Leader News Co., Inc.

LEADER NEWS CO., INC. 119 organizers to "employee. areas" and prohibiting such activities when all em- ployees involved are on nonworking time, not only on the selling floors and in such other areas as are reasonably closed to discussion or to the employees in- volved but in all other portions of the premises ; and by interrogation concerning and promise of benefit in connection with union activities, the Respondent inter- fered with, restrained , and coerced its employees in violation of Section 8 (a) (1) of the Act. Beyond the rules against solicitation which the Respondent is testing and are here found to be violative of the Act, there is no evidence of frequent or system- atic interference or of such intent as would warrant reasonable apprehension of danger that it will commit unfair labor practices different from or not related to those found herein. It will therefore be recommended that the order herein be coextensive with the unfair labor practices actually committed by the Re- spondent, and be limited to any like or related conduct. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. Retail Clerks International Association , Local No. 1515-M. F., A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By promulgating and enforcing a rule prohibiting nonemployee union organ- izers from soliciting employees on behalf of a union on the employees' own time and in public areas, without limitation of such areas to the selling floors ; by promulgating and enforcing a rule prohibiting employee organizers from solicit- ing for a union on nonworking time in any portion of the Respondent 's premises other than "employee areas " ; and by interrogation concerning an employee's union affiliation , activities, and sympathies , and promise of benefit in connection therewith, thereby interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and ( 7) of the Act. [Recommendations omitted from publication in this volume ] LEADER NEWS CO., INC. and OFFICE EMPLOYES INTERNATIONAL UNION, LOCAL 153, AFL. Case No. 2-CA-1609. February 15, 1952 Decision and Order On August 7, 1951, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate 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, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is hereby denied because 98 NLRB No. 22. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record, including the Respondent's brief and exceptions, ade-' quately present the issues and positions of the,parties. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby rejects the Trial Examiner's findings, conclu- sions, and recommendations, except insofar as they are consistent with our findings, conclusions, and order hereinafter set forth. 1. The Trial Examiner found that the Respondent violated Section 8 (a) (5) and (1) of the Act by failing to answer the Union's letter requesting negotiations and by dealing instead directly with the employees which resulted in the granting of certain benefits and con- cessions . We do not agree. The facts, which we find to be relevant to this issue, are substantially as follows : On August 24, 1950, a majority of the Respondent's employees signed union-authorization cards.' On August 28, the Respondent received from the Union a letter stating that the Union represented the Re- spondent's employees and requesting an appointment to discuss recog- nition and a contract. The Respondent's president thereupon sum- moned to his office his son, Stanley M. Estrow, a practicing attorney in New York City. When Estrow appeared at his father's office in the plant, two employees 2 entered and informed the Respondent that they had been designated by the employees to talk to Attorney Estrow before any steps were taken by the Respondent with respect to the Union's letter, and that the employees wanted to deal directly with management. When Estrow remonstrated that he did not see how he could deal with them directly in view of the Union's letter, he was assured that the employees could negotiate directly with manage- ment. Estrow replied in effect that the Respondent would bargain with the Union or with the employees, but that the Respondent would deal directly with the employees only if the Union approved that pro- cedure. To that end Estrow suggested that the employees check with the Union and advise him whether the Union would consent to direct negotiations with the employees. After the union steward made a telephone call to the Union, the employees reported to Estrow that the Union had agreed to direct employee negotiations 3 and again I In view of our decision herein, we find it unnecessary to determine whether the authori- zation cards were to become effective only after the employees failed in direct negotiations with the Respondent and whether the Trial Examiner erred in excluding testimony offered by the Respondent to establish such a condition. 2 Solomon , the union steward, and Marilyn Cohen. While Ben J. Cohan, the Union's business representative , denied having consented to such a procedure, he admitted that on August 24 lie told the employees to attend meetings with Estrow and to "discuss . . . improvements in wages, liouis and working conditions." LEADER NEWS Co., INC. 121 requested that the Respondent bargain directly with the employees. Such direct negotiations were thereupon undertaken in several meet- ings 4 with Estrow, and by September 5 the employees accepted Estrow's offer of a wage increase and other benefits. Throughout this period the Union, although fully aware of the direct negotiations which were in progress, at no time voiced any protest. Upon the basis of the record as a whole, we cannot say that Respond- ent has failed to perform its statutory obligations. We arrive at this conclusion in view of the Respondent's expressed willingness to bargain with the Union upon receipt of its letter, its expressed unwill- ingness to deal directly with the employees unless the Union were to authorize such procedure, its exhortation to the employees to check with the Union and report back whether such authorization had been obtained, its undertaking of such direct negotiations in good faith reliance upon the employees' assurance that the Union had been advised and had authorized such dealings, and the Union's failure to lodge any protest, although fully aware of the direct negotiations over a period of more than a week. This conduct not only verified the correctness of the employees' report to Estrow, but under all the circumstances was tantamount at least to tacit authorization to the employees to deal directly with Respondent.5 Indeed, even the General Counsel conceded at the hearing that the Respondent acted in good faith in dealing directly with the employees. We accordingly find that the Respondent did not violate Section 8 (a) (5) and (1) of the Act by its conduct hereinabove described. 