Ephraim Haspel

EPHRAIM HASPEL 37 fore, that the picketing is tantamount to a present demand for rec- ognition,' which renders ineffectual the Union's disclaimer of interest. 4. The following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production employees at the Employer's Modesto, California, plant, excluding office clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] $ See Petrze's An Operating Division of Red Robin Stores , Inc, 108 NLRB 1318. Although Member Peterson dissented therein, he deems himself bound by the decision of the majority in that case. EPHRAIM HASPEL, AN INDIVIDUAL DOING BUSINESS AS EPHRAIM HASPEL and BONNAZ AND HAND EMBROIDERERS, TUCKERS, STITCHERS AND PLEATERS UNION, LOCAL 66, INTERNATIONAL LADIES GARMENT WORKERS UNION, AFL. Case No. t-CA-3091. July 8, 195.E Decision and Order On December 2, 1953, Trial Examiner Henry S. Sahm issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Gen- eral Counsel and Local 66 filed exceptions to the Intermediate Report and supporting briefs. Local 66 and the Respondent also requested oral argument. That request is hereby denied because the record, including the exceptions and briefs, in our opinion, adequately pre- sent the issues and the position of the parties. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found that the Respondent had not violated Section 8 (a) (1) or (2) of the Act. The General Counsel and the Union except to these findings. We find merit in these exceptions. The complaint alleged, inter alia, that the Respondent had violated Section 8 (a) (1) and (2) of the Act by interfering with the forma- tion of E. Haspel Shop Union, hereinafter called the Shop Union, and 109 NLRB No. 8. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by dominating and contributing support thereto. With regard to these allegations, the record shows, and we find, as follows: The Respondent performs certain finishing operations on garments supplied to him by manufacturers of ladies' wear. Those manufac- turers have collective-bargaining contracts with the International Ladies Garment Workers Union or its various locals which preclude the manufactiu•ecs from furnishing work to nonunion shops. Prior to the events to be related hereinafter, the Respondent's employees were not unionized. On March 19, 1953, the Respondent was approached in his shop by a representative of Local 66, who asked him to sign a contract with that Union. The Respondent declined, asserting that none of his employees was a member of Local 66. Immediately thereafter, the Respondent informed his employees of the foregoing overture and asked them whether he should sign a contract with Local 66. All the employees answered in the negative, stating that they did not want to join Local 66. The Respondent then told his foreman, Argento (whom, like the Trial Examiner, we find to be a supervisor), that be- cause of the aforementioned contracts between Respondent's customers and ILGWU, it was necessary for Respondent to have a union in his shop, and Respondent asked Argento to-explain this to the employees. On March 24, Argento and the Respondent approached the employees in the shop during their lunch hour and Argento told them about Local 66's overtures to the Respondent and said, "it is either [Local 66] or a shop union," adding, "It is up to you fellows to decide which ones you want." The Respondent thereupon left, but Argento re- manied while the employees held a meeting at which they decided to form the E. Haspel Shop Union, elected officers, and prescribed an initiation fee of $4 and weekly dues of 25¢. The group instructed their chairman, Malara, to seek recognition from the Respondent. On that day or the next Malara told the Respondent that the employees "wanted . . if possible . . . to have our own shop union . . . if it is all right with him." 1 Malara then showed the Respondent a min- ute book listing those employees who were members of the Shop Union and asked him if he would recognize the Shop Union and orally agree to continue the existing terms of employment. The Respondent assented. On March 27, the Shop Union held a second meeting on company premises, but after working hours. None but members attended. Various fringe beliefits-coffee hours, rest periods, etc.-were dis- cussed. Either at one of these meetings or during the next few weeks, the employees discussed proposing to Respondent a new method of computing vacation pay and the Christmas bonus. Finally, the fol- '^Qiioted from âIaiara's uncontradicted testimony. EPHRAIM HASPEL 39 lowing May or June, representatives of the Shop Union proposed to the Respondent that, instead of measuring the amount of these benefits by 2 weeks' pay, they be based on 4 percent of each employee's .annual earnings . The Respondent agreed to this change. The Shop Union further requested that the Respondent deposit quarterly with that union 4 percent of the quarterly payroll, to be ultimately dis- tributed by the Shop Union as vacation pay and the Christmas bonus. The Respondent agreed to do so, but only if the Shop Union was certi- fied by this Board. Vacation benefits for the summer of 1953 were in fact computed on the new basis of 4 percent of each employee's annual earnings, and while some employees received less, others received more, than they would have under the old plan. The net gain for all 15 employees was $10. On August 24, at the third meeting of the Shop Union, held in the shop after work, the members for the first time adopted a constitution and bylaws. These had been prepared by an attorney, whose fee was paid out of the Shop Union's funds. However, several