purposes of
the Act to assert jurisdiction over Respondents in this pro-
ceeding.
11. THE LABOR ORGANIZATIONS INVOLVED
Local 193 and Local 918 each are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. General Counsel's Case
Irving Jerry Fischer, business manager of Local 193,
gave testimony substantially as follows for the General
Counsel. Said Local had a contractual relationship with
Respondents until April 1972 , as the latter were members
of Empire Association. However, on April 12, 1972, Snaid-
er and Local 193 executed a separate collective-bargaining
contract expiring on April 30, 1974. (See G.C. Exh. 5.) And
on January 30, said General Counsel's Exhibit 5 was sup-
plemented by a written agreement between the parties pro-
viding for arbitration of disputes arising under said Gener-
al Counsel's Exhibit 5. (See G.C. Exh. 8.)
By letter dated February 25, 1974, Respondent Snaider
wrote to Local 193 that Snaider did not wish to renew the
contract (G.C. Exh. 5) with Local 193 which expired on
April 30, 1974, and also informed said Local 193, "We
have not authorized anyone but the undersigned [Joe
Snaider] to negotiate for our corporation." (See G.C. Exh.
9.) Thereafter Fischer spoke to Respondents' president, Joe
Snaider , and Joe 's sons , Robert and Aaron, and also met
once with Joe Snaider and once with Robert and Aaron
together.
Also Fischer made many telephone calls to Joe Snaider
"for the purpose of bargaining between" Local 193 and
Respondents for a contract. Once Joe scheduled such a
meeting for April 24 with Fischer over the telephone for
the purpose of negotiating a contract . Although Fischer
went to the meeting place agreed on , "a restaurant on De-
Lancey Street , Joe never showed up ." So Fischer called up
Respondents' plant and spoke to Robert Snaider . Robert
admitted he knew about such appointment by Joe and re-
plied that Joe had left saying Joe was on his way to meet
Fischer . However , Fischer did not meet with Joe Snaider
until June 17, 1974.
About mid or late May 1974, Fischer met with Joe's
sons , Robert and Aaron, pursuant to a meeting set up by
Joe and Fischer over the phone . The "essence of the con-
versation . . . was definitely on the contract ." Fischer
asked for "a similar contract that was in existence in the
industry ." The Snaiders replied, "we don't think we should
pay what everyone else is paying ," and added they would
"discuss it further with their father ." As the meeting ended,
Fischer asked them if they had any objection to doing busi-
ness with Local 193. They both "emphatically" replied,
"No, we have no objection whatsoever."
Thereafter , Fischer had arranged to and did meet with
Joe Snaider on June 17 , 1974, after being unable to reach
him by telephone "many times ." (On one or two occasions,
however , Fischer did talk to Joe on the telephone, and the
latter promised to meet with the former to discuss a con-
tract .) On this June 17 occasion the two discussed "the
contract agreement ." Joe insisted he "could not give the
minimum wages as stated in the [industry] agreement" be-
cause Joe "could hire people for much less." Joe also
"wanted a three-year agreement under his [Joe's] terms,"
but Fischer said "that is a physical impossibility ." There-
upon Joe mentioned , "I can get a better contract and have
a Union shop agreement . . . with Jack Fector ." Finally,
Joe said , "I have to do what I want to do and I can get a
better deal from Jack Fector ," an official of Local 918.
After June 17 Joe Snaider neither called nor contacted
Fischer, but the latter did telephone Joe Snaider a few
times without being able to reach him . On such calls Rob-
ert Snaider answered the phone and informed Fischer, "I
don't know what my father wants to do . It is up to my
father." When Fischer , on these calls , told Robert that em-
ployees informed Fischer that Fector of Local 918 had
asked such employees to sign cards for Local 918 , Robert
replied , "That is something I can't answer ." And although
Fischer requested Robert to ask Joe Snaider to call Fisch-
er, Joe never responded to such request.
Fischer obtained authorization cards for Local 193 on
June 20, 1974, from employees McKinney, Davis, Jr.,
Brooks, and Peterson (see rejected G.C. Exh. 11, 12, 13,
and 14) and received in the mail from employee Yates a
card dated June 21 (see rejected G.C. Exh. 15). It was so
stipulated. He also obtained signed cards in 1973 from em-
ployees Ramos and Nunez (see rejected G.C. Exh. 16 and
17) and testified that these two "are still members of our
Union." It was stipulated . In addition , employees Alfieri
SNAIDER SYRUP CORPORATION 241
and Siracusa were members of Local 193 in June 1974, but
Siracusa left Respondent Snaider's employ on June 25 or
26, although Alfieri is still an employee.
Early in 1973, Fischer spoke to Joe Snaider about certain
bargainable matters . Among other things they agreed that
their contract (G.C. Exh. 5) covered a unit composed of all
production workers , all inside helpers , all route men, all
general and special delivery men, all shipping clerks, and
"anyone in the plant . . . who would be actually taking
merchandise from the plant to be delivered to the custom-
ers on the outside."
On cross-examination Fischer asserted that he first
spoke to Joe Snaider about renewing the contract expiring
on April 30, 1974 (G.C. Exh . 5), in July or August 1973.
Joseph Snaider , Respondents ' president , was called as a
witness by the General Counsel . A conspectus of his testi-
mony follows . He started negotiations with Local 918 for a
contract "a few days prior" to June 26 , 1974. A contract
was signed on said June 26 . "A couple of days" before
June 26 , Snaider signed a "document ," which he termed a
"contract," when counsel for Local 918 "and the negotia-
tion committee of the employees . . . came down and
made demands upon me , and I [Snaider ] was forced into
signing this contract . . . . As far as I was concerned, I
would prefer to have no union ." He also claimed he was
"forced" to sign a contract with Local 918 . (See G .C. Exh.
19.) Among other things , he denied interrogating employ-
ees about , or warning employees against , having conversa-
tions with Fischer of Local 193.
