Vanderbilt Products, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1961

129 N.L.R.B. 1323 (N.L.R.B. 1961)

VANDERBILT PRODUCTS, INC. 1323
organizations , to join or assist Automobile Mechanics Lodge No. 701, Inter-
national Association of Machinists , AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activity for the purpose of collective bargaining or mutual
aid or protection , and to refrain from any or all such activities , except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment , as authorized in Sec-
tion 8 (a) (3) of the National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
KICKERT BROTHERS FORD, INC.,
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.
Vanderbilt Products, Inc. and Plastic, Moulders & Novelty
Workers' Union , Local 132, International Ladies Garment
Workers Union , AFL-CIO.' Case No. 2-CA-7291. January 13,
1961
DECISION AND ORDER
On July 22, 1960, Trial Examiner Thomas A. Ricci issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, but that the Respondent had not en-
gaged in and was not engaging in certain other unfair labor practices,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Fanning and Kimball].
The Board has reveiwed 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 and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Vanderbilt
Products, Inc., New York, New York, its officers, agents, successors,
and assigns, shall :
i Herein referred to as the Union.
129 NLRB No. 164.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Refusing to bargain with the Union as the collective-bargaining
representative of the employees in the following appropriate unit:
All production and maintenance employees and truckdrivers em-
ployed at its plant in Brooklyn, New York, excluding office clerical
employees, guards, watchmen, and all supervisors as defined in the
Act.
(b) In any like or related manner interfering with, restraining, or
coercing 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, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, 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) Upon request, bargain collectively with the Union as the ex-
clusive representative of all the employees in the appropriate unit,
and embody any understanding reached in a signed agreement.
(b) Post at its plant in Brooklyn, New York, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Decision and Order, what steps
Respondent has taken to comply herewith.
2In 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 "
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, we hereby notify our employees that :
VANDERBILT PRODUCTS , INC. 1325
WE WILL, upon request, bargain collectively with Plastic,
Moulders & Novelty Workers' Union, Local 132, International
Ladies Garment Workers Union, AFL-CIO, as the exclusive bar-
gaining representative of all employees in the following bargain-
ing unit with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if an under-
standing is reached, embody such an understanding in a signed
agreement. The bargaining unit is:
All production and maintenance employees and truckdrivers
employed at our plant in Brooklyn, New York, excluding office
clerical employees, guards, watchmen, and all supervisors as
defined in the Act.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the National Labor Relations Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
VANDERBILT PRODUCTS, INC.,
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly designated
Trial Examiner in New York , New York , on June 20 , 1960 , on complaint of the
General Counsel and answer by Vanderbilt Products , Inc., herein called the Company
or the Respondent . The sole issue litigated was whether the Respondent had
violated Section 8 (a) (5) and ( 1) of the Act.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the Respondent admits, and I find that Vanderbilt Products,
Inc., is a New York corporation maintaining its principal place of business in
Brooklyn , New York, where it is and has been continuously engaged in the manu-
facture, sale , and distribution of housewares, hardware, and related products. In
the course of its business during the past year the Respondent has caused to be
manufactured, sold, and distributed from its place of business products valued in
excess of $500,000, of which products valued in excess of $50,000 were shipped by
it directly to States of the United States other than the State of New York. I find
that the Respondent is engaged in commerce within the meaning of the Act, and that
it will effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
The parties stipulated and I find that Plastic Moulders & Novelty Workers' Union,
Local 132, International Ladies Garment Workers Union , AFL-CIO , herein called
the Union, is a labor organization within the meaning of Section 2 (5) of the Act.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The principal allegation of the complaint against the Respondent is that it refused
tobargain with the Union in good faith following its selection by a majority of the
employees in a Board -conducted election. While issues of this type, arising under
Section 8 ( a) (5) of the statute , raise questions of law in terms of precise delineation
of the statutory duty to bargain, they often present a mixed question of both law
and fact. Here, as revealed by the pleadings and the evidence , the question appears
more as one of fact than of law. Essentially, the witnesses presented by the General
Counsel testified directly that the Respondent's sole negotiator, Mr. Goldman, simply
refused to discuss any economic subjects with the union spokesmen , and therefore,
in a literal sense, refused to bargain with the Union. The sworn testimony of Mr.
