Woodmere, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1969

175 N.L.R.B. 425 (N.L.R.B. 1969)

WOODMERE , INC. 425
Woodmere , Inc. and Carpenters Local 971, United
Brotherhood of Carpenters and Joiners of
America , AFL-CIO and International Union of
District 50 , United Mine Workers of America,
Party to the Contract and Intervenor. Case
20-CA-4994
April 18, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January 2, 1969, Trial Examiner Herman
Marx issued his Decision 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, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed a supporting
brief; the Respondent filed exceptions and a
supporting brief, and the Intervenor filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Woodmere, Inc.,
Reno, Nevada, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: The complaint alleges,
in material substance, that an employer, Woodmere, Inc.
(herein the Respondent or Company), has unlawfully
contributed support to a labor organization named
International Union of District 50, United Mine Workers
of America' (herein District 50) by entering into a
collective bargaining agreement affecting employees of the
Company at a time when a question of representation of
the said employees existed; and has, by such conduct,
violated Section 8(a)(1) and (2) of the National Labor
Relations Act, as amended (herein the Act).'
The Respondent has filed an answer which, in material
substance, denies the commission of the unfair labor
practices alleged in the complaint.'
A hearing on the issues was held before me as duly
designated Trial Examiner on October 15, 1968, at Reno,
Nevada. Upon unopposed motions, District 50 was added
to this proceeding as "party to the contract", and was
given leave to intervene. The General Counsel of the
National Labor Relations Board, District 50, and the
Respondent Company appeared through respective
counsel, and all parties were afforded a full opportunity to
adduce evidence, examine and cross-examine witnesses
and submit oral argument and briefs A motion for
dismissal of the complaint, made by the Respondent after
the close of the evidence, and reserved for disposition
here, is denied on the basis of findings and conclusions set
forth below.
The General Counsel has filed a motion for correction
of the hearing transcript, and has submitted proof of due
service upon all other parties. No opposition has been
received, the motion is granted; and the transcript is
corrected in the particulars set forth in the motion.'
Upon the entire record, from my observation of the
demeanor of the witnesses, and having read and
considered the briefs filed with me since the close of the
hearing, I make the following findings of fact:
FINDINGS OF FACT
1. NATURE OF THE RESPONDENT'S BUSINESS,
JURISDICTION OF THE BOARD
The Company is a corporation; maintains a place of
business in Reno, Nevada, where it is engaged in the
business of assembling and selling finished wood cabinets;
and is, and has been at all material times, an employer
within the meaning of Section 2(2) of the Act.
During the year preceding the issuance of the
complaint, the Company, in the course and conduct of its
business operations in Nevada, purchased and received
goods valued in excess of $50,000 from suppliers located
outside the said state. By reason of such transactions, the
Company is, and has been at all times material to the
issues, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. Accordingly, the National
Labor Relations Board has jurisdiction over the subject
matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Union of District 50, United Mine
Workers of America and Carpenters Local 971, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (herein variously Local 971 or the Carpenters
Union) are, and have been at all material times, labor
The caption appears as amended at the hearing in this proceeding
'29USC 151, etseq
'The complaint was issued on August 12, 1968, and is based upon a
charge filed with the National Labor Relations Board on May 10, 1968
Copies of the charge, the complaint , and a notice of hearing have been
duly served upon all parties entitled thereto , except District 50, which
waived such service and notice at the hearing in this proceeding
`The hearing transcript is garbled at a number of other points , but as the
record adequately sets forth the material facts and issues, I deem it
unnecessary, in the absence of a motion by any party addressed to such
other particulars , to enter an order making the additional corrections
175 NLRB No. 69
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations within the meaning of Section 2(5) of the
Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company's operations are under the overall
supervision of its president, Abner S. Read, who is, and
has been at all times material here, a supervisor within the
meaning of Section 2(11) of the Act, and an agent of the
Company.
As the complaint alleges, and as the parties stipulated
at the hearing, "(a)1I employees of Respondent working
at Respondent's plant in Reno, Nevada, excluding office
clerical employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act." The unit has been thus appropriate at all times
material here, and, as the parties agree, does not include
"temporary employees."
The Respondent's business premises were formerly
located in Santa Clara, California, operating there under
the name of Pemline Manufacturing Company, and its
employees at that location were subject to one or another
of several collective bargaining contracts between Pemline
and various unions.