Snaider asserted that the "proof" that Local 918 present-
ed to him that it represented a majority consists of the fact
that Goldblatt , counsel for Local 918 , "came in with [ten or
eleven] signed cards by [my ] employees . . . and the men
were there , and there were six of them , and they negotiated
a contract . . . and I [Snaider] had no alternative but to
sign this ." He could not remember the name of any of said six
employees. Prior to this Snaider had no negotiations or even
"conversations" with Fector , an officer of Local 918,
"about [such] contract" or about Fector's union repre-
senting Respondents ' employees.
Goldblatt came in with said six employees in the evening
and Snaider negotiated with them . They agreed on the
terms of a contract that same night and Snaider signed a
one- or two -page "document" which Goldblatt had written
in longhand . The employees and Goldblatt also signed it.
Then Snaider was given a xerox copy thereof . But said
written contract is not the "same" as General Counsel's
Exhibit 19, a typewritten collective -bargaining contract be-
tween Respondents and Local 918.
According to Snaider , after he signed the handwritten
document on June 25, of which he was given a xerox or
photostatic copy, he had further negotiations or discus-
sions with Local 918 "about any additional terms and con-
ditions that would go into General Counsel 's Exhibit 19."
He "had to meet" with Goldblatt, counsel for Local 918,
"to finalize" said handwritten document at its offices. They
so met on June 26 and signed a contract . (See G .C. Exh.
19.) Said meeting of June 26 lasted "a couple of hours."
However, someone other than Goldblatt signed the con-
tract (G.C. Exh . 19) for Local 918 . Said General Counsel's
Exhibit 19 contains a provision , it was admitted at the
hearing, requiring membership in Local 918 as a condition
of employment . See, also , section III of said General
Counsel's Exhibit 19 for such provision.
Snaider further testified that he first obtained knowledge
of any organizational activity by Local 918 at his plant on
the evening of June 25 when six employees "walked in" to
see him. This is because no one from Local 918 talked to
him previously in June 1974, about representing Respon-
dents' employees. It was stipulated that Local 918 had
cards from eight of Respondents' employees when General
Counsel's Exhibit 19 was signed on June 26. I find these
eight cards were signed on June 24, 1974 (see G.C. Exh.
21), and that Joe Snaider first saw said cards when Gold-
blatt on June 25 "came in with these cards, and the people
to negotiate a contract," to quote Snaider.
Joe Snaider further testified that in July 1974, Respon-
dents' deducted dues and initiation fees for Local 918 from
the wages of 10 of its employees. Respondents made such
deduction pursuant to a "deduction authorization" signed
by each of said employees. (See G.C. Exh. 22. See also
G.C. Exh. 23 for names of employees.) But said authoriza-
tions are dated June 24 (two cards), August 1 (five cards),
September 6 (one card), August 30 (one card), 1974, and
one card is undated.
Robert Siracusa was called as a witness by the General
Counsel. An adequate summary of his testimony follows.
Although he was served with a subpena he did not volun-
tarily appear. As a result the Federal district court ordered
him to honor the subpena. He worked for Respondent
Snaider from 1969 to the end of June 1974. On June 20,
1974, Fischer of Local 193 spoke to Snaider's employees at
the American Diner. Siracusa learned of this meeting on
June 19 when employees told him they had arranged a
meeting with Fischer. On June 21 Robert Snaider , a son of
Joe, said to Siracusa, "Were you at the union meeting last
night," but the latter denied being there. Then Bob said,
"There was a meeting at the American Diner." When Sira-
cusa denied attending it, Bob asked, "Are you sure?" Sira-
cusa answered, "Yes," and added that he had spoken to
Fischer on the phone.
On or about June 21, 1974, Siracusa had a conversation
with Joe Snaider. The latter asked Siracusa whether Siracu-
sa had been to Fischer's union meeting, mentioned in the
preceding paragraph. Siracusa denied that he attended it.
When counsel for the General Counsel asked Siracusa
whether certain officials of Respondents interrogated him
with several questions which I considered violations of Sec-
tion 8(a)(1) and whether they threatened employees with
reprisals if they espoused Local 193 he always answered, "I
don't remember" or "I don't know."
Between June 20 and the date he left Respondents' em-
ploy in late June 1974, Siracusa received a raise in pay.
Jose DeLa Rosa Ramos testified substantially as follows
as a witness for the General Counsel. He has been em-
ployed by Snaider Syrup since April 1968. He signed a
card for Local 918 in June 1974. (See G.C. Exh. 21.) On
this occasion he first heard of said Local 918. At no time
did representatives of Local 918 talk with Respondents'
employees about what the employees might want in a con-
tract.
Ramos claims he signed General Counsel's Exhibit 26, a
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement in Spanish which he gave to a Board agent, be-
cause he was told he would not receive "his check" if he
did not sign said General Counsel's Exhibit 26. Jose Nunez
was present on this occasion. So was "this slim fellow" who
was the Board interpreter and asked Ramos questions.
Ramos admitted that he personally wrote his initials
wherever they appear on General Counsel's Exhibit 26,
and that he signed said document. But he claims that what
is written in General Counsel's Exhibit 26 "was not true
I don't know which part is true and which is not."
Further, he was unable to recall whether he "at any time
signed a card for Local 193 Mr. Fischer's union," or re-
ceived a $10 raise in pay in July or August 1974, or even
whether Local 918 union dues were deducted from his pay.
However, the record indicates he did sign a card for said
Local 193. (See G.C. Exh. 17, rejected.) He often answered
questions on direct with the phrase, "I don't recall," al-
though said questions related to events occurring in the
summer of 1974.
Ramos claimed that Fischer of Local 193, who was in
the vicinity when Ramos was interviewed by a Board rep-
resentative , offered him money at that time . However,
when Ramos finished his interview with the Board's agent,
he was given a check. But he "did not know whom the
check was from." Ramos also testified that the Board rep-
resentative asked him questions and "would write some-
thing down" when he answered such questions. Then said
representative "read back" to Ramos what the former had
written "after that was all over," and asked Ramos "if it
was the truth." Ramos replied, "Yes," it was the truth.