2. The Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act by two statements made in the course of its meeting with the employees. We do not agree. (a) The first alleged statement found by the Trial Examiner was a threat to close the plant "if the union came in." This finding is based solely on the testimony of Rafaniello, who testified on direct examination by the General Counsel as follows : Q. Now, during those first two or three meetings with Mr. Stanley Estrow, in Mr. Michael Estrow's office, do you recall whether anything was said about the union coming into the plant? A. I believe at that very first meeting Mr. Estrow said some- thing about if the union came in, he would have to close down the shop because he couldn't give us the raises that we wanted. The Trial Examiner credited this testimony of Rafaniello on the stated ground that Estrow did not deny having made the alleged * For reasons indicated infra, we find , contrary to the Trial Examiner, that no state- ments violative of the Act were made during these meetings. 5 Thus, the instant case is readily distinguishable on its facts from Reeder Motor Co., 96 NLRB 831. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement. Although Attorney Estrow did not specifically deny having made this statement in so many words, he gave a different version of the conversation when he testified, in narrative form : So then I had previously told them that we were not in a very good position financially, insofar as any arrangements with the employees were concerned, so that they could not expect anything too munificent from us, that we could not be as liberal as we would like to be. Estrow's testimony was not only corroborated by that of employee Myrna Pitt; she specifically denied that Estrow made the threat in question. Moreover, although there were at least 15 employees present at the time of the alleged threat, no employee, except Rafaniello, was placed on the stand to testify as to the threat. On the other hand, Rafanlello admitted at the hearing that at about the time in question he was playing "tick-tack-toe" with another employee and "wasn't listening" to Estrow. In fact, at one point in his testimony on cross-examination, Rafaniello stated that he did not "recall" that Estrow mentioned the Union in making the alleged threat. In addition, on independent matters, Rafaniello changed his testimony during the course of the hearing and also admitted having lied to Estrow. Under all the circumstances, we believe that the Trial Examiner's credibility finding is clearly in conflict with the preponderance of the evidence on the record as a whole. Accord- ingly, we do not credit Rafaniello's testimony in this respect and find that Estrow did not threaten to close the plant in the event of union organization. (b) The Trial Examiner found that the second statement was made during the bargaining negotiations on September 5, after the employees had first rejected the wage increase offered by Estrow and expressed their desire to bargain through the Union. At this point, when employee Pitt asked Estrow what would happen to those employees who wanted to accept the Respondent's offer, Estrow replied that "because of the people who wanted to join the Union, no one would get anything." The Trial Examiner found that this was a coercive statement proscribed by Section 8 (a) (1) of the Act. Although not entirely free from doubt, we believe that, in view of the Respondent's conduct during the direct ' negotiations with the employees, the statement did not have a reasonable tendency to restrain and coerce the employees. Under the circumstances, the reasonable "implication of this statement was that the Respondent could not engage in individual dealings once the employees desired to negotiate through the Union as their bargaining representative, a position which was in conformity with the established law. This LEADER NEWS CO., INC. 123 is confirmed by Estrow's earlier statements to the employees that the Respondent would have to negotiate with the Union unless both • the employees and the Union consented to direct dealings with the employees. Accordingly we shall dismiss the complaint in its entirety. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein against the Respondent, Leader News Co., Inc., be, and it hereby is, dismissed. Intermediate Report These proceedings involve allegations that Leader News Co., Inc., New York, New York, herein called the Respondent, interfered with, restrained, and coerced its employees in violation of Section S (a) (1) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, and refused to bargain collectively with Office Employes International Union, Local 153, AFL, herein called the Union, in violation of Section S (a) (1) and (5) of the Act. After issuance of a complaint and filing of an answer, a hearing was conducted before me on May 21, 1951, at New York, New York All parties were represented and participated fully in the hearing.' The evidence reveals that (1) the Respondent is engaged in commerce within the meaning of the Act ; 2 (2) Office Employes International Union, Local 153, AFL, the charging party, is a labor organization within the meaning of the Act, and (3) the unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act consists of all office, clerical, and shipping employees of the Respondent employed at its Lexington Avenue plant, exclusive of all supervisors as defined in the Act. There is no dispute concerning these matters. The disputed matters concern (1) certain acts of interference, restraint, and coercion alleged to have been committed by the Respondent; (2) whether or not the Union represented a majority of employees in the appropriate unit on August 24, 1950, and at all times since that date ; and (3) whether or not the Respondent I At the close of the hearing, time was granted to all parties for filing briefs or proposed findings and conclusions. At the request of counsel for the Respondent , the Chief Trial Examiner extended the time for filing briefs to June 21 , 1951 . On June 22 , 1951, counsel for the Respondent sought an additional extension of time. This request was denied by the Chief Trial Examiner on the same day . Thereafter, on June 25, 1951 , a brief was received from the Respondent's counsel. It has not been considered No other party filed a brief. On July 23 , 1951, after notice to all parties and in the absence of objection , an order was issued correcting certain errors in the transcript of record! 