Goldman, given at the hearing, was intended to rebut the substance of the testimony
of the union representatives . The record as a whole, fairly considered , indicates the
possibility of a misconception,by Goldman of precisely what the duty of an employer
is in recognizing and dealing with a certified representative of its employees.
A significant aspect of this case is that the Respondent at no time questioned the
Union's majority status, and raised no issue at the hearing of its duty even now to
continue to recognize and deal with .the Union as the bargaining agent. Indeed, Mr.
Goldman , appearing as the Respondent 's attorney at the trial , expressed a willingness
to resume and continue bargaining at any time, upon request, which is essentially all
the General Counsel seeks as remedial action.
The complaint alleges, the answer admits, and I find that:
All production and maintenance employees and truckdrivers of Vanderbilt
Products , Inc., exclusive of office clerical employees , guards, watchmen, and
all supervisors as defined in Section 11 of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
These employees voted in a secret Board election on January 27, 1960, where a
majority of them selected the Union as their bargaining representative, and on
February 5, 1960, the Regional Director issued a certification in favor of the Union.
Accordingly, I also find that from February 5, 1960, and thereafter the Union has
been and is the exclusive representative of all the employees in the bargaining unit
pursuant to Section 9(a) of the Act.
The following facts are also undisputed on the record. Menist, managing secre-
tary of the Union, telephoned the company office on January 28, the day after the
election . Robbins, president of the Respondent , told him to communicate with a
lawyer, Mr. Goldman, and that Goldman would take care of all matters relating to
collective bargaining on behalf of the Company . After several calls a meeting was
arranged for February 4. That morning, Menist, accompanied by Adams, a business
representative of the Union, appeared at the attorney's office; with them were three
employees-Torres, Garcia, and Font-constituting an employee committee. The
union representatives expressed surprise that no direct representative of management
was present . Goldman explained he would do the negotiating on behalf of the
Company.
Menist then handed Goldman -a one-page statement setting out five economic
demands: (1) a 20-cent hourly across-the-board wage increase; (2) 6-percent payroll
contribution to the Union 's health, welfare , and retirement fund; (3) a vacation
program; (4) 71/2 paid holidays; and (5) $1.25 minimum hourly wage.
In the discussion which ensued, Menist explained to Goldman the various written
economic demands. He also gave Goldman a form copy of a collective-bargaining
agreement , called the Union 's "independent" contract , typical of the bargaining
agreement which Local 132 usually makes with employers in this industry who are
not members of any employer association.
Goldman told the union representatives he knew nothing about the Respondent's
business , or its position concerning any issues which might arise during negotiations;
he explained he had never met Robbins, the company president, who had retained
him by telephone only a few days before. He therefore added he would be able to
do nothing until he had conferred with the Company and ended by saying he would
communicate with Menist and arrange another conference.
The Union did not hear from Goldman for several days, and Menist called Gold-
man again several times. They finally agreed to meet again on February 15. Menist
arranged to have Adams accompany him to the lawyer's office. On the 15th Menist
arrived by arrangement about 10 o'clock; Adams had not yet come. The conversa-
tion between Menist and Goldman lasted only about 15 minutes . Menist expressed
disappointment at the absence of any company representatives , but Goldman assured
VANDERBILT PRODUCTS, INC . 1327
him he was authorized to act for the Company. Goldman started the conference with
saying there were two demands the Company wanted met: "an open shop" and "the
right to hire or fire without any resort to arbitration whatsoever." As to how the
conversation then continued their testimony differs. According to Menist he replied
he could not sign any agreement until money matters had been discussed-"What
about the finances?"-and that Goldman responded "he is not at liberty to discuss
anything concerning monetary matters until such time as I [Menist] would give him
an answer on the demands that the firm has." Menist pressed for discussion of
"demands that involved money" but Goldman repeated he could not talk about them:
"The only thing that we are here to discuss is the question of the right to hire and fire
without resort to any arbitration." The meeting ended with Goldman saying he
would confer with his client.