The enterprise began to move to its present location,
2500 Valley Road, Reno, Nevada, on February 9, 1968,
but had not yet completed the move at the time of the
hearing in this proceeding some eight months later,
although engaging in manufacturing operations at the new
location. As Read testified, these operations got under
way "very slowly", starting about the end of April 1968,
and "did not gain momentum until the end of May or
June."9
At some point between the start of the move and April
11, an attorney named George V. Gardner, of
Washington, D C., told a representative of District 50,
Andrew J. Bananto , at some unidentified location in the
East (perhaps Washington, D.C., where District 50, like
Gardner, has headquarters) that the Company "is just
getting a start . . . and would like to have a union" to
make its products acceptable to unions, and suggested that
Bananto "have a talk with Mr. Read about seeing
whether the employees would like to have . them
(District 50) represent the employees in a contract.
Bananto came to the Reno plant on April 11.' He did
not testify, and the only evidence of what he did there on
that occasion consists of Read's testimony to the effect
that Bananto introduced himself as a representative of
District 50, and "talked about the union and about our
people" (employees, apparently); that Read said that "we
had had unions in the past and were in favor of having a
'All dates mentioned herein occurred in 1968 , unless otherwise indicated
`The findings as to the meeting between Gardner and Bananto are based
on undisputed evidence of a talk Gardner gave to the Company's
employees at the Reno plant , in Read 's presence , on May 6 , 1968 On that
occasion , Read introduced Gardner to the employees as the Company's
attorney, and Gardner then proceeded to relate to them his conversation
with Bananto in the East Obviously , what Gardner told the employees
may be treated as admissions by the Company The precise date of the
meeting between Gardner and Bananto is not established , but it is evident
from Gardner's remarks to the employees and the sequence of events that
the meeting took place between the start of the move to Reno and April
11, 1968, when , as will appear in more detail later, the Company
recognized District 50 as bargaining representative of the Reno employees
The site of the conversation is not important.
union"; that he introduced Bananto to an employee,
James Conklin, as "our senior man in the plant"; that, in
response to a request by Conklin (apparently at some
point on April 11 after the introduction of Bananto to
Conklin, according to the sense of Read's testimony),
Read gave Conklin leave to assemble the employees
"outside the plant to discuss all of this" (not further
elaborated); that following the "outside" meeting (which
Read says he did not attend, and of which no details are
given by anyone who did), Conklin came to him with
Bananto, and stated that he and Bananto had had "a
meeting of the minds", and that he (Conklin) had had
"cards signed"; that Read "asked to see the cards", and
"wanted to know what it was all about"; that Conklin
said that "they (Conklin and Bananto) wouldn't let me see
them (the "cards") but that they could assure me they had
a majority of the people that were employed in the plant";
that Read said that he wished to have a "union shop",
and would agree to one if that were the "will" of the
employees; that Bananto and Conklin asked him to sign a
"recognition agreement"; that Bananto gave him such a
document for his signature; and that he agreed to the
request
The Company, through Read, and District 50, through
Bananto and another representative of the organization,
did, in fact, execute an instrument, which is dated April
11, 1968, and states, in substance, that the Company
"agrees to recognize" District 50, "as the designated and
selected representative" of the Company's production,
maintenance, shipping and receiving employees, for
collective-bargaining purposes, and that the "parties agree
to enter into a collective bargaining agreement as soon as
possible."'
According to Read, on April 11, following execution of
the recognition instrument, discussing a date for contract
negotiations, he told Bananto that it would be "necessary
for me to contact my counsel" (Gardner, as is evident
from subsequent events), and at one point or another
thereafter, April 25 was set as the date for such
negotiations.
At the time of execution of the recognition document,
the Company had in its employ a total of 15 or 16
employees, including 5 who then held a "temporary"
status (helping in the move or preparing the Reno plant
for operations). As is evident from his testimony, Read
did not seek any verification of District 50's representative
status beyond his alleged request of Conklin "to see the
cards." Read does not say what "cards" he had in mind,
but presumably his reference is to forms signed by
employees and designating District 50 as bargaining
representative. In any case, the alleged "cards" were not
produced at the hearing, nor is there any probative
evidence that District 50 was, in fact, the bargaining
representative of a majority of the employees in any
appropriate bargaining unit at the plant!
'Read testified at one point that Bananto came to the plant "about April
10," but other portions of his testimony indicate that it was on April 11.
The bargaining unit (production , maintenance , shipping and receiving
employees) set forth in the recognition agreement is for all practical
purposes the same as one defined in a later contract between District 50
and the . Company (G.C Exh 11) The parties stipulated at the hearing
that the composition of that contractual unit is the same, for the purposes
of this proceeding , as that of the unit described in the complaint (and
found above to be appropriate).
'Read's claim to the effect that Conklin "assured " him that a majority
of the employees had designated District 50 as bargaining representative is
plainly hearsay, and is not proof of representation Obviously , too, the
alleged "cards" themselves would be the best evidence of their contents.