However, he also at the hearing claimed, "I did not answer
the truth," and lied to him, "Yes, of course." Yet Ramos
contended he was "telling the truth here ," i.e., as a witness
at the hearing of this case.
On cross-examination, Ramos testified that Fischer and
an interpreter were in the office where he, Ramos, went to
be interviewed by a Board representative. But Fischer was
not in the room when Ramos was interviewed by said rep-
resentative. And he repeated that he "invented some things
[and] imagined some things" in answering questions when
interviewed by the Board representative. Further, on cross
he stated that he "thought" the check he received at the
close of said interview was in the amount of $195 or $196
but he "did not recall very well." Said check apparently is
some kind of compensation to Ramos from Local 193 and
Respondent Snaider Syrup Corporation. (See Charging
Party's Exh. l.)
Another witness, Jose Nunez, testified for the General
Counsel. A compendium of his testimony follows. He
worked for Respondents about 6 years. Neither Joe Snaid-
er nor his two sons ever talked to him "about a new
union." However, Nunez, when asked whether he had "a
new union after some time," and whether he "changed
unions," replied, "I changed it [union] by myself." Joe
Snaider at no time told him that he, Nunez, had to sign a
card for Local 918. Sometime in 1974 he met someone
from "this new union," i.e., Local 918, at a time when Nu-
nez "signed the card," but he doesn't recall whether he saw
anyone from "that new union after that time." He also
asserted that he was unable to recall several incidents
which allegedly occurred in 1974, such, for example, as to
whether he was with other fellow employees when they
signed cards for Local 918, or whether he saw Ramos sign
such a card, or whether Ramos ever did sign such a card,
or whether he received a wage increase in July 1974.
Nunez further testified that neither Joe Snaider nor Joe's
sons ever spoke to Nunez "about a new union" or men-
tioned that employees were going to get wage increases.
But he did state that $6 a month is withheld from his pay as
dues for Local 918, and that "after we signed [a card for
Local 918] I receive $10" in increased wages. Nunez first
found out that he was going to obtain this $10 wage in-
crease from "the guy when I sign the card [for Local 918].
These were the delegates from the new union," i.e., Local
918.
Continuing, Nunez stated that Coffey of NLRB, "anoth-
er fellow," and Fischer of Local 193 were in the room with
him while Coffey took a statement from Nunez and Nunez
was asked to sign it. But Nunez had a chance to look at it,
and following this he signed it. He signed because, accord-
ing to him, Fischer informed him that Nunez would "not
get any money from Mr. Fischer" if Nunez failed to sign
and swear to said statement. Fischer also promised Nunez
"$5000, $6000." (Said sworn statement, according to the
interpreter at the hearing, states in Spanish "I have read
this declaration of two pages and I swear that it's the
truth," and is signed by Nunez. See G.C. Exh. 27 for identi-
fication.) But Nunez insisted at the hearing that Coffey
asked Nunez questions, Fischer gave the answers, and the
"other fellow . . . wrote it down in Spanish," but Nunez
"didn't say anything." As to his oral testimony at the trial,
I do not credit Nunez, as I am convinced he was not stat-
ing the facts:
When I asked Nunez if he told the truth when he was
interviewed by the Board agent, he replied, "I don't re-
member." However, Nunez claimed that "Fischer lied"
and that Fischer told him "to say so"; but Nunez also later
asserted at the trial that he, Nunez, did not tell the truth.
Finally, on direct Nunez declared that Fischer gave him a
check for $195 after Nunez gave and signed his statement
to Coffey. See Charging Party's Exhibit 2 for said check.
The affidavit of Nunez is dated October 10, 1974, but said
check for $195 is dated September 10, 1974, and contains a
bank notation "PAID Oct. 7, 1974." f have taken this into
consideration in finding that I should not credit the oral
testimony of Nunez.
On cross-examination, Nunez asserted he signed a card
for Local 918 on June 24, 1974. (See G.C. Exh. 21.) Some
time later Fischer of Local 193 called him about separation
pay and told him to come to Fischer's office to pick up "a
check for accumulated money from Mr. Snaider" in the
sum of $5,000 or $6,000. So Nunez went to Fischer's office
for such check and found Coffey there also. Nunez also
signed a statement in English on this occasion. He first
stated he did not sign a statement in Spanish. But later he
asserted he also signed a statement in Spanish. (See G.C.
Exhibit 27.)
On redirect, Nunez testified that he filled out the card
for Local 918. (See G.C. Exh. 21.) This was the first time he
met anyone from Local 918 and the first time he knew that
Local 918 "was trying to get employees to sign cards." But
he testified that he did not read said card, i.e., General
SNAIDER SYRUP CORPORATION
Counsel 's Exhibit 21 , before signing it. Also on redirect,
Nunez stated that Fischer said to him that Nunez "had to
admit what is in the statement in order to get the check."
But when asked "what statement [Fischer] was talking
about," Nunez replied, "I don't recall." Further, on redi-
rect Nunez insisted he did not recall any of the questions
Coffey asked Nunez or the answers which Fischer always
gave to such questions.
However, after Coffey had "written down" the statement
he allowed Nunez to read it over. Although Nunez was
unable to read said statement , because it was in English, he
never mentioned this to Coffey. Also, Nunez did not know
what was in the statement when he signed it. Some time
later Nunez accompanied employee Ramos to Fischer's of-
fice. Additionally, Nunez on redirect testified that his job
as a driver and routeman for Respondents requires him to
"make out receipts . . . to customers . . . when it's some
credit." Also, he has received mail from Local 193 in Eng-
lish, said mail being sent to him when he was a member of
such Local.
Fischer was recalled on redirect by the General Counsel.
An adequate resume of his said testimony is given here.
About 4 or 5 days after September 10, 1974, he handed
Nunez the check in evidence as Charging Party's Exhibit 2.