2 The Respondent is engaged at New York , New York, in the business of rendering shipping instructions and billing and collection services to publishers in connection with the distribu- tion of various periodicals to wholesale news dealers located throughout the United States and in various foreign countries , and to remitting to said publishers the price of magazines and other related periodicals. During the year 1950, the Respondent received in excess of $50,000 for the services desciibed above from publishers shipping in excess of $25,000 worth of magazines and other related publications to and from States other than the State of New York and foreign countries . The publishers themselves are instrumentalities of interstate commerce . The Respondent concedes the Board 's jurisdiction. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to bargain collectively with the Union in good faith on and after August 28, 1950, after having received the Union' s demand for recognition. Facts In the latter part of August 1950, the Respondent employed 17 nonsupervisory employees. About August 19 or 20, 1950, 4 of them, William Solomon, Jerry Rafaniello, Gene Klein, and David Goldstein, visited the office of the Union and obtained blank membership application cards. On August 24, 12 of the Respond- ent's employees attended a meeting at the office of Ben J. Cohan, the Union's business representative. During the course of the meeting, all 12 employees present signed application cards for membership in the Union, and the cards of 2 other employees were submitted to the Union either that day or shortly there- after.' Solomon was elected shop steward, and Rafaniello assistant shop steward.' Cohan was asked whether the employees should attend any meeting called by representatives of the Respondent and whether they should answer questions at any such meeting. He replied that they should attend such meetings and answer questions, but should not enter into negotiations with the Respondent, as the Union was their bargaining representative.5 On the following day, August 25 (a Friday), the Union sent a registered letter to the Respondent stating that it represented the Respondent's employees and requesting a meeting for the pur- pose of discussing recognition and a collective bargaining agreement. This letter was never answered by the Respondent. On August 28 the Union filed a petition with the Board, seeking certification as the bargaining representative of the Respondent's employees.6 The letter described above was received by the president of the Respondent on Monday, August 28-a fact which immediately became known to all the employees.' He telephoned to Stanley M. Estrow, his son and the attorney for the Respondent. In response to this telephone call, Estrow appeared at the Respond- ent's place of business on the same day 3 and commenced to read the Union's letter in his father's office Before he had finished reading the letter, however, Solomon entered, accompanied by Marilyn Cohen, another employee. They informed Estrow that they had been designated by the employees to talk to him before any steps were taken by the Respondent with regard to the Union's letter. 8 All the cards are dated August 24 There is some conflict as to whether these two cards were turned in during the meeting of August 24 or at some later date. However, I find it unnecessary to resolve this conflict. 4 There is some conflict as to whether or not Klein was also elected an additional assistant shop steward However, I deem it unnecessary to resolve this conflict. 5 The finding with respect to Cohan's answer to this question is based upon the credited, testimony of Cohan, a witness for the General Counsel, who impressed me as an accurate, sincere, and dependable witness. 8 Case No. 2-RC-2656. On September 5, 1950, the Board's Regional Office sent a letter to the Respondent notifying it of the filing of this petition. This was apparently the first knowledge obtained by the Respondent that the Union had filed such a petition. ° The employees realized that the Union would write such a letter, and designated one of their number to watch for it and to notify them when it arrived This plan was carried out, and the employees were thus informed of the letter's receipt immediately upon, its arrival They anticipated that the letter would cause Stanley M. Estrow, the Respond- ent's attorney, to visit the Respondent 's place of business and talk to the employees. As will be seen , events bore out their expectations in this respect. 8 The finding that Estrow appeared on the same day as the letter's receipt is based upon the credited testimony of Rafaniello. Estrow's testimony that he appeared the day following the letter's receipt is deemed inaccurate, as he admittedly appeared on August 28, and the previous day was a Sunday. LEADER NEWS CO., INC. 125 This, however, was not true ; Solomon and Cohen had not been so "designated." s They stated that the employees desired to negotiate directly with management. Estrow answered that he did not understand how he could deal directly with the employees in view of the Union's letter. Solomon and Cohen replied that the employees understood that they could negotiate directly with management10 Estrow thereupon assembled all the Respondent's employees in the Respondent's place of business, and addressed them. This meeting commenced at about 4 p. m. and lasted approximately 2 hours." Estrow mentioned that he had received a letter from the Union demanding recognition, and remarked that he did not understand why the employees wanted a union. Solomon replied that the employees were dissatisfied with the wages and that there were other benefits which they desired, such as sick leave. Estrow stated that he would have to close down the shop if the Union came in, because he could not give the employees the wage increases they wanted.' He asked the employees whether they wanted to deal directly with him, or whether they wanted him to negotiate with the Union." During a brief pause which followed, Solomon called Cohan on the tele- phone and told Cohan that the employees had been addressed by Estrow. Cohan replied that the employees should attend any meeting called by Estrow and answer questions, but should not negotiate with him'" The employees then infotmed Estrow that they wanted to negotiate directly with him. It was ar- ranged that a group of employees would meet with Estrow at a later date. In accordance with this understanding, a meeting was held at lunch time on August 31 at the Respondent's place of business. The Respondent was repre- sented by Estrow and two supervisors. The employees were represented by five employee representatives, each from a different department.'6 No representative 6 Rafaniello, a witness for the General Counsel, testified credibly that he knew nothing about Solomon and Cohen being selected to speak to Estrow. Employee Sarah Marcus, a witness for the Respondent, testified to the same effect. I Employee Myrna Pitt, a witness for the Respondent, testified that Solomon and Cohen were designated by the employees to speak to Estrow when the Union's letter arrived She did not describe how or under what circumstances this "designation" was accomplished. Her testimony in this respect is rejected It appears likely that had such a "designation " taken place, Rafaniello- who was the Union's assistant shop steward-would have known of it. to The findings with respect to the discussion between Estrow and Solomon and Cohen is based upon the uncontradicted testimony of Estrow. Neither Solomon nor Cohen testified , and neither was in the Respondent's employ at the time of the hearing. The Respondent's counsel and counsel for the General Counsel both stated on the record that they had been unable to ascertain Solomon's whereabouts 11 Working hours were from 9 a in. to 5 p. in . Thus, the meeting extended about 1 hour beyond working hours. 