WOODMERE , INC. 427
On April 30, Edmond Hansen , a representative of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (herein the Brotherhood), of which
Local 971 is a local affiliate, and Primo Bertoldi, a
business agent of Local 971, called on Read at the Reno
plant, introduced themselves, and expressed interest in
representing the Company's employees. Read stated that
they were "late"; and that District 50 was already "in"
the plant. The union representatives inquired how that had
come about, and Read replied that he had consulted an
industry association in California concerning union
representation of the employees at the Reno plant, and
that the organization had recommended that the Company
"get District 50 in.""
On May 1, Conklin called on Hansen and Bertoldi at a
union hall in Reno where Local 971 has its headquarters,
told them that he and other employees were dissatisfied
with working conditions at the Company's plant, and
expressed interest in what the Brotherhood or its local
affiliate had to offer in wage scales and other benefits.
Hansen and Bertoldi gave him some information as to
union standards in the area, and suggested that he and
other interested employees meet with them at the union
hall on the evening of May 2.
Such a meeting was held on that date under the
auspices of Local 971, and was attended by 11
"permanent" employees, including Conklin, and by 2 who
were "temporary." Following some discussion of union
contractual provisions, each of the employees present
executed a card containing language to the effect that the
signatory was applying for membership in the
Brotherhood, and authorizing it to act for him as
collective-bargaining agent with respect to wages, hours
and other conditions of employment Hansen told the
employees at the meeting that the cards would be used to
secure an election, but either he or Bertoldi or another
union representative present also told them that the cards
were "for representatiion to present to the Company to
negotiate for a contract." The 11 "permanent" employees
who signed cards that night constituted a majority of the
appropriate unit described above, which then numbered 16
employees."
Conklin told Hansen at the union hall that evening that
a number of employees interested in representation had
been unable to attend, and requested, and was given, some
authorization forms for submission to them. He returned
to the union hall on the following day and gave Hansen
five cards purportedly signed by employees who had not
been at the meeting.'
"Contrary to Hansen and Bertoldi, Read denies that he told them that
the industry association had "recommended District 50." but the testimony
of the union representatives in that regard is given corroborative weight by
the evidence that Gardner, the Company's attorney, had previously
suggested to Bananto that he talk to Read about a contract with District
50 I do not credit Read 's denial
"I am satisfied from the circumstances surrounding the execution of the
13 cards at the meeting that they are authentic See Hunter Engineering
Company, 104 NLRB 1016, 1020, enfd 215 F.2d 916 (C A 8) Moreover,
the Respondent's brief concedes that "ten carpenter authorization cards
were signed by permanent unit employees" at the meeting (Actually, as
found above, II such employees signed The brief erroneously treats an
employee named Jarvis as "temporary.")
"The signatures on the five cards are not authenticated They were
offered and received in evidence not as proof of representation , but as part
of the showing submitted to the Board 's Region 20 in support of a petition
for representation filed by Local 971 with the regional office on May 7,
1968 The five cards contribute nothing of substance to a resolution of the
issues
On May 3, a Friday, Local 971 mailed a representation
petition, together with the 18 executed cards as a
supporting showing of interest by the employees, to the
office of the Board's Region 20 in San Francisco, where
they were received on the following Tuesday, May 7.
About 3.20 p.m. on May 3, Hansen, on behalf of
Bertoldi and Local 971, telephoned a message to Western
Union in Reno for transmission to "Woodmere Corp. Mr.
Reed"" (as taken down by Western Union's message
receiving operator), giving the operator the Company's
correct telephone number and street address for
transmission of the message; and the name of Primo
Bertoldi as the message sender, identifying him as business
agent of "Carpenter Local 971," and stating that
organization's correct address. The message was, in
substance, that a majority of the Company's employees
had designated Local 971 as their bargaining agent, and
that the organization was requesting that the Company
recognize it and bargain with it regarding terms and
conditions of employment.
Read denies that he received "a telegram" from Local
971 during the period between April 11, the date of the
recognition agreement, and May 7, when, as will appear
presently in more detail, District 50 and the Company
entered into a contract prescribing terms and conditions of
employment for the Company's employees. The weight of
this denial will be considered at a subsequent point in the
light of evidence of Western Union's procedures in
transmitting messages in Reno to commercial enterprises
by telephone and mailed confirmation copy.
B. The Execution of the Contract Alleged in the
Complaint
On the morning of May 6, Read had a conversation at
the plant with an employee named Isidor Hlavinka, telling
the latter that the Company had recognized District 50
with a view to negotiating a contract with it, and that he
would assemble the employees for a meeting with the
management regarding the matter. In the course of the
conversation, Hlavinka informed Read that employees of
the Company had met at the union hall of the Carpenters
Union the previous Thursday evening, that that
organization had asked them to sign "papers" authorizing
it to represent them, and that Conklin had then "called
Bananto and told him" about this development.