Goldman gave a different version of his short talk with Menist. He conceded he
started by demanding an open shop. He continued to testify that the union agent
then asked where would a union "stand" without union security, and "within a
moment or two got up and said, `there is no use talking about anything else,' and he
walked out of the room. We shook hands cordially. .
Adams arrived late, a few minutes after Menist had left. He asked what had
happened, and, as he testified, Goldman told him of the two demands he had made
upon Menist and Menist's refusal to concede them. Adams also said the lawyer
closed this brief conversation with: "Since Mr. Menist refused to go any further, I
refused to discuss anything else, too." Again Goldman's version is a little different.
He said he brought Adams current, and that Adams said an open shop was not fair.
Goldman also testified: "Mr. Adams wanted to continue the subject further, I told him
so long as Mr Menist had left, that I thought it best that he take it up with Mr. Menist
and contact me again."
Following the February 15 meeting with Goldman, Menist turned the entire matter
of continuing the negotiations with this Company to his subordinate, Adams, who
met again with Goldman in the lawyer's office on February 23. They talked for
almost an hour; Adams' recital of this meeting is as follows: He suggested starting
all over again and withdrew an earlier union demand that the Company prove its
good faith by depositing 2 weeks' .pay in escrow. Goldman's response was again to
ask "What about the open shop and the right to discharge." Adams suggested de-
ferring these two matters for later, and meanwhile discussing "money," such as
wages, vacations, and holidays, and that Goldman answered "No. I can't discuss
anything whatsoever unless this first point is passed upon and agreed to the way I
want it." Adams then tried to deflect Goldman into other issues by proposing that in
four situations-theft, drunkenness, direct insubordination, and willful damage-the
Company's right to discharge should be absolute, and only in other circumstances
the Union to have a right of protest. Goldman agreed to report this suggestion back
to his client, but continued to insist this matter must first be resolved before economic
matters could be discussed.
Adams conceded that in the course of his efforts to persuade Goldman to talk
about the economic items which the Union had placed in his hands in writing at the
first meeting, he said if Goldman made some kind of money offer, they could then
return to the company demands and he would then make some concession on them.
Consistently, however, his testimony was that Goldman in every instance replied
only that no such matters could even be considered until the Union agreed to the
Company's terms.
The substance of Goldman's story as to this last meeting is not a contradiction of
Adams' testimony. He testified only that Adams offered to waive union security in
return for money and that he told Adams "I had never gotten to the point of dis-
cussisig with my man the question of money, but now that he raised that issue, I will
go down and see my client." He added, "Mr. Adams left me with the feeling . . .
that I would call him and let him know about money. . . .
Both Adams and Goldman agreed that the union representative voiced the
urgency of arriving at something concrete because the employees were chafing.
Although the February 23 meeting ended inconclusively, it not being clear be-
tween the two men as to who would call whom next, Adams said he telephoned
Goldman's office several times in an effort to resume discussions. He was un-
successful. The first time, Goldman reiterated, according to Adams, his insistence
upon an open shop before discussing union demands. In a second telephone con-
versation, Adams asked that Goldman reduce his precise demands to writing, and
the lawyer asked that Adams call again later: "He would have something for me "
Finally, in a third attempt, Adams reached Goldman's secretary who read, over the
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone , a precise message to Adams which Goldman had prepared for this pur-
pose. It reads as follows:
This is to confirm that we have agreed upon the following contract provisions:
1. Contract to provide for an open shop; employees not to be required to
join Union.
2. No maintenance of membership or checkoff to be required.
3. Employer to have right to discharge or lay off without restriction or
seniority limitation.