12 Testimony was given concerning this meeting on behalf of the General Counsel by Rafaniello, and on behalf of the Respondent by Estrow, Pitt, and Marcus. According to Rafaniello, Estrow stated that "if the Union came in, he would have to close down the shop because he couldn't give us the raises that we wanted ." While Rafaniello admitted that he had not paid attention during Estrow 's entire speech, his testimony in regard to this statement of Estrow was positive , and was not shaken on cross-examination. Estrow, who testified after Rafaniello , did not deny that he made such a statement to the employees. Pitt, in effect, denied that Estrow had made such a statement Although Marcus testified with respect to the meeting in question, she did not mention the statement alleged to have been made by Estrow In view of the fact that Estrow did not deny having made such a statement , I adopt Rafaniello 's testimony that Estrow made such a statement , and reject the contrary testimony of Pitt 13 Estrow testified that he left the room in order to give the employees an opportunity to discuss among themselves what they wanted done . Rafaniello denied that Estrow left the room. In this respect, I credit the testimony of Rafaniello. 1" The finding with respect to the telephone call made, by Solomon to Cohan is based upon the credited testimony of Cohan. 15 These included Solomon, Rafaniello , and Cohen . While there is some slight conflict in the record , I find that the employee representatives were chosen by the employees, and that the Respondent took no part in their choice. I 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union attended. During the course of this meeting, Estrow again stated that he was "very surprised" that the employees had taken "such a rash move" as going to the Union without first consulting him or some other official of the Respondent. He also explained the provisions of the Respondent's pension fund, which had been in effect since 1942. The employee representatives presented their demands with respect to wages and other conditions of employment. Estrow remarked that their demands were "out of line," but informed them that he would investigate the matter and give them the Respondent's answer at a later date. Another meeting was held on the following day, September 1, on the Re- spondent's premises. The Respondent was represented by Estrow and one super- visor ; the employees by three employee representatives 1s Estrow again ex- plained the pension fund. The employees asked for wage increases and 15 days` sick leave Estrow offered them 5 days' sick leave, and a wage increase of 5 per- cent every 6 months tip to 3 years. When the employees voiced dissatisfaction with the proposed wage raise, Estrow offered them, an immediate increase of $3 per week. He suggested that the employees discuss the offer among themselves and advise him of the group's decision." On September 5," before office hours, the employees met and discussed the Re- spondent's offer. No representative of the Union or the Respondent was present. The consensus of opinion was to reject the offer. That same day Estrow inter- viewed the employees in groups.1D However, neither Solomon, Klein, nor Rafaniello were present in any of these groups" Solomon, stating that Estrow wanted to know if everyone was satisfied, commenced to take a poll among the employees but became angry at their evasive answers and requested Rafaniello to take the poll. Rafaniello then asked each employee : "Should we accept Estrow's offer or let the Union negotiate for us?" The result was overwhelmingly against accepting the Respondent's offer 21 Rafaniello reported this result to. Estrow.` Employee Myrna Pitt then asked Estrow what would happen with respect to those employees who wanted to accept the Respondent's offer. Estrow replied that "because of the people who wanted to join the Union, no one would 16 Solomon , Rafaniello , and Klein. 27 The authority of the employee representatives to negotiate was apparently somewhat limited On this subject Rafaniello testified : We were supposed to collect the grievances, the salary increases that everyone wanted, and benefits that we wanted from Mr. Estrow, and we were supposed to present them, to Mr. Estrow We were not to decide anything. We were just to relay the offer. 18 September 2 was a Saturday, September 3 a Sunday, and September 4, Labor Day. 10 According to Estrow's testimony, the employees "wanted to know how the plan, applied to each of them individually," and he discussed it with them, and told them "it was up to them to determine as amongst themselves whether they wanted to accept the plan or not, or whether they wanted to submit a counterproposal " According to the testimony of Marcus, the employees filled out slips containing their individual demands, and submitted these slips to Estrow in groups. It is not clear , however, if Marcus was referring to the group conferences with Estrow on September 5. 20 The finding that these three employees were not included is based upon the undenied and credited testimony of Rafaniello. Estrow, who was present during Rafaniello's testi- mony, and who later himself took the stand, neither denied this fact nor offered any- explanation. 21 According to Rafaniello, the vote was 14 to 4 against the Respondent's offer. As there were only 17 nonsupervisory emploSees eligible to participate in the vote, Rafaniello's figures are not entirely accurate 22 The finding with respect to this poll is based upon the credited and uncontradicted testimony of Rafaniello Although he was followed on the stand by Pitt, Marcus, and Estrow (witnesses for the Respondent), all of whom had been present during his testi- mony, none of them testified regarding this poll. LEADER NEWS CO., INC. get anything." 