Gardner was at the plant that morning, and as is
evident from the sequence of subsequent events, at least
one of his purposes was to meet with one or more
representatives of District 50 to conclude an agreement
affecting the Company's employees.
That same morning, shortly after his conversation with
Hlavinka, Read convened a meeting at the plant, which
was attended by Read and Gardner, among other
management personnel, and by the Company's entire
"permanent" and "temporary" labor force. Gardner and
Read "did most of the talking ," Read introducing
Gardner as the Company's attorney, and stating, among
other things, that Gardner would "represent [it] in
negotiations."
Gardner then addressed the employees, relating his
conversation with Bananto in the East, which has been
described above, and then stating that the Company was
obligated by its recognition agreement with District 50 to
negotiate a contract with that organization, and that he
"The intended addressees, as is evident, were Woodmere, Inc., and
Read.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had come "out here" (to Reno) to represent the Company
in such negotiations.
Within a few minutes after the meeting ended, Bananto
appeared at the plant, and Conklin and Hlavinka (who
had entered the Company's employ on April 19, and had
signed a bargaining authorization for District 50 about a
week later, and still another for the Brotherhood at the
May 2 meeting) requested and received permission from
Read to hold a meeting of "union members" (employees
holding membership in an affiliate of District 50, Local
14647, according to the sense of Hlavinka's testimony)
and the other employees. The meeting was thereupon held
out of the presence of management personnel. The record
does not specify the number of employees who attended
that meeting, nor the number who were "members" of
District 50 or its local affiliate. In any event, as Hlavinka
testified, Bananto suggested that a "negotiating
committee" be designated, and the "members of Local
14647," by a show of hands, then agreed upon Hlavinka,
Conklin, and an employee named Alice Cunningham as
the committee."
The three committee members and Bananto then
proceeded to Read's office and told him and Gardner that
they were ready to proceed with negotiations. These began
almost immediately thereafter, Gardner representing the
Company, and Bananto and the committee representing
District 50 and its local affiliate, and the upshot was a
contract between the Company and District 50, executed
on the following day, May 7. The contract prescribes a
wide range of terms and conditions of employment for the
Company's employees, including provisions for wages,
hours, seniority, checkoff of union dues and gnevance and
arbitration procedures; and provides that it is to remain in
effect for three years, and thereafter "from year to year"
until termination or modification in accordance with a
specified notice procedure. According to Hlavinka, the
negotiations took about "half a day" (although he also
stated that they lasted from about 9:30 a.m. to 1 I p m on
May 6), but there are no details of any negotiations or of
proposals or counterproposals varying in any manner
from the contract as executed.
Notice of the filing of the representation petititon was
received by the Company at some point after May 7, but,
as will presently appear, that does not affect the issue of
the legality of the May 7 contract, which hinges on other
facts
C. Discussion of the issues; Concluding Findings
The General Counsel, asserting that the record warrants
a finding that the message containing Local 97l's claim of
representation and bargaining demand, given Western
Union by Hansen on May 3, was received by the
Company before conclusion of the contract with District
50 on May 7, maintains that the message, "together with
Respondent's knowledge of Local 971's organizational
activities, created a real question concerning
representation"; and that thus, by enterning into the
contract of May 7 with District 50, the Respondent
unlawfully assisted that organization.
"The record does not establish how many of the employees held
membership in District 50 or its local at any time Hlavmka holds four
posts with the local , and there is some vague intimation in his testimony
that he holds that many because the local's membership is small , but, in
any case , for reasons that will appear later, the fact that an unspecified
number of employees assented to the formation and composition of the
negotiating committee does not affect any material issue here
The Respondent, on the other hand, contends that there
is a failure of proof that it received the message of May 3;
that the cards signed at the behest of the Carpenters
Union were "procured for the limited purpose of
obtaining a representation election", and were "not
binding upon the company"; and that, in any case, the
Company had validly recognized District 50 by force of
the agreement of April 11, had entered into negotiations
and the May 7 contract reasonably soon thereafter, and
had a right to enter into the contract of that date under
the doctrine of Keller Plastics Eastern, 157 NLRB 583.
There the Board held (at p. 587) that where " a bargaining
status (is) established as the result of voluntary
recognition of a majority representative . the parties
must be afforded a reasonable time to bargain and to
execute the contracts resulting from such bargaining.""
Thus, so the argument runs, the representative status of
Local 971 on May 7 has no bearing on the validity of the
contract of that date.