4. Contract term to be 5 years.
All other contract terms, not resolved by further negotiation , to be sub-
mitted to single arbitrator (not connected with Federal or State labor depart-
ments) to be selected by consent of both parties.'
Adams finally testified to a last conversation with Goldman, also on the telephone,
on about March 15 or 16, the last time the two spoke to one another. He asked
Goldman to put the five demands in writing, and Goldman refused, by say-
ing ". . . that's against my principles . I don't put things like that in writing "
As a last attempt, Adams asked "What about the other points?" and Goldman said
"unless I get this in writing, unless I get you to agree to this first, there can be no
other discussions."
Goldman's recital of his dealings with Adams after February 23, was brief and
reflects more a statement of position and explanation of why he acted as he did
than it purports to recall the words exchanged between them. He admitted that
on the telephone Adams said "the thing can't wait. My men are restless," and that
he answered "If you are in agreement with what I am asking you with regard to
the contract provisions, I will give you a writing, signed between us, that you agree
to these terms, and then, if we can't get together on any questions of money or any
other thing, we will arbitrate it."
Goldman also recalled Adams requested he write down the demands which his
secretary had read over the telephone and he explained he refused to do so on the
ground that he considered he was doing a favor to the Union by his willingness to
sign such a document, and that therefore it behooved the Union to reduce it to
writing on its stationery instead. His final statement on the stand was that Adams
had agreed to those terms. Indeed, the Respondent's affirmative defense to the
entire refusal to bargain complaint is that it bargained fully, that the parties in
fact concluded an agreement, and that the terms read by the secretary on the
telephone represents the contract itself.
Analysis and Conclusion
I believe the conversations that took place between Goldman, for the Respondent,
and Menist and Adams proceeded substantially as related by the two union repre-
sentatives. I base this conclusion in part upon the fact Goldman did not really
deny their testimony that he expressly refused to discuss proper subjects of collective
bargaining, in part upon his indirect admission revealing an attitude that the
Company's demands should first be finally resolved, and in part upon the inherent
probabilities indicated by the nature of the final "contract" which the Respondent
contends was in fact agreed to by the Union.
By the time Adams appeared at the lawyer's office on February 23, Goldman
had already had almost 3 weeks to consider the request of the Union for direct
changes in conditions of employment; he said he had studied them, made notes,
and compared various contracts in the industry, and I believe him. Despite a few
general statements by Robbins, the company president, that Goldman had discussed
developments with him, it appears from Goldman's own testimony that neither he
nor Robbins ever considered what positions to take vis-a-vis the Union on those
demands, for Goldman candidly told Adams on the 23d that he had not yet "gotten
to the point of discussing with my man the question of money," and promised to
do so for the first time then. With this admission that the Company had given
no thought to bargaining about the Union's proposals, it follows that Goldman
deemed the "open shop" and "freedom to discharge" subjects the only matters of
'This proposal was never reduced to writing by the Respondent, and was received into
evidence through the oral testimony of Adams, who read it from a memorandum he made
at the time of the telephone conversation with the secretary The Respondent conceded
its correctness, and its answer sots out the same precise provisions as an agreement
claimed to have been accepted by the Union
VANDERBILT PRODUCTS, INC. 1329
moment in his dealings with the union agents. In this circumstance, the uncontra-
dicted testimony that Goldman told the union agents there would be no discussion
on economic matters until his demands were first yielded must be believed.
That the lawyer's intent was to defer any consideration of the Union's proposals
until its -requirements had first been met is also persuasively revealed by Goldman's
final statement to Adams on the telephone and the final articulated company "con-
tract" itself. In his own words, Goldman said, at the end, ". . . I will give you a
writing . . . and then, if we can't get together on any question of money . we
will arbitrate it." [Emphasis supplied.] His words thus fit precisely into Adams'
testimony of direct refusal to talk about "money" matters before open shop and
right of discharge were disposed of And the "writing" which Goldman pro-
posed expressly reserves in its last provision all other contract terms for "future
negotiations."