2' After that, Rafaniello and another employee went to the wash- room. When they returned, they were informed by employee Marilyn Cbhen that all the employees were apparently satisfied with the Respondent's offer. There- after, a committee of employees informed Estrow that the Respondent's offer was satisfactory, and requested that he put the wage increase and sick leave into effect " This was (lone. Later, the Respondent posted on its bulletin board an announcement of the new wage rates and sick leave. - On September 28, 1950, the Union filed the original charges herein, and on October 30, 1950, withdrew its representation petition without prejudice. On the same day, the Union filed the first amended charges herein. Interference, Restraint, and Coercion The complaint alleges and the answer denies that the Respondent from on or about August 28, 1950, has interfered with, restrained, and coerced its employees in the following respects : ( a) Interrogating its employees concerning their union affiliation; (b) threatening its employees with discharge or other reprisals if they joined or assisted the Union; (c) warning its employees to refrain from assisting, becoming members of, or remaining members of, the Union; (d) offer- ing, promising, and granting a wage increase to its employees on or about Sep- tember 12, 1950; (e) offering, promising, and granting sick leave or vacation and other benefits to its employees on or about September 12, 1950; (f) circulat- ing among its employees for their signature a petition repudiating and with- drawing from the Union. At the close of the General Counsel's case, the Respondent moved to dismiss those portions of the complaint designated above as (a), (b), (c), and (f). With the concurrence of the General Counsel, the motion was granted with respect to the sections designated (a) and (f) R5 With respect to the sections desig- nated as (b) and (c), ruling was reserved. This part of the motion is disposed of herein. With respect to the sections designated as (b) and (c), it will be recalled that on August 28, Estrow told the assembled employees that the plant would be closed if the Union came in. Such a threat undoubtedly constitutes inter- ference, restrain , and coercion, violative of Section 8 (a) (1) of the Act." Moreover, Estrow's statement to Pitt that no employee would receive any raise in pay because some had chosen to be represented by the Union clearly indicated that continued adherence to the Union would stand in the way of wage increases. Thus it, too, coerced the employees in violation of their statu- tory rights. By these two statements of Estrow, the Respondent violated Sec- tion 8 (a) (1) of the Act. Accordingly, the Respondent's motion to dismiss those portions of the complaint designated as (b) and (c) is denied." "The finding with respect to this conversation between Pitt and Estrow is based upon the uncontradicted and credited testimony of Rafamello . Although both Pitt and Estrow followed Rafamello on the stand, and both were present during Rafanlello 's testimony, neither testified with regard to this particular conversation. ='Estrow testified that the committee consisted of Solomon , Cohen, and Rafaniello. Rafaniello testified that "lie didn ' t has a anything to do " with communicating to Estrow that the employees would accept the Respondent 's offer. In this respect, I credit Rafani- ello's testimony " With respect to the section designated ( f), Rafaniello testified that, at the behest of Solomon , he signed a certain document . However, the document was not introduced into evidence , and it was not shown that Solomon , when he requested Rafamello to sign, was acting on behalf of the Respondent. 26 A Kravitz & Conipiany, 89 NLRB 1415 ; and Queen City Valves, Inc , 93 NLRB 1576 27 Those portions of the complaint designated as (d) and (e) will be discussed below. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union's Majority Status The complaint alleges and the answer denies that on August 24, 1950, a majority of the employees in the unit described above designated the Union as their bargaining agent, and that at all times since that date the Union has been their bargaining representative by virtue of Section 9 (a) of the Act. As previously related, at least 12 of the Respondent's 17 nonsupervisory em- ployees had signed union application cards on August 24. These cards were worded as follows : OFFICE EMPLOYES' INTERNATIONAL UNION, LOCAL 153 American Federation of Labor 265 West 14th Street, New York 11, N. Y. WA-9-3528-29-30 I hereby enroll and designate Office Employes' International Union Local 153 to represent me in all negotiations for collective bargaining and better working conditions. The Respondent sought to show that, prior to the execution of these cards, Cohan had verbally indicated to several of the employees that, by signing the card, they neither became members of the Union nor designated the Union as their collective bargaining agent, but simply authorized the Union to write a letter to the Respondent on their behalf.28 This testimony, however, was rejected as an attempt to vary the terms of a written instrument by parole evidence 21 The Respondent also maintains that the employees merely joined the Union in order to use it as a means of compelling the Respondent to deal directly with them. Whatever the motive of the employees may have been, however, it is clear that a majority of them did, in fact, designate the Union as their bar- gaining agent on August 24, 1950. I therefore find that, on that date, the Union represented a majority of the employees in the bargaining unit described above. Did the employees thereafter revoke their designation of the Union? So far as the record shows, none of them did so in any writing addressed to the Union or to the Respondent. It may perhaps be argued that, on August 28, by verbally informing Estrow that they were willing to deal directly with the Respondent, the employees in effect revoked their designation of the Union. But further analysis of the conditions under which this step was taken lead to the conclu- sion that such was not the case. The decision that the employees wanted to deal directly with Estrow was communicated to Estrow on the Respondent's premises, at a meeting called by Estrow, in response to a question put to the em- ployees by Estrow, and in his presence. In such an atmosphere, it cannot be said that the decision represented the free and untrammeled expression of the 28 This evidence was apparently introduced to substantiate the Respondent 's third affirmative defense, contained in its answer , which alleges that "a majority of the em- ployees ... had been told . . . that the execution of membership cards by them was a tentative act which would not become effective until after the employees had terminated negotiations with the Respondent and that there would be no action taken by the Union in behalf of such employees." 