Turning first to the question of the Company's receipt
of the Western Union message, it is true that there is no
direct evidence that it was actually received, but the
record as a whole warrants an inference that the Company
received Hansen's message at some point prior to the
execution of the May 7 contract.
Under the regular operating procedures of Western
Union's Reno office, a "business message" such as that
telephoned by Hansen, together with the related telephone
and address information given, is taken down by the
receiving operator on a recording form called a "receipt
copy," and duplicated on another such form. The
duplicate is called a "delivery copy " A "message file"
pertaining to the transaction is kept by the office for six
months, and the "receipt copy" is retained for that period
in the file, but this is not necessarily the case with the
"delivery copy." Where, as in this case, there is an
individual addressee, and the sender does not request
"personal delivery" and supplies a telephone number by
which to reach the addressee, the same or another
operator, upon completion of the "delivery copy," makes
as many as several attempts over a period of some hours
to deliver the message to the individual addressee or, if he
is unavailable, to another person at the given telephone
number, who will accept the message for the addressee.
The time and result of each attempt is noted on the
"delivery copy." No other record of the attempt or
resulting transmission is made. If telephone transmission
is effected, the "delivery copy" will be mailed to the
addressee, upon his request, usually before the end of the
day of transmission (but the record does not establish,
with any clarity, at least, what is done with the copy if no
such request is made.)" If the message is not transmitted
for any reason, the "delivery copy," by then reflecting the
time and results of transmission attempts, would be
retained by the Reno office for six months, and the office
would prepare a "service message" noting nondelivery,
attach it to the "receipt copy", and notify the sender of
nondelivery either by telephone or by mailed transmission
of a copy of the "service message "
"See, also, Sound Contractors Association , 162 NLRB No 45, Allred
Super Markets, Inc, 167 NLRB No. 48, San Clemente Publishing
Corporation. 167 NLRB No 2, Universal Gear Service Corporation, 157
NLRB 1169.
"The record reflects some confusion as to the disposition of the
"delivery copy " after transmission of the message by telephone Under
direct examination , Joseph Norfleet (as the name appears in the amended
transcript ), manager of Western Union's Reno office , gave testimony to
the effect that mailing of the "delivery copy" to the addressee routinely
WOODMERE , INC. 429
As Joseph Norfleet, manager of Western Union's Reno
office, testified, an examination he made of its records on
June 20, about six weeks after the message was given the
office for transmission , turned up the "receipt copy"
(which is in evidence), but not the "delivery copy." He
encountered no "service message," and none is attached to
the "receipt copy."
About 2 or 3 days after Hansen gave Western Union
the message, Bertoldi, named therein as the sender,
received a confirmation copy in the mail from Western
Union at Local 971's office, but, as he testified credibly,
he has never received any notification from Western
Union that it had been unable to transmit the message to
the addressees."
The evidence of Western Union's operating procedures,
the results of Norfleet's investigation of its records, and
the fact that Bertoldi has never been notified of
nondelivery of his message fairly warrant an inference that
Read, or someone at the Company's office in his behalf,
received the message of May 3, at least by telephone, at
some point before the execution of the May 7 contract, in
the absence of a credible negation by the Company that it
received the message, whether by Read or another.
I find no such negation. Read was the sole witness
called by the Respondent on that subject (or on any other,
for that matter, testifying as a "joint witness" for District
50 as well). He stated that the Company' s mailing address
is a "post office box," but that begs the question whether
the message was received by telephone or by mail bearing
the Company's correct street address. The post office box,
obviously, has no connection with the Company's
telephone number, and, plainly, mail addressed to the
Company at its business location, 2500 Valley Road,
Reno , Nevada, would, in the normal course of mail
delivery, be delivered at that address, as, in fact, has been
the case with copies of the representation petition, and of
the charge, complaint and subpoena in this proceeding, all
of them addressed to the Company at its correct street
location. The nub of the matter is that substantially the
total record made by District 50 and the Company on the
question of receipt of the message consists of the following
excerpt from Read's examination and testimony:
Q (By Mr Cefalo) . . . Did you ever receive a
telegram from any labor union during the calendar
period here, which is April l1 to May 7?