It was given to Nunez at the office of Local 193. It was
issued because Respondents held $15 a week "in escrow in
the event of a severance for any reason , then this money
that was accumulated for that individual was given to the
man at severance ." However , as of May 1, 1974, " this plan
was dissolved in lieu of a pension fund that was established
at that time ." It was a "jointly administered . . . severance
plan." The check was made out on September 10, 1974,
and signed by Fischer and David Fox. Since "the plan is
managed by both the union [Local 193] and . . . the em-
ployer," Fox signed as an employer representative adminis-
tering said plan.
Fischer sent a letter to Nunez and to other employees
indicating they had some money due them . Then Nunez
telephoned Fischer "to make an appointment ." During this
call Fischer told Nunez that Fischer had $195 due Nunez
"plus there was $30 additional that the employer had not
forwarded to us as yet, namely for the months of March
and April of 1974." When Nunez asked, in said telephone
talk, "What is the money about," Fischer explained to him
"in detail ." He also told Nunez that the latter was entitled
to $200 a week as a routeman and $165 a week as a special
delivery man. When Nunez mentioned that he was being
paid $ 125 a week , Fischer told him that Nunez was due an
additional $4,000 "or maybe even $5000" in back wages.
In the foregoing telephone conversation Nunez stated
that Local 918 "give us [a] three-year contract . . . about
$25 [increase in wages] in the three years ." Then Nunez
asked, "What about my check?" Fischer replied, "You can
pick up your check . . . if you want to. And only if you
want to , I could have . . . here , two men , one representing
the National Labor Relations Board . . . you can tell him
what happened when you were told-when you partici-
pated with the other union ...." Then Nunez stated that
Joe Snaider said that Snaider did not want Fischer on his
[Snaider's] back any more." So Fischer replied it did no
good to tell him about Snaider but Fischer "could arrange
243
it" for Nunez "to tell the story to someone who can do
some good, I'll make sure that the man is here when you
come [to speak to him]"; but Fischer added, "As far as the
check is concerned, the money is yours. You don't have to
come here . . . I can bring you the check or I'll mail you
the check."
Continuing his testimony, Fischer then arranged to have
Coffey see Nunez and Coffey arranged with Nunez to meet
Nunez at Fischer's office. Then Coffey asked Fischer to be
at Fischer's office when Nunez came because it would oc-
cur after business hours and Coffey wanted to be sure the
office would not be closed. Nunez did show up at the time
agreed upon between Nunez and Coffey. When Nunez ar-
rived Fischer handed him a check (Charging Party's Exh.
2) and was told by Fischer that Respondents "still owes
$30 to the fund. As soon as we get it, we'll certainly for-
ward it to you."
Fischer, after handing the check to Nunez, asked the
latter if Nunez wanted to see the Board's representative
who would soon come there. Nunez replied in the affirma-
tive. Said representative, Coffey, soon arrived and inter-
viewed Nunez alone in another room at the offices of Lo-
cal 193. As Fischer left that room he told Nunez to "tell
nothing but the truth," and Nunez assured him "I under-
stand, I got to tell the truth." When Nunez finished he
went to Fischer and told Fischer that Nunez was coming
back with Ramos. So Coffey stated that on the occasion
when Ramos would be interviewed an interpreter would be
present. But Nunez suggested that he could act as an inter-
preter for Ramos. However, Coffey rejected this offer by
Nunez.
On October 10, 1974, Nunez and Ramos did appear at
the offices of Local 193. When Ramos and Nunez arrived,
Fischer instructed Nunez to tell Ramos "to tell nothing but
the truth." Then Nunez in Spanish conveyed this message
to Ramos. Coffey was present with Monti, the Board's in-
terpreter. Fischer handed Ramos a check dated September
10, 1974 (see Charging Party's Exh. 1) before Ramos spoke
to Coffey and Monti. Then Monti interviewed Ramos in
the presence of Nunez and Coffey, but Fischer was not
present during this time.
Fischer further testified, on cross, that he was not even
present when Coffey questioned Nunez, so that Nunez was
wrong when Nunez testified that Coffey "wrote down what
[Fischer] said" while Coffey was interrogating Nunez.
Crediting Fischer, I find that neither Ramos nor Nunez
was told that they would receive their checks only if they
gave false statements in their affidavits. I have credited
said affidavits as more fully recited below.
B. Charging Party's Evidence
In addition to introducing evidence through some of the
General Counsel's witnesses, Local 193, the Charging Par-
ty, also put on evidence with a witness of its own. Such
evidence is set forth below in this subsection.
Clarence Dale Buckius, a secretary-treasurer of Local
780, United Telephone Answering Service, testified for Lo-
cal 193. An adequate abridgment of his testimony follows.
Local 193 "rents a room" in the office of Local 780, so that
these two unions share offices. In September 1974, Fischer
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Local 193 had members of Local 193 come to the main
office to receive checks from the Separation Fund. One of
those arriving for such a check was Nunez . When Nunez
came Fischer spoke to Nunez at such office and escorted
Nunez to the front desk where Fischer took a check from
"the Separation Account file " and handed Nunez such
check . Fischer told him the check was from the Separation
Fund . At the same time Fischer informed Nunez that Cof-
fey had not yet shown up, so that Nunez did not have to
stay unless he really wanted to. Then Nunez and Fischer
walked out of the office . Soon Coffey came to the office
about 10 or 15 minutes later . Fischer then took Coffey "to
the back."
On cross Buckius stated that Fischer is president of Lo-
cal 780, and that he discussed the instant case with Fischer.
But Buckius holds no position with Local 193.
C. Local 918's Evidence
Joseph Snaider , Respondents' president, was called as a
witness by Local 918 , the Party to the Contract . He testi-
fied as such witness substantially as follows . Although
General Counsel's Exhibit 5, the collective-bargaining con-
tract between Local 193 and Respondent Snaider Syrup
Corporation is dated April 12, 1972 , he did not sign it for
said Respondents until January 30 , 1973. Said contract was
signed simultaneously with another document (G.C. Exh.