There never was any mention in any conversation between the parties of main-
tenance of membership, checkoff, or a 5-year term. These matters appeared for
the first time when Goldman's secretary conveyed the lawyer's proposed "writing"
to Adams on the telephone. There is no contention by the Respondent it ever
suggested a contract provision to exclude membership maintenance and checkoff
for 5 years. On the total record, therefore, I must believe Adams' insistence that
neither he nor Menist ever agreed to those terms, and I cannot understand Goldman's
assertion to the contrary. It is true Adams expressed the urgent need to achieve
"something" in writing so that the employees could be placated, but there was
hardly warrant for Goldman to assume that the Union was thereby agreeing to his
unaltered demands, much less to additional and more confining contract provisions
"emasculating the Union's status as certified majority representative." 2 I can only
conclude that the lawyer, perhaps in the enthusiasm of his cause, engaged in willful
thinking that Adams would accept all these demands Certainly the record does
not support his assertion that any agreement was reached.
I think in fairness it should also be stated that a finding adverse to the Respondent
in this case is further supported by the nature of its final insistent demands. Goldman
described the limited contract-no union membership obligation however restricted,
negation of checkoff, absolute right to discharge and exclusion of any seniority
concept, 5-year term-as the Company's way of "helping out the Union." More
appropriately, I believe, it gives rise to the inference suggested to the court of
appeals in N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131
(C.A. 1), cert. denied 346 U.S. 887:
It is difficult to believe that the Company with a straight face and in good
faith would have supposed that this proposal had the slightest chance of accept-
ance by a self-respecting union , or even that it might advance the negotiations
by affording a basis of discussion; rather, it looks more like a stalling tactic by
a party bent upon maintaining the pretense of bargaining.
It may well be that Goldman, without extensive experience in this type of case, mis-
conceived the breath of the statutory duty imposed upon an employer when bar-
gaining with a majority representative. The duty extends to good-faith consideration
of all proper subjects of collective bargaining, and not only those which at any
given moment constitute the employer's demands ,3 It "presupposes a desire to
reach ultimate agreement to enter into a collective bargaining agreement," instead
of a "take it or leave it" attitude .4 This does not mean that any one of Goldman's
demands, as conveyed by his secretary to Adams, or even all of them together, are
necessarily items which the Respondent, in good faith, could not insist upon in total
bargaining. It is rather in the context of Goldman's simultaneous adamant refusal
to consider or even discuss any economic matters or other union proposals that
aL L. Majure Transport Company, 95 NLRB 311, enfd 198 F 2d 735 (CA. 5).
The most pertinent provision of the statute, Section 8(d), reads as follows:
For the purposes of this section, to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of an agreement, or any
question arising thereunder, and the execution of a written contract incorporating
any agreement reached if requested by either party, but such obligation does not com-
pel either party to agree to a proposal or requiring the making of a concession : .
4 N.L.R.B. v. Insurance Agent's International Union, AFL-CIO (Prudential Ins. Co.),
361 U.S. 477.
586439-61-vol . 129-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they assume a revealing character as to the limited recognition which the Respondent
was willing to accord the Union as the employees' spokesman-5
In sum , I find that the Respondent refused outright to consider or even discuss
with the union representatives demands falling within the proper ambit of the sub-
jects of collective bargaining . As such, its conduct fell short of the statutory
obligation to bargain with the Union imposed by Section 8(a)('5). I find that by
such refusal, starting on February 15, 1960, the Respondent refused to bargain in
good faith with the certified representative of its employees, and thereby violated
Section 8 (a) (5) of the Act.6
As set out above, the employees voted in a secret election on January 27 and a
majority registered their approval of the Union. A regular certification of majority
status then issued to the labor organization, the Company did not thereafter question
its status, and at the hearing Respondent's Counsel restated its willingness to con-
tinue to accord the Union exclusive recognition. The complaint, nevertheless,
alleges specific acts by management representatives of interference with the em-
ployees' right to make an untrammeled choice on whether or not to engage in
collective bargaining. All the alleged coercive statements are said to have occurred
before the election.