29 It has been held that an employee's thoughts as to what a union card meant cannot negative the overt action of having signed a card designating a union as bargaining agent, Joy Silk Mills v. N. L. R. B, 185 F. 2d 732, 743 (C. A., D. C.), certiorari denied, 341 U. S. 914, and that testimony of employees ' subjective intention in signing union cards cannot be accepted to change the legal effect of their overt acts , The Nubone Company, Inc., 62 NLRB 322, 344, enforced 155 F. 2d 523 (C. A. 3). LEADER NEWS CO., INC. 129 employees' choice.30 Moreover, it is significant that Estrow, on August 28 and thereafter, interfered with, restrained, and coerced the employees in the manner described above. It is reasonable to infer, and I find, that the Union's purported loss of majority, if any, is directly attributable to Estrow's illegal conduct. The Respondent cannot, as justification for its refusal to bargain with the Union, set up the defection of union members which it had induced by unfair labor practices, even though the result was that the Union no longer had the support of a majority 81 The action of the employees on August 28, in effect repudiating the Union, was ineffective because it was not voluntary. Moreover, by their overwhelming vote on September 5 to conduct negotiations through the Union, the employees reaffirmed their previous designation of the Union as their bar- gaining agent. I therefore find that at all times since August 24, 1950, the Union has been, and still is, the exclusive representative for the purposes of collective bargaining of all the employees in the unit described above, by virtue of Section 9 (a) of the Act. The Respondent's Refusal to Bargain The Union's letter of August 25 to the Respondent was clearly an effective demand for recognition. This letter was ignored by the Respondent. As the Union in fact represented a majority of the employees at the time the letter was received, it was an illegal refusal to bargain for the Respondent to ignore the Union's letter, unless it had a good and sufficient reason for so doing. In its answer, the Respondent alleges as a first affirmative defense that after receipt of the Union's letter the Respondent "was informed by a committee of its em- ployees that they desired to negotiate directly with the employer, to disregard the notice from the Union, that they had notified the Union, and that said Union had advised them that they had no objection thereto." While it is not entirely clear from either the pleadings or the oral argument, I assume that the Respond- ent attempts to justify its failure to reply to the Union's letter on the ground that the conduct of the employees on and after August 28 raised a reasonable doubt in the mind of the Respondent that the Union represented a majority of the employees. If such, indeed, is the Respondent's defense, I am of the opinion that it lacks merit. The Respondent maintains that it was prepared to negotiate with the Union if the employees so desired. This, however, is not borne out by the record. When Solomon and Cohen advised Estrow that the employees wanted to deal di- rectly with him, and falsely stated that they made this statement on the authority of all the employees, Estrow was apparently not entirely convinced, for in order to dissipate any lingering doubt he may have had, he assembled the em- ployees and proceeded to inquire of them with regard to their desires in the matter. This does not smack of good-faith doubt of the Union's majority. Had Estrow honestly entertained a doubt as to the Union's majority, he could have asked the Union to submit some proof of its majority, or requested the Union to file a representation petition, or himself have filed such a petition. Instead, however, he assembled the employees and questioned them directly: This he had no right to do. Estrow knew, or should have realized, that the employees' expression of opinion voiced at a meeting called by the Respondent's attorney on the Respondent's premises, and held in the presence of the Respondent's attorney, could not result in a free and uncoerced expression of opinion. His conduct in this respect therefore does not indicate good faith. 80 While I consider Estrow's presence as a factor, I would not have reached a different conclusion had I found that he left the room while the employees were making their decision. 3' Medo Photo Supply Corporation v. N. L. R. B, 321 U. S. 678, 687 ; and Franks Bros. Company v N L R B, 321 U 8 702. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, Estrow's lack of good faith is shown by the fact that he engaged in unfair labor practices after the receipt of the Union 's claim for recognition" This consisted of his threat to the assembled employees that he would close down the pilant if the Union came in, and his statement to Pitt that since some employees had chosen to be represented by the Union , no employee would get any raise. Finally, Estrow's conduct on September 5 in speaking to the employees in separate groups, and his unexplained failure to include Solomon, Klein, and Rafaniello-the three most active union adherents-in any of these groups is, at the least, highly suspicious . But even had Estrow still entertained any good- faith doubt -as to the Union 's majority on September 5, which I do not find to be the case , such a doubt would have been seriously undermined when Ttafaniello informed him that the employees had voted overwhelmingly to conduct the negotiations through the Union. It is therefore clear, and I find, -that at no time on or after August 28 , 1950, did the Respondent entertain a good-faith doubt of the Union 's majority. It follows that the Respondent's refusal to bargain with the Union on August 28, 1950, and thereafter, was violative of Section 8 (a) (1) and ( 5) of the Act. The Respondent further argues that it relied upon the statements made to it by its own employees, which had been repeated from time to time, to the effect that the Union was aware of these negotiations , and that they were being conducted with the Union's blessing and consent . In short, the Respondent maintains that it was led to believe, by the employees ' statements , that the Union had no objection to the direct negotiations . In this connection , Estrow testified that on August 28, the employees stated that they had called the Union and had advised the Union that they were going to negotiate directly with the Respondent , and that the Union had expressed its approval . He further testified that, at the negotiation meeting of September 1, he asked Solomon if the