8) at Mr . Halfond 's office. Halfond "is an owner of New
York Syrup Corporation, and also was the President of the
Association . And he is the arbitrator on this [other] docu-
ment," i.e., General Counsel 's Exhibit 8. Said General
Counsel's Exhibit 8 was signed on January 30, 1973, and
provides that Bernard Halfond has been selected by Re-
spondents and Local 193 to decide all disputes "under the
aforementioned contract . . . dated April 12th, 1972" and
"any and all labor disputes between the parties herein."
Continuing, Snaider testified that he did not arrange to
meet and did not meet Fischer at Ratner 's Restaurant, or
at Constantine 's Restaurant , and that he never authorized
a meeting between Fischer and Snaider 's two sons . Howev-
er, his said sons told Snaider that they met with Fischer at
a restaurant . When he heard this from them Snaider "blew
his cork . . . telling them they had no right , whatsoever, to
talk for me , since I had written a letter advising Mr. Fisch-
er that nobody but I can do any type of [labor] negotia-
tions . . . and that they had no right to go there above my
head." See General Counsel's Exhibit 9 for the above letter
referred to by Snaider . Further , after April 30, 1974, Local
193 never presented union designation cards to Snaider,
nor did Snaider ever tell Fischer that Snaider could obtain
a better contract from Local 918 or that Snaider could do
business with Fector of Local 918.
In Respondents ' contract with Local 918 (see G. C. Ex-
hibit 19) at page A-2, there is a provision requiring Re-
spondents to make a $45 -a-month contribution per em-
ployee to the Local 918 welfare fund.
On cross Joe Snaider testified that he signed Respon-
dents ' contract with Local 918 on June 26, 1974 , but could
not recall the date when his sons met with Fischer . But, he
added , "that the meeting must have happened after I wrote
this letter" of February 25. (See G . C. Exh . 9 for such
letter .) In said letter he informed Fischer that "we have not
authorized anyone but the undersigned to negotiate for our
corporation." He did this "because I admonished them
that they had no right to go above my head , since they
knew that I was the only one that could negotiate any
labor with respect to the company ." And he insisted that
he had no conversation with Fischer after February 25 and
during March , April , May, and June 1974.
Further , on cross , Snaider asserted that one of his sons is
secretary and the other is a vice president of Snaider Syrup
Corporation , and that they are "active in the business
.... They are in charge of the inside work ." And the
written answer of Respondents admits , by failing to deny,
paragraph 9(b) of the complaint that said sons "are and
have been at all times material herein , agents of Respon-
dents , acting on their behalf."
D. Concluding Findings and Discussion
In arriving at the findings hereinafter set forth, I have
followed certain principles of law. (1) The burden of proof
rests upon the General Counsel to establish the allegations
of his complaint, and this burden remains with him during
the entire trial . A corollary is that no burden rests upon
Respondents to disprove any of the allegations pleaded in
the complaint . (2) In addition , the failure of the Respon-
dents to prove any one or more of their defenses does not
constitute affirmative evidence constituting to the General
Counsel's onus of proving his case . (3) Finally, as hereinaf-
ter recited, I have not credited Respondents ' evidence on
some aspects of the case . But this does not amount to affir-
mative evidence capable of supporting the General
Counsel's obligation to prove his case. Ri-Del Tool Mfg.
Co., Inc., 199 NLRB 969, 973 ( 1972). "The mere disbelief
of testimony establishes nothing ." N.L.R.B . v. Joseph An-
tell, Inc., 358 F .2d 880, 883 (C .A. 1, 1966). See Guinan v.
Famous Players, 167 N.E . 235, 243 (Mass.).
1. As to the 8 (a)(1) and 8 (a)(2) violations
On June 21, 1974, Robert Snaider , an officer of Respon-
dents whom I find to be an agent thereof , asked employee
Robert Siracusa whether Siracusa attended a meeting be-
tween Fischer of Local 193 and Respondents ' employees
held on June 20. When Siracusa denied being there , Snaid-
er stated that such a meeting was held at the American
Diner . Joe Snaider , Respondents ' president , also asked Si-
racusa substantially the same question . I do not credit Joe
that he did not so question Siracusa. Crediting Siracusa, I
find such interrogation unlawful and such statement that a
meeting was held as giving the impression of illegal surveil-
lance of union activity of employees.
At the hearing I refused to accept the General Counsel's
offer of affidavits given to the General Counsel by employ-
ees Jose Ramos and Jose Nunez , although they were re-
ceived to impeach them . However, I did state that I would
treat such affidavits as affirmative evidence on behalf of
the General Counsel if the attorney for the General Coun-
sel cited authorities in the brief warranting such consider-
ation of said affidavits . I have been referred to Wigmore in
such brief. On the basis of J. Wigmore On Evidence (Chad-
SNAIDER SYRUP CORPORATION
bourn ed .), volume IIIa , section 1018 , and relevant cases
there cited by Wigmore , I am of the opinion , and rule, that
I may regard said affidavits as affirmative evidence, not-
withstanding they were contradicted at the hearing, if I
deem the affidavits worthy of belief . I find that such affida-
vits are entitled to be believed and, accordingly , I shall be
guided by them and shall disregard the oral testimony of
said two witnesses to the extent it is inconsistent with said
affidavits.
The affidavit of Ramos , which I credit because I credit
Fischer that no conditions were attached to Ramos' receiv-
ing the latter's check (see Loc . 193 Exh . 1) and do not
credit Ramos that said affidavit (G. C. Exh. 26) "was not
true," discloses the following : he signed a card for Local
193 on May 31, 1973. Sometime in June 1974, Joe Snaider
told him that "we were going to have a new union ." About
2 weeks later Snaider informed employees that Local 918
"was outside and then all the employees went outside. Nu-
nez . . . on this occasion" told Ramos "to go outside to
sign a card for the new union ." Men from Local 918 "were
saying that I [Ramos] had to sign the card to belong to the
new union . The men gave [Ramos] a card . . . . The boss,
Joe Snaider , was outside the factory on this occasion about
30 feet away from me [ Ramos]."