A. No.
This disclaimer has manifest ambiguity. One would
think that if Read did not receive Hansen' s message in
any form at any time prior to the execution of the
contract on May 7, it would be a simple matter to present
that fact in evidence, but his denial that he received "a
telegram" leaves one to guess whether he' is alluding to "a
telegram " in the widely understood sense of a message
transmitted in writing to an addressee by Western Union,
or whether his denial encompasses a disclaimer that he
follows telephone transmission , but then , under cross-examination, in a
context immediately following interrogation on the subject of messenger
delivery, which is made, following completed telephone transmission, only
if requested by the addressee , Norfleet's testimony contains some
indication that that is also the case with mail delivery It may be that
Norfleet at that point had in mind his prior testimony regarding messenger
delivery and unwittingly left the impression that mail delivery is similarly
optional with the addressee , but the record on that aspect lacks sufficient
clarity to warrant a finding in the premises
"Bertoldi's testimony that Western Union has not notified him of
nondelivery is given corroborative support by the fact that the "receipt
copy" turned up by Norfleet's investigation had no "service message"
attached
received a message over the telephone, or that another at
the Company's premises relayed such a message to him.18
Summarizing the matter, the weight of the evidence
persuades me, and I find, that Read and the Company
received the message embodying Local 971's claim of
representation and bargaining request prior to the
execution of the May 7 contract."
The Respondent' s reliance upon Keller Plastics is
misplaced, for its doctrine is obviously applicable only to
recognition of a "majority representative" (Keller Plastics
at p. 587). In its brief, the Respondent assumes such a
status in the absence of an allegation and evidence by the
General Counsel impugning the validity of the recognition
agreement 20 But this misconceives the location of the
burden of proof regarding the viability of that agreement.
It has been long established that "an employer faced
with conflicting claims of two or more rival unions which
give rise to a real question of representation may not
recognize or enter into a contract with one of these unions
until its right to be recognized has finally been determined
under the special procedures provided in the Act" (Novak
Logging Company, 119 NLRB 1573, 1574, citing Midwest
Piping & Supply Co., Inc., 63 NLRB 1060, and other
cases to the same effect). Applying that doctrine here, the
General Counsel's prima facie case is, in essence, that
Local 971's claim of representation, based on the
execution of the authorization cards at the May 2
meeting, was "colorable," and that the Company, with
"Particularly in view of the fact that Hansen gave the Western Union
receiving operator the Company's correct telephone number , I see no
reason to believe that the slight variance between "Woodmere Corp." and
"Reed ," the addressees ' names as taken down by the operator, and
"Woodmere, Inc," and " Read ," the respective correct names, resulted in
a failure to transmit the message
"The finding as to the receipt of the message is made without regard to
the timing of the negotiations , but it is nevertheless noteworthy that
Gardner and Bananto appeared at the plant for contract negotiations on
Monday morning , May 6, hard on the heels of the weekend that followed
the Friday afternoon on which Hansen gave Western Union the message,
and that according to the information Hlavinka gave Read on the morning
of May 6, Conklin had notified Bananto of events at the meeting held by
the Carpenters Union on May 2 shortly after the meeting took place One
may accept Read 's claim that negotiations had originally been scheduled
for April 25, but the question still remains why they began so soon after
the May 2 meeting and the message given on the following day to Western
Union for transmission to the Company and Read True, Hlavinka
testified that negotiations had been scheduled "around the third week in
April," but that "Mr Gardner was out east on legal business and could
not be there, so they postponed it until May 6," but it is evident that
Hlavinka has no first hand knowledge of what "they" did He entered the
Company's employ on April 19, only a few days before the date on which
negotiations were allegedly initially scheduled ; and it is evident from his
testimony that he is guessing about the date of the recognition agreement
("April 12 or April 20") and the alleged initial negotiating date, that
his information about those dates is hearsay , and that he first learned of
the recognition agreement and the impending negotiations on the morning
of May 6 when read mentioned these matters to him . His first connection
with District 50, so far as appears, was when he signed an "authorization
card or membership application" for it on April 26 or 28, according to his
estimate , and, as his testimony establishes , he had no negotiating or other
representative capacity for District 50 until the morning of May 6 when he
became a member of its negotiating committee as a result of a show of an
unspecified number of hands Neither District 50 nor the Respondent, who
are privy to their negotiating arrangements , offered any explanation why
May 6 was selected for negotiations in preference to any other date, and in
the absence of such an explanation , one may fairly believe, in the context
of events, that the Company' s receipt of Local 971' s claim of
representation triggered the negotiations that followed on May 6 However,
as stated above, the conclusion that Read and the Company received the
message does not hinge on the timing of the May 6 negotiations
"District 50 has filed no brief, but obviously shares the Company's
position regarding the viability of the recognition agreement.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knowledge of Local 971's claim, communicated by the
Western Union message, entered into the May 7 contract
with District 50 in the face of Local 971's claim. The
General Counsel must prevail upon proof of these facts
unless the Company or District 50 establishes that they
had a right to enter into the May 7 contract,
notwithstanding the conflicting claims of representation.
They assert such a right by force of the recognition
agreement, or, in other words, they rest upon the
agreement and its asserted effect under the Keller Plastics
doctrine as an affirmative defense to the General
Counsel's claim. The burden of sustaining that defense is
theirs.