Union had changed its stand on the matter , and was told by Solomon that the Union was kept informed of each step being taken , and was satisfied that the employees should deal directly with the Respondent . In effect, this defense is only another facet of the defense previously discussed , namely, that the Respondent in good faith doubted the Union's majority status. But as found above, the Respondent was not acting in good faith when it failed to respond to the Union 's demand that it be granted bargaining rights. The Union's Knowledge of the Direct Negotiations As the second affirmative defense contained in its answer , the Respondent alleges that "the acts of the Union in encouraging and approving of the employees in having direct negotiations with Respondent and without objection on the part of said Union , constituted entrapment in an effort to provide the basis for the present complaint . That by said acts and actions on the part of said Union , the bad faith on the part of said Union is obvious ." In short, the Respondent maintains that the Union was fully aware of the fact that the Respondent was dealing directly with the employees , but took no steps to notify the Respondent or the employees that it objected to this course of action. Pitt testified that after either the first or the second meeting between Estrow and the employees , she and about four other employees of the Respondent spoke to Cohan. According to Pitt, the employees told Cohan that they had had a meeting with Estrow, during which Estrow had expressed surprise and had stated that he would like to negotiate directly with the employees "to put 32 Compare Star Beef Company , 92 NLRB 1018 , and Joy Silk Mills v. N. L. R B , supra, at page 741. LEADER NEWS CO., INC. 131 an end to it.t' Pitt further testified that Cohan replied that "it was perfectly all right" to talk to Estrow, and to negotiate with him. Cohan, however, denied that he had ever been told by any of the employees that they desired to negotiate directly with the Respondent. He testified that sometime between August 27 and September 2, he was informed by Solomon in a telephone conversation that Estrow had made certain offers to the employees with respect to wages and other working conditions. Moreover, Cohan did not deny that he knew that the Respondent was negotiating directly with the employees. I reject Pitt's version of the discussion between Cohan and the five employees, and credit Cohan's testimony that he was never told by any employee that they preferred to deal directly with the Respondent. However, I am convinced and find that the Union was aware that direct negotiations were being conducted, but never indicated to the employees that it approved of this procedure (on the contrary Cohan told Solomon not to negotiate directly with Estrow), and never contacted the Respondent with respect thereto after learning what had occurred. Does this fact help the Respondent? I do not regard as crucial the fact that the Union failed to protest these direct negotiations by contacting the Respondent. Even though the Union knew that the Respondent was committing unfair labor practices, it does not follow that it was under any duty to warn the Respondent of the consequences of its conduct. Nor may the Union's silence be regarded as a withdrawal of its claim for recognition. A union's claim for recognition cannot be deemed to have been withdrawn merely because it is not constantly reiterated 33 And the Union herein never revoked its letter of August 25, or otherwise took any affirmative action indicating a disclaimer of its interest in representing the employees. The Union's withdrawal of its representation petition on October 30, 1950, is immaterial to the issues herein, because it occurred after the commission of the Respondent's unfair labor practices. Moreover. it is quite likely that the petition was merely withdrawn because of the filing of the charges herein, especially since, by filing the charges, the Union seeks to compel the Respondent to bargain with it. I therefore find that the Union has never withdrawn its representation claim. The Wage Increase As previously noted, the complaint alleges and the answer denies that the Re- spondent violated the Act by offering and granting a wage increase and sick leave or vacation benefits to its employees on or about September 12, 1950" The grant- ing of a wage increase during a union's organizational campaign is not per se violative of the Act. As the Board has said, "What is unlawful under the Act is the employer's granting or announcing such benefits (although previously deter- mined upon bona fide) for the purpose of causing the employees to accept or reject a representative for collective bargaining." 35 (Emphasis in original.) It is significant that the wage increase and sick leave here in question were not offered to the employees until after the Respondent was aware of the representation claim of the Union. In view of this fact, and in view of other acts of inter- ference, restraint, and coercion committed by the Respondent, as well as its re- fusal to bargain with the Union, as found above, I am convinced, and find, that the wage increase and sick leave were granted to the employees in September 1950 33 A union's unexplained failure to answer an employer's invitation to bargain or its unexplained failure'to appear at a representation hearing, have been held not to constitute a disclaimer of its interest in representing the employees . Lee-Mark Metal Mfg Co , 85 NLRB 1299, footnote 4; and Fifteenth Annual Report of the National Labor Relations Board (1950), p 35. 34 These are the allegations designated as (d) and ( e) above. 35 Hudson Hosiery Company, 72 NLRB 1434, 1437. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of influencing them to reject the Union as their bargaining repre- sentative. As such, it constituted a violation of Section 8 (a) (1) of the Act" Moreover, as the Respondent did not consult the Union before granting these benefits to its employees but instituted them unilaterally, this conduct constitutes an additional refusal to bargain with the Union , within the meaning of Section 8 (a) (5) of the Act.n The record , however, establishes that no increased vacation benefits were granted to the employees , except as an indirect consequence of the newly established sick leave." Accordingly, I find that the Respondent did not violate the Act by granting increased vacation benefits to its employees. CONCLUSIONS OF LAW 1. Leader News Co., Inc ., is engaged in commerce within the meaning of Section 2 (6) and ( 7) of the Act. 2. Office Employes ' International Union, Local 153, AFL , is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 3. All office, clerical, and shipping employees of the Respondent employed at its Lexington Avenue plant, exclusive of all 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. 