Two weeks following the above occasion Local 918 "del-
egates were talking with the employees inside the factory
outside the boss' office . The workers told the union men
that they wanted raises ." So the Local 918 delegates spoke
to Joe Snaider and soon thereafter informed the workers
that Snaider had agreed to give $10 "more in raises a year."
And then Joe Snaider "came out of his office and told us
[the same thing]."
The sworn statements in the affidavit of Ramos which I
have credited convince me, and I find , that Respondents
gave assistance to Local 918 , and offered and promised
benefits to its employees to discourage and abandon mem-
bership in Local 193, contrary to the provisions of Section
8(a)(1) and (2) of the Act.
On the basis of the affidavit of Jose Nunez (see G.C.
Exh. 27), which I credit, I find as follows . (In this connec-
tion I do not credit Nunez that he signed said affidavit
only because Fischer insisted that he , Fischer , would with-
hold the check of Nunez (see Loc. 193 Exh. 2) if Nunez
failed to subscribe such affidavit.) On June 25, 1974, Nu-
nez observed Respondents' president, Joe Snaider , speak-
ing to two representatives of Local 918 outside Respon-
dents ' plant . Snaider soon told Nunez, " I have a good new
union . I want Jerry Fischer off my back . You have to sign
a card to belong to this union . There are two delegates
from the new union ." Thereupon, said delegates gave Nu-
nez a card which he signed . Then Joe Snaider instructed
Nunez to get hold of employee Ramos.
When Nunez went through the plant seeking Ramos, the
former was followed by Joe Snaider who repeated to Nu-
nez, "I want Jerry Fischer off my back ." Soon Nunez
found Ramos and informed the latter to "go outside to sign
for the new union ." Ramos did go out and signed a card
for Local 918 . Later that day Nunez asked the representa-
tives of Local 918, "And our salary?" They replied, "Don't
worry, we'll take care of that."
Two weeks later the "delegates" of Local 918 spoke to
245
all Respondents ' employees in the factory outside Joe
Snaider's office . After learning from the employees that
they wanted raises , said delegates entered Snaider 's office.
Soon they came out and said to the employees that Snaider
agreed to give such employees "only a $10 raise a year."
Shortly after this Snaider himself came out of his office
and, in the presence of said delegates, told the employees
that he had agreed to give the employees "a raise of $10."
It is my opinion, and I find, that Joe Snaider's conduct
as described by Nunez in the latter's affidavit amounts to
both assistance to Local 918 and a promise of benefits to
discourage membership in Local 193. And I further find
that such conduct contravenes Section 8(a)(1) and (2) of
the Act.
2. As to the 8(a)(3) violations
It is admitted that Respondents and Local 918 entered
into a collective-bargaining agreement on or about June
26, 1974, and that said agreement contains a union-security
provision requiring membership in said union as a condi-
tion of employment in a unit described in paragraph 12 of
the complaint. Since I have found elsewhere herein that
Respondents are under an obligation to recognize and bar-
gain with Local 193, I find that said contract with Local
918 and said union-security clause therein constitute assis-
tance to Local 918 which violates Section 8(a)(2) and (1) of
the Act, and that said contract and its provisions unlawful-
ly encourage membership in Local 918 so that Section
8(a)(3) and (1) of the Act is thereby infringed.
3. As to the 8(a)(5) violations
Initially, I find the following to be an appropriate unit
for the purpose of collective bargaining:
All cooks, helpers, special delivery men, and routemen
employed by Respondents, excluding office clericals,
guards, and all supervisors as defined in Section 2(11)
of the Act.
And I find that Respondents and Local 193 have been
parties to and have maintained in effect a collective-bar-
gaining contract effective April 12, 1972, and expiring
April 30, 1974, concerning rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment of the employees in the appropriate unit described
above. (See G.C. Exh. 5.)
Crediting Fischer, and not crediting Respondents' evi-
dence inconsistent therewith, I further find as follows. Af-
ter receiving Joe Snaider's letter of February 25, 1974 (see
G. C. Exh. 9) stating that the contract expiring on April 30,
1974, would not be renewed, Fischer made many telephone
calls to Snaider for the purpose of negotiating a new con-
tract. Although Snaider made an appointment to meet
Fischer on April 24, Snaider failed to keep it.
About late or mid-May 1974, Fischer met with Joe
Snaider's sons, Robert and Aaron, pursuant to a meeting
set up mutually by Joe and Fischer over the phone. Said
sons and Fischer discussed the terms of a renewal contract.
I find that Joe, by arranging such a meeting, thereby not
only authorized his sons, who were officers of Respon-
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dents, to act for Respondent, but also in effect canceled
Joe's letter to Fischer of February 25, 1974 (see G. C. Exh.
9), in which Joe stated that only he, Joe, was "authorized
... to negotiate for our corporation," i.e., Snaider Syrup
Corporation. Although Joe Snaider testified that his sons
acted without his permission in negotiating with Fischer
and he, Joe, blew his top when he learned his sons had so
acted, I do not credit Joe. In arriving at this credibility
finding I have taken into consideration the fact that at no
time did Joe inform Fischer that Joe's sons lacked permis-
sion or authority to act for Respondents after Joe learned
that they discussed a contract with Fischer.
Thereafter, on June 17, 1974, Fischer met with Joe
Snaider and discussed a collective-bargaining contract. I
do not credit Snaider that such meeting did not take place.
And I further find that, on this occasion Joe stated that he
could obtain a better contract from Local 918.
At no time during Fischer's meeting with Joe.Snaider or
Joe's two sons did any one of them question the majority
of Local 193. Said majority was in existence when Local
193 and Respondents signed their collective-bargaining
contract dated April 12, 1972. (See G. C. Exh. 5.) "The
existence of a prior contract, lawful on its face, is sufficient
to raise a dual presumption of majority, first that [Local
193] had majority status when the contract was executed
and second that the majority continued at least through the
life of the contract. Following the expiration of the con-
tract, the presumption continues, and the burden of rebut-
ting it rests, of course, on the party who would do so."
Eastern Washington Distributing Company, Inc., 216 NLRB
No. 186 (1975).