Much in the record supports a conclusion that District
50 was the Company's choice as bargaining representative
for its employees rather than that of the employees.
District 50 was recommended to Read by an industry
association, and, as is evident from Gardner's
conversation with Bananto prior to April 11, the
Company was seeking a union to represent its employees
so that its products would be regarded as "union made"
and be acceptable to unions (which, as may be inferred,
represent employees who might have occasion to handle
the Company's products after manufacture). What is
more, the Company itself was at the bottom of Bananto's
visit to the plant on April ll to discuss representation of
the employees with Read. Gardner, acting as the
Company's agent, had suggested the idea to Bananto.21
And, in addition, if the "outside" meeting between
Bananto and any employees, to which Read refers,
occurred, Read's own testimony indicates that he did
much to facilitate the affair, first introducting Bananto to
Conklin, and then, allegedly at Conklin's request, granting
"time" for the meeting.
To cap the matter, Read agreed to recognition without
any demonstration of District 50's representative status.
To be sure, he claims that he asked to see the "cards",
and that Conklin declined to show them, but one would
think that the very refusal, if it occurred, would have led
him to seek some assurance other than Conklin's word,
such as, for example, an examination of the cards by a
neutral person or agency, if not an election under the
Board's auspices. It appears to me that Read's request to
see the "cards", if it was made, was a charade aimed at
giving the recognition agreement a gloss of regularity
which it lacked.
That view of the matter is given added point by the fact
that there is no evidence of what took place at the alleged
"outside" meeting, nor of the number or identity of those
who attended, apart from Conklin and Bananto , or that
even so much as one employee signed a "card" or other
document designating District 50 as bargaining
representative prior to the execution of the recognition
agreement. The failure to produce any such evidence is
especially noteworthy in view of the fact that although
Bananto is a representative of District 50, and that the
organization and the Company presented Read as their
"joint witness," neither party called Bananto as a witness
or explained his absence. r
"In the light of Read's introduction of Gardner to the employees on
May 6 and Gardner' s activities at the plant , I have no doubt that Gardner
acted as the Company 's agent in his discussion with Bananto , and that his
suggestion on that occasion led to Bananto 's visit to Read on Apnl 11.
"The unexplained failure to produce Bananto or any evidence of
representation such as the alleged "cards" to which Read alludes, warrants
application to Distract 50, at least , of the doctrine that ". . where the
party on whom rests the burden of evidence as to a particular fact has the
evidence within his control and withholds it, the presumption is that such
On the basis of what has been said, I am convinced and
find that the Company recognized Distract 50 without a
good faith belief that the latter represented a majority of
the unit employees, extending recognition to further its
aim of dealing with a union in order to be in a position to
represent that its products are "union made."
But even if one were to assume that the Company
believed at the time of recognition that District 50 had
majority status, the end result here would be the same, for
the critical fact is that the Company and District 50 have
failed to establish that such a representative status in fact
existed. Proof of the recognition agreement alone will not
suffice, and I hold, in short, that the Keller Plastics
doctrine is inapposite here.2J
Finally, I find no merit in the Respondent's position
that the cards signed at the Carpenters Union meeting of
May 2 were "for the limited purpose of obtaining a
representation election" and thus "not binding upon the
company." The thrust of this position is not entirely clear,
but I take it to be that the cards signed at the meeting did
not have the effect of designating a bargaining
representative and thus raised no question of
representation.
In any case, the position is factually inaccurate, for the
employees were not told that the cards would be used only
to secure an election. The cards themselves unequivocally
vest bargaining authority in the Brotherhood, which acted
in concert with its local affiliate in seeking to organize the
employees, and later sponsored its local's claim of
representation and bargaining request; and although the
employees were informed at the meeting that the cards
"were to be used to get an election", they were also told
there, as Hlavinka testified, that the cards were "for
representation to present to the Company for a contract."
There is no evidence that the employees were induced to
sign the cards by misrepresentation, and they were, in
effect, put on notice that the cards were usable by the
Brotherhood or its local affiliate as bargaining
authorizations, or to seek a formal certification of one or
the other as bargaining representative by means of an
election . The issues, moreover , require no determination
whether the cards in question are "binding" on the
Respondent in the sense of imposing a bargaining
obligation upon it. It is enough in that regard that the
claim of representation based on the cards is colorable.
That it has that character is beyond cavil.
The claim and its assertion raised a real question of
representation - a question underscored, incidentally, by
the fact that Conklin, Hlavinka, and Cunningham, who
purportedly joined, as a committee of employees, with
Bananto in representing District 50 in negotiating the May
7 contract with Gardner, only a few days earlier attended
the meeting held by the Carpenters Union and signed
authorization cards there , designating the Brotherhood as
their representative.