4. Office Employes' International Union, Local 153, AFL, was on August 24, 1950, and at all times thereafter has been, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargain. ing within the meaning of Section 9 (a) of the Act. 5. By refusing on August 28, 1950, and at all times thereafter , to bargain col- lectively with the Office Employes' International Union, Local 153 , AFL, as the exclusive representative of alt its employees in the aforesaid appropriate unit, and by unilaterally instituting wage increases and sick leave in September 1950, 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 above conduct, by offering and granting a wage increase and sick leave to its employees in September 1950, in order to induce them to reject the above- named labor organization as their bargaining agent, and by threatening its em- ployees with economic reprisals if they joined , assisted, or remained members of the above-named labor organization , thus interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and are unfair labor practices affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. 8. The Respondent has not violated the Act by granting increased vacation benefits to its employees. THE REMEDY Having found that the Respondent has engaged in certain acts of interference, restraint, and coercion of its employees , it will be recommended that it cease and desist therefrom. 36 Compare Pacific Plastic d Mfg Co , Inc, 68 NLRB 52; Wire Rope Corporation of Amer- ica, Inc, 62 NLRB 380 , 381-2; Federal-Mogul Corporation, Federal-Mogul Service Division, 76 NLRB 17 ; and Joy Silk Mills v. N L . R. B, supra. at page 739. 87 May Department Stores Company v. N. L R B, 326 U S 376 , 385 ; N. L R. B v. IV, snona Textile Mills, Inc, 160 F 2d 201, 209 ( C. A 8) ; Eva-Ravi Dress Manufacturing Company, Inc, et al , 88 NLRB 361 , 362, and Motorola, Inc. 94 NLRB 1163 38 If not used , the sick leave was to be added to the employee 's vacation, LEADER NEWS CO., INC. 133; Having found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit described above, it will be recommended that it cease and desist therefrom, and -that, upon request, it bargain collectively with the Union, and if an agreement is reached embody such understanding in a signed agreement. It will, further be- .recommended that the Respondent refrain from negotiating directly with its. employees so long as any labor organization is their bargaining representative by virtue of Section 9 (a) of the Act. In my opinion, the Respondent's conduct discloses a fixed purpose to defeat- self-organization and its objectives. Because of the Respondent's unlawful con- duct and its underlying purpose, I am convinced that the unfair labor practices found are persuasively related to other unfair labor practices proscribed by the, Act, and that the danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past. The preventive pur- pose of the Act will be thwarted unless the recommendations are coextensive with, the threat. In order, therefore, to make effective the interdependent guarantees. of Section 7, to prevent a recurrence of unfair labor practices, and to minimize strife which burdens and obstructs commerce, and thus to effectuate the policies. of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act 39 Having found that the Respondent has not violated the Act by granting- in- creased vacation benefits to its employees, it will be recommended that the; complaint be dismissed in this respect. [Recommendations omitted from publication in this volume.], Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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: WE WILL NOT threaten our employees with economic reprisals if they join, remain members of, or assist OFFICE EMPLOYES INTERNATIONAL UNION,, LOCAL 153, AFL, or any other labor organization, or offer or grant our em- ployees wage increases, sick leave, or any other economic benefit, in order to induce them to refrain from joining, remaining members of, or assisting the above-named labor organization, or any other labor organization. WE WILL NOT negotiate directly with our employees with respect to rates of pay, hours of employment, and other conditions of employment, so long as the above-named labor organization, or any other labor organization, is the bargaining representative of our employees by virtue of Section 9 (a), of the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our- employees in the exercise of their right to self-organization, to form, join,, or assist OFFICE EMPLOYES INTERNATIONAL UNION, LOCAL 153, AFL, or any- other labor organization, to bargain collectively through representatives of their own choosing, and to engage in 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 National Labor. Relations Act. 'O N. L R B v Dxpi ess Publishing Co , 312 U. S 426. 998666-vol 98-53-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL bargain collectively , upon request, with OFFICE Eillpx,oYEs INTER- NATIONAL UNION, LOCAL 153, AFL, as the exclusive representative of all our employees in the bargaining unit described below with respect to grievances, labor disputes, rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached , embody such understand- ing in a signed agreement. The bargaining unit is : All office , clerical, and shipping employees employed at our Lexington Avenue plant, excluding all supervisors as defined in the National Labor Relations Act. LEADER NEWS CO., 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. GENERAL ELECTRIC COMPANY, OPERATING DIVISION, LAMP DEPARTMENT and LOCAL 707, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, PETITIONER. Case No. 8-RC-1378. February 15, 195 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A. Fleming, hearing 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 is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. United Electrical, Radio, and Machine Workers of America, (UE), Local 707, herein called the Intervenor, contends that its ex- isting contract with the Employer constitutes a bar to this proceeding. The Petitioner contends that a schism has occurred within the ranks of the Intervenor affecting the bargaining unit in question, which removes the contract as a bar to a present determination of represent- atives. The Employer takes a neutral position. In May 1950, pursuant to its Decision and Direction of Elections,' the Board conducted elections, with both the Petitioner and the In- tervenor appearing on the ballot, inter alia, among the employees of the Employer in 23 separate bargaining units found appropriate ' General Electric Connpany, 89 NLRB 726. 98 NLRB No. 25.