The question then is whether Respondents have rebutted
the foregoing presumption that Local 193 represented a
majority of the employees in the unit in question. "It [is]
incumbent upon the Respondent, in defending its refusal
to bargain with [Local 193], to demonstrate either that [Lo-
cal.193] did not in fact enjoy majority support at the time
of the refusal to bargain, or that it had reasonable doubts
based on objective considerations for believing [Local 193]
had lost its majority status when it refused to bargain."
Eastern Washington Distributing Company, Inc., 216 NLRB
No. 186. Such presumption continues "following the expi-
ration of the contract." Id. Moreover, "before refusing to
bargain, it was incumbent upon the Respondent to rebut
that presumption either by showing (1) that at the time of
the refusal [Local 193] no longer enjoyed majority'repre-
sentative status, or (2) that its refusal was predicated on a
good-faith and reasonably grounded doubt of [Local 193's]
continued majority status." Id.
However, the assertion of doubt must be raised "in a
context free of unfair labor practices .." Nu-Southern
Dyeing & Finishing, Inc., 179 NLRB 73, fn. 1 (1969), en-
forcement denied in part 444 F.2d 11 (C.A. 4, 1971). And
the loss !of majority must not have resulted from the
employer's unfair labor practices. "An employer may not
avoid the duty to bargain by demonstrating a loss of ma-
jority arising from its "own unfair labor practices."• N. L.R. B.
v. Little Rock Downtowner, .Inc., 414 F.2d 1084, 1091, fn. 4
(C.A. 8, 1969). Accord: Bartenders; Holel, Motel and Res-
taurant Employers Bargaining Association of Pocatello, 213
NLRB No. 74 (1974). ,- .
Upon an analysis of the entire record I am persuaded,
and find, that certain unfair labor practices of Respon-
dents not only caused Local 193 to lose its majority but
also lead me to find that Respondents lacked a good-faith
doubt of the majority of Local 193. These unfair labor
practices, recited elsewhere herein, are restated briefly at
this point.
(a) Robert Snaider, an officer of Respondents, unlaw-
fully interrogated employee Siracusa whether the latter at-
tended a meeting held by Local 193 for Respondents' em-
ployees and also, in the same conversation, gave the
impression of surveillance of employee union activity by
telling Siracusa that such a meeting occurred.
(b) Joe Snaider in June 1974 told employee Ramos that
"we were going to have a new union."
(c) In June 1974, Joe Snaider told employees to go "out-
side" where representatives of Local 918 were waiting, and
also, on this occasion told employee Ramos that Ramos
had to sign a card to belong to said union.
(d) In late June 1974, Joe Snaider informed Respon-
dents' employees that he had agreed with Local 918 to give
them raises of $10 a year, but this occurred only after such
employees told Local 918 they wanted raises and said local
immediately thereafter reported such desires to Joe Snaid-
er.
(e) On June 25, 1974, Joe Snaider told employee Nunez,
"I have a good new union [i.e., Local 918]. I want Jerry
Fischer [of Local 193] off my back. You have to sign a card
to belong to this new union. There are two delegates from
the new union." Said delegates soon gave Nunez a card
which he signed for Local 918.
(f) On June 25, 1974, Joe Snaider repeated to Nunez, "`I
want Jerry Fischer off my back." Snaider also told Nunez
to get hold of employee Ramos. Nunez did so and directed
Ramos to "go outside to sign for the new union." So Ra-
mos did go outside and signed such a card for Local 918.
(g) Joe Snaider failed to fulfill Respondents' obligation
to continue to meet with Local 193 to negotiate another
contract when, their contract expired on April 30, 1974.
This constitutes a violation of Section 8(a)(5) because the
majority of Local 193, which was'presumed to continue
until affirmative. evidence to overcome such presumption
was introduced, has not been shown to have been lost prior
to the date when Respondents entered into a contract with
Local 918 on June 26, 1974. Since Respondents did not
negotiate with Local 193 in good faith during such period,
Respondents may not now seek to have its conduct upheld
in signing a contract with Local 918 following Respon-
dents' failure to meet with Local 193 at a time when the
majority of Local 193 was presumed to continue.
- In my, opinion Eastern Washington Distributing Compa-
ny, Inc., 216 NLRB No. 186, supports the above. conclu-
sion . But •I consider Alex Edelman, et. al., d/b/a, Wavecrest
-Home'for'Adults, 217 NLRB No. 47 (1975), to be distin-
guishable. and, therefore, am of the opinion it does not
compel a contrary result in the instant case. Moreover, the
test as to whether Respondents in good faith believed Lo-
cal 193 lost its majority between April 30 and June 25,
11974, is that facts demonstrating a loss of majority must be
"known to an employer before it- withdraws recognition
and not thereafter." Bartenders Bargaining Association of
SNAIDER SYRUP CORPORATION
Pocatello, 213 NLRB No. 74. The record herein does not
disclose a loss of majority by Local 193 during such period.
Hence Respondents were not legally excused from recog-
nizing and bargaining with Local 193 after their contract
expired on April 30, 1974, and could not lawfully enter into
a contract with Local 918. This is because an employer
may not withdraw recognition during negotiations for a
new contract when he caused the established bargaining
representative, i.e., Local 193, with which he is negotiating
to lose its majority or when he unlawfully aided or assisted
a rival union , i.e., Local 918, or both. Bartenders Bargaining
Association of Pocatello, 213 NLRB No. 74.
4. As to the appropriate remedy
Since it has been found that Respondents did not bar-
gain in good faith with Local 193 when said Union's con-
tract expired, although said Union's majority presumptive-
ly continued, and since Respondents unlawfully aided and
assisted Local 918 during the period when Respondents
were under a legal obligation to negotiate and bargain with
Local 193, 1 find that, among other things, the following
action is necessary to correct such conduct by Respon-
dents:
(a) Respondents should be ordered by the Board to (1)
withdraw recognition from Local 918, (2) cancel the collec-
tive-bargaining contract entered into by Respondents with
said Local 918, and (3) refund to employees dues and initi-
ation fees paid by them to said Local 918 to the extent such
payments were required to be made by such contract.