Two employees, Urbistondo and Santiago,7 testified that about 2 weeks before
the election, Robbins, the president of the Company, assembled the employees during
working hours and spoke to them of the advantages they enjoyed in their employ-
ment. He expressly reminded them of such things as Christmas bonus, vacations,
wages, and his continuous efforts always to provide them with a full week's work.
His conceded purpose was to dissuade them from choosing a union. Urbistondo's
oral and Santiago's stipulated testimony is that Robbins, speaking in English and
with Supervisor Gonzales interpreting in Spanish, told the largely Spanish-speaking
employees that if the plant went union, the bonus and other favorable conditions
of employment would cease and they would have to work "harder." Both Robbins
and Gonzales denied flatly that any threats were voiced at all, although they admitted
Robbins did somewhat bespangle the working conditions.
Urbistondo and Hernandez, another employee, again corroborated by the stipu-
lated testimony of Santiago, also testified that 3 or 4 days before the election Gonzales
held a meeting of employees and repeated the threats allegedly made by Robbins
about a week before. And again Gonzales denied the accusation.
I have no reason to discredit Robbins or Gonzales with respect to these two
incidents . There is a suggestion in the General Counsel's argument that somehow
the Respondent's "bad faith" in the bargaining that followed the election is a factor
to be considered on the credibility issue raised here. But it is not disputed Robbins
was not a direct participant in the subsequent dealings with the Union. He turned
that matter entirely to his lawyer, who both advised and served him. The affirmative
injunction order to bargain which must issue, of course, will be directed to Robbins
asthe principal officer and manager of the Company, but his delinquency consisted
more in having washed his hands of the entire responsibility than in personally
misbehaving towards the Union. The lesson to him therefore is that an employer
may not simply say to a certified union "See my lawyer," and then forget his
statutory duty. He must do more; he must see to it-and this duty is never sus-
pended-that either he or someone on his behalf in fact does bargain in good faith
with the majority representative. I therefore cannot discredit him, as to events
preceding the election, because of what happened later.
Moreover, the testimony of the two supervisors was candid, forthright, and
plausible. They both impressed me favorably in their demeanor. In the employees'
recollection there were some frailties. Thus Urbistondo was sure Gonzales gathered
25 to 30 employees at the end of the lunch period and spoke into the afternoon,
while Hernandez insisted that meeting took place during the morning with only 12
to 15 employees present. I find that the testimony as a whole does not support the
complaint allegation respecting the speeches by Robbins or Gonzales.
G Compare the court's language in R L. White, et al., d/b/a White's Uvalde Mines V.
N L.R B , 255 F 2d 564, where it said :
We do not hold that under no possible circumstances can the mere content of various
proposals and counter proposals of management and union be sufficient evidence of a
want of good faith to justify a holding to that effect.
e Senorita Hosiery Mills, Inc„ 115 NLRB 1304
° Santiago did not appear at the hearing but the parties stipulated that if called he
would have testified as did Urbistondo and Hernandez, another employee witness
d
VANDERBILT PRODUCTS, INC . 1331
These same employees also said that one day shortly before the election Gonzales
was in the plant with a blank sheet of paper in his hand and asked several workmen
to put their names on it if they "don't want the Union." And again Gonzales denied
any such conduct or statement. A final item brought out by the General Counsel is
that about a week after the election Robbins called Urbistondo into the office and pro-
moted him to supervisor of the shipping room. Urbistondo testified that this came
about because Soleo, who had been supervisor in that department, was advanced to
office manager. He also said that after promoting him, Robbins asked whether he
was a union leader and he replied he had only signed a card. Robbins admitted
having mentioned the Union to Urbistondo at that time and explained his sole pur-
pose was to make clear that as a supervisor Urbistondo must place his first loyalty
with the Company.