The sum of the matter is that by entering into the
contract of May 7, while the question of representation
existed, the Company contributed support to District 50,
thereby violating Section 8(a)(2) of the Act; and interfered
evidence is against his interest and insistence ." N L.R B. v. Ohio Calcium
Company, 133 F 2d 721, 727 (C A . 6). See also Wigmore, Evidence,
section 285 (3d ed 1940), and cases cited.
"Comparably, an agreement recognizing a union may not act as a bar to
a representation petition by a rival union unless it affirmatively appears
that the employer has "extended recognition . . in good faith on the basis
of a previously demonstrated showing of majority " Sound Contractors
Association, 162 NLRB No. 45, citing and applying the Keller Plastics
doctrine
WOODMERE , INC. 431
with, restrained, and coerced employees in the exercise of
rights guaranteed them by Section 7 of the Act, thus
violating Section 8(a)(1) of the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section 1, 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
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(1) and (2)
of the Act, I shall recommend that it cease and desist
from its unfair labor practices and take certain affirmative
actions designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following conclusions of law:
1. Woodmere, Inc., is, and has been at all material
times, an employer within the meaning of Section 2(2) of
the Act.
2. District 50 and Local 971 are, and have been at all
material times, labor organizations within the meaning of
Section 2(5) of the Act
3. By contributing support to District 50, as found
above, the Company has engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(a)(2) of the Act.
4. By interfering with, restraining, and coercing
employees, as found above, in the exercise of rights
guaranteed them by Section 7 of the Act, the Company
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that Woodmere, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from-
(a) Contributing support to International Union of
District 50, United Mine Workers of America.
(b) Giving effect to its contract dated May 7, 1968,
with International Union of District 50, United Mine
Workers of America, or to any modification, extension or
renewal of said agreement;
(c) Recognizing International Union of District 50,
United Mine Workers of America, as the exclusive
representative of any bargaining unit of its employees at
its Reno, Nevada, plant for the purposes of collective
bargaining, unless and until the said International Union
of District 50, United Mine Workers of America shall
have been certified by the National Labor Relations
Board as the exclusive bargaining representative of such
employees.
(d) In any like or related manner interfering with,
restraining , or coercing any of its employees in the
exercise of rights guaranteed them by Section 7 of the
National Labor Relations Act, as amended.
2. Take the following actions which, I find, will
effectuate the policies of the Act:
(a) Withdraw recognition from International Union of
District 50, United Mine Workers of America, as the
representative of any employees at the said Reno, Nevada,
plant for the purposes of collective bargaining unless and
until the said International Union of District 50, United
Mine Workers of America shall have been certified by the
Board as aforesaid.
(b) Post at its plant and place of business in Reno,
Nevada, copies of the attached notice marked "Appendix
A." Copies of said notice, on forms provided by the
Regional Director for Region 20 of the National Labor
Relations Board, shall, after being duly signed by the
Company's authorized representative, be thus posted by it
immediately upon receipt thereof, and maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Company to insure that said notice is not altered, defaced,
or covered by any other material.2d
(c) Notify the said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps the
Respondent has taken to comply therewith.2S
"In the event that this Recommended Order is adopted by the National
Labor Relations Board, the words "a Decision and Order" shall be
substituted for the words "the Recommended Order of a Trial Examiner"
in the notice In the additional event that the Board 's Order is enforced by
a decree of the United States Court of Appeals, the words "a Decree of
the United States Court of Appeals, enforcing an Order" shall be
substituted for the words "a Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the said Regional
Director , in writing, within 10 days from the date of this Order, what steps
the Respondent has taken to comply therewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
emplo ees that:WE WILL NOT contribute support to International
Union of District 50, United Mine Workers of
America.
WE WILL NOT give effect to our contract with the
said International Union of District 50, United Mine
Workers of America, or to any modification, extension
or renewal of the said agreement.
WE WILL withdraw and withhold recognition from
International Union of District 50, United Mine
Workers of America, as the exclusive representative of
any bargaining unit of our employees at this plant for
the purposes of collective bargaining unless and until
the said International Union of District 50, United
Mine Workers of America shall have been certified by
the National Labor Relations Board as the exclusive
representative of such employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their right to self-organization; to form, join, or
assist labor organizations; to join or assist Carpenters
Local 971, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO; to bargain collectively
through representatives of their own choosing; to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection;
and to refrain from any or all of such activities.
WOODMERE, INC
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 13050 Federal
Building, 450 Golden Gate Avenue, Box 36047, San
Francisco, California, Telephone 566-0335.