(b) Respondents should be required to bargain collec-
tively in good faith with Local 193 upon request by said
Union and, if an understanding is reached, embody the
terms of such agreement in a written signed collective-bar-
gaining contract.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, found to constitute unfair labor practices, occurring
in connection with their operations described in section I,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As Respondents have been found to have engaged in
unfair labor practices, I shall recommend that they be or-
dered to cease and desist therefrom and that they take spe-
cific action, as set forth below in the recommended Order,
designed to effectuate the policies of the Act. The conduct
of Respondents does not reflect a general disregard or hos-
tility of the Act, and I so find. Accordingly, I find that a
broad remedial order against Respondents is not warrant-
ed. Rather, I find that it will accomplish the policies of the
Act to enjoin Respondents from repeating the transgres-
sions found above to constitute unfair labor practices and
similar or like conduct.
247
Upon the foregoing findings of fact and the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. Local 193 and Local 918 each are labor organizations
within the meaning of Section 2(5) of the Act.
2. Respondents are affiliated businesses with common
officers, ownership, directors, and operators; constitute a
single integrated business enterprise; are employers within
the meaning of Section 2(2); and are engaged in commerce
as defined in Section 2(6) and (7) of the Act.
3. Prior to and since April 12, 1972, Local 193 has been,
and now is, the exclusive bargaining representative of all
the employees in the unit described below, and Respon-
dents are now, and have been at all times material herein,
legally obligated to recognize and bargain collectively with
Local 193 as such representative.
4. An appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
comprises all cooks, helpers, special deliverymen, and
routemen employed by Respondents, excluding office cler-
cials, guards, and all supervisors as defined in Section 2(11)
of the Act.
5. By recognizing and bargaining with Local 918 since
on or about June 26, 1974, concerning rates, of pay, wages,
hours, and other terms and conditions of employment, and
by refusing to recognize and bargain with Local 193 since
said June 26, as the exclusive bargaining representative for
the employees in said appropriate unit, Respondents have
engaged in unfair labor practices condemned by Section
8(a)(5) and (1) of the Act.
6. Respondents have engaged in unfair labor practices
condemned by Section 8(a)(2) and (1) of the Act by:
(a) Executing and maintaining in effect since June 26,
1974, a contract with Local 918 for the employees in said
unit.
(b) Having a provision in said contract with Local 918
requiring membership in Local 918 as a condition of em-
ployment.
(c) Unlawfully rendering assistance to Local 918 which
aided said Union in obtaining recognition from Respon-
dents for the employees in said unit.
7. At all times material herein, Local 193 has repre-
sented a majority of the employees in the aforesaid unit
and has been, and is now, the exclusive bargaining repre-
sentative of all the employees in such unit, and Respon-
dents are now, and have been at all times material herein,
legally obligated to recognize and collectively bargain with
said Local 193 as such representative.
8. Respondents have negotiated in bad faith with Local
193 from March 1974, to June 25, 1974, contrary to the
provisions of Section 8(a)(5) and (1) of the Act.
9. Respondents have committed unfair labor practices
prohibited by Section 8(a)(1) of the Act by:
(a) Unlawfully interrogating employees regarding their
union activities.
(b) Giving employees the impression of illegal surveil-
lance of employee union activity.
(c) Directing employees to sign cards for Local 918.
(d) Promising wage increases and other benefits to em-
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees to discourage or abandon membership in Local
193, and to encourage membership in Local 918.
10. Respondents unlawfully encouraged membership in
Local 918 by entering into the above-mentioned contract,
containing a union-security clause, with Local 918, con-
trary to the provisions of Section 8(a)(3) and (1) of the Act.
11. The unfair labor practices recounted above affect
commerce within the contemplation of Section 2(6) and (7)
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER1
Respondents, Snaider Syrup Corporation and Tulip Cor-
poration, Brooklyn, New York, their officers, agents, suc-
cessors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Local 193 as the exclusive bargaining representative of all
the employees in the above-described appropriate bargain-
ing unit.
(b) Recognizing and bargaining with Local 918 as the
exclusive bargaining representative of all the employees in
the aforesaid bargaining unit.
(c) Maintaining in effect any collective-bargaining con-
tract with Local 918 for the employees in said unit.
(d) Rendering assistance or contributing other support
to Local 918 in any attempts it makes to represent Respon-
dents' employees.
(e) Coercively interrogating employees regarding their
union activities.
(f) Giving employees the impression of surveillance of
their union activities.
1 In the event no exceptions are filed as provided by Sec. 102 46 of the
Board 's Rules and Regulations , the findings , conclusions , and recommend-
ed Order herein shall, as provided in Sec 102.48 of said Rules and Regula-
tions, be adopted by the Board and become its findings , conclusions, and
Order, and all objections thereto shall be deemed waived for all purposes.
(g) Directing employees to sign cards for Local 918.
(h) Promising wage increases and other benefits to em-
ployees to discourage or abandon membership in Local
193, and to encourage membership in Local 918.
(i) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with Local 193 as the exclusive representative of the em-
ployees found herein to constitute an appropriate unit,
and, if an understanding is reached, embody such agree-
ment in a written signed contract.
(b) Cancel its collective-bargaining contract with Local
918 until said Local 918 shall become the majority repre-
sentative of employees covered by said contract in a man-
ner and by methods sanctioned by the Act.
(c) Reimburse each employee with the amount each
paid Local 918 in dues and initiation fees to the extent that
such payments were required to be made pursuant to the
collective-bargaining contract between Respondents and
Local 918.
(d) Post at their place of business at Brooklyn, New
York, copies of the notice marked "Appendix." 2 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being signed by a duly authorized rep-
resentative of Respondents, shall be posted by them imme-
diately upon receipt thereof, and be maintained by them
for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are cus-
tomarily displayed. Reasonable steps shall be taken by Re-
spondents to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondents have taken to comply herewith.
2 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."