I think in the circumstances, especially after having already offered to Urbistondo
a supervisory job-a position which apparently he was glad to accept-Robbins was
privileged to inquire into his union predilections, for the statute certainly emphasizes
the dichotomy between rank-and-file freedom to engage in union activities and the
correlative prerogative of management, and all its supervisory staff, to stand apart in
the interest of management. In any event, there were no such coercive circumstances
here as to warrant a finding of illegal interrogation.a With only the allegation of
solicitation by Gonzales for employees to indicate rejection of the Union as the re-
maining element of alleged misconduct, I do not think the record as a whole contains
sufficient affirmative substantial proof to support a finding of independently coercive
conduct in violation of Section 8 (a)( I) of the Act. As stated above, Gonzales ap-
peared to me a completely honest witness; his demeanor was beyond criticism.
Numbers alone, as between vying witnesses, do not provide a rational basis for
credibility resolutions. There was much talk of the Union in the plant during the
preelection period, and the testimony of the various witnesses even indicates there
may have been more than one occasion when groups gathered to rehash their views.
There was disagreement among them. Urbistondo and Hernandez may well have
been in error as to what Gonzales had in his hand, for at best they spoke only of a
white paper. On balance, I credit Gonzales.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with its operations set forth in section I, above, have a close, intimate, and sub-
stantial 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
It has been found that on February 15, 1960, and at all times thereafter, the Union
was the authorized and exclusive representative of the Respondent's employees in an
appropriate unit for the purposes of collective bargaining, and that on and after that
date the Respondent refused to bargain in good faith with said representative in viola-
tion of the Act. Accordingly, I shall recommend that the Respondent be ordered to
bargain, upon request, with the Union as the authorized and exclusive representative
of its employees in the appropriate unit.
In view of the nature of the unfair labor practices found to have been committed,
the commission of similar and other unfair labor practices reasonably may be antici-
pated. I shall therefore recommend that the Respondent be ordered to cease and
desist from in any manner infringing upon rights guaranteed to its employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Vanderbilt Products, Inc., New York, New York, is an employer within the
meaning of Section 2(2) of the Act.
2. Plastic, Moulders & Novelty Workers' Union, Local 132, International Ladies
Garment Workers Union, AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees and truckdrivers of the Respondent,
excluding office clerical employees, guards, watchmen, and all supervisors as defined
8 Blue Flash Express , Inc„ 109 NLRB 591.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Section 2 (11) of the Act, constitute, and have at all times material to this proceed-
ing constituted , a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. Plastic, Moulders & Novelty Workers' Union , Local 132, International Ladies
Garment Workers Union , AFL-CIO, was, on February 4, 1960, and at all times since
has been , the exclusive representative of all the employees in the aforesaid appropriate
bargaining unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
5. By refusing to bargain collectively in good faith with the Union as the exclusive
representative of the employees in the aforesaid appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (5) of the Act.
6. By the foregoing conduct the Respondent has interfered with, restrained, and
coerced employees in the rights guaranteed in Section 7 of the Act, and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labors practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Canal Marais Improvement Corporation 1 and International
Union of Operating Engineers , Locals 226, 226-A , and 226-C,
AFL-CIO , Petitioner. Case No. 15-RC-2233. January 13, 1961
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 Frederick F. Holroyd, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer contends that the Board is without jurisdiction in
this matter.
The Employer's only business is the ownership and operation of the
Wirth Building in New Orleans, Louisiana. It was stipulated at the
hearing that the Employer'in the last 12 months made purchases of
supplies and equipment of approximately $6,300, of which approxi-
mately $350 came from outside the State of Louisiana, that a local
laundry leases a small portion of the Wirth Building at a rental of less
than $5,000 per annum, and that the remainder of the building is
rented to the Commodity Stabilization Service, herein called CSS, a
branch of United States Department of Agriculture, at an annual
rental in excess of $100,000.
The Board's standard for assertion of jurisdiction over an employer
who operates an office building is set forth in Mistletoe Operating
Company, 122 NLRB 1534,1536. That standard requires that such an
' The Employer 'is name appears as amended at the hearing.
129 NLRB No. 161.