visits to this attorney by Chairman Malara and another officer of the Shop Union were made on company time and without loss of pay. While the Respondent did not personally know of these visits , his supervisor, Argento, testified, and we find, that some of these visits were made with Argento's approval. We do not pass upon the question whether by the foregoing conduct the Respondent interfered with the formation of the Shop Union, as we find that the Respondent , in any event, violated Section 8 (a) (2) and (1) of the Act in that he contributed financial and other support .to the Shop Union. This unlawful support consisted in making avail- able to the Shop Union the use of his premises for union meetings, raying officers of the Shop Union for time spent in consulting their legal advisor, permitting notices of Shop Union meetings to be posted ,on his bulletin board, and granting prompt recognition to the Shoo Union as the exclusive representative of his employees . While it is -true that, as found by the Trial Examiner, at the time that the Shop Union was thus recognized a majority of the employees had expressed their preference for representation by the Shop Union rather than Local 66, this was not a proper basis for recognizing the Shop Union as the true choice of the majority of the employees. It is incompat- ible with true freedom of choice to limit employees to a selection between two unions, both suggested by the employer , foreclosing any expression of preference for other unions or for no union at all. Moreover, the fact that in this case the selection was made in the presence of a supervisor was not conducive to a free and untrammeled expression of the employees' desire. Accordingly, we find, contrary to the Trial Examiner, that the fact that the majority of the em- 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees had chosen the Shop Union under such circumstances, which Were well known to the Respondent, does not excuse the Respondent's precipitate recognition of the Shop Union. However, like the Trial Examiner, we find that the allegation in the complaint of domination of the Shop Union by the Respondent has not been established by the preponderance of the evidence. Apart from Argento's participation in the first meeting of the Shop Union, no representatives of management took any part in the activities of the Shop Union or attempted to influence its policies. Accordingly, we will dismiss that allegation of the complaint. TIIE REMEDY Having found that the Respondent has violated Section 8 (a) (1) and (2) of the Act, we will order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent contributed financial and other support to the Shop Union, we will order that the Respondent with- draw and withhold all recognition from the Shop Union as the bar- gaining representative of any of Respondent's employees, until and unless the Shop Union has been certified by the Board as such representative.2 CONCLUSTONS OF LAW In lieu of the conclusions of law set forth in the Intermediate Re- port, the Board, upon the basis of the foregoing facts and the entire record, adopts the following: 1. The Respondent, Ephraim Haspel, an individual doing business as Ephraim Haspel is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The E. Haspel Shop Union and Bonnaz and Hand Embroiderers, Tuckers, Stitchers and Pleaters Union, Local 66, International Ladies Garment Workers Union, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 3. By contributing financial and other:support to E. Haspel Shop Union, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1) and (2) of the Act_ 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 2 Member Peterson would order the Respondent to disestablish the Shop Union, being of the view that the Respondent's participation in the formation of that organization was sufficient to warrant that action. EPHRAIM HASPEL 41 Order Upon the basis of the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ephraim Haspel, his agents, successors, and assigns, shall : 1. Cease and desist from : (a) Recognizing E. Haspel Shop Union as the representative of any of his employees for the purpose of dealing with them concerning grievances, labor disputes, wages, hours of work, or other conditions of employment, unless and until said organization shall have been certified by the Board. (b) Entering into, renewing, or giving effect to any contract or understanding with E. Haspel Shop Union affecting his employees unless and until it shall have been certified by the Board. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from E. Haspel Shop Union as the representative of any of his employees for the purpose of dealing with them concerning grievances, labor disputes, wages, hours of work, or other conditions of employment, unless and until said organization shall have been certified by the Board. (b) Post at Respondent's place of business copies of the notice at- tached hereto and marked "Appendix A." 3 Copies of such notices, to be furnished by the Regional Director for the Second Region, shall, after being duly signed, be posted by the Respondent immediately upon receipt thereof, and be maintained by him for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to his employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region, in writ- ing, within ten (10) days from the date of this Order, what steps he has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, be, and it hereby is, dis- missed insofar as it alleges violations of the Act other than those found above. MEMBER MURDOCK took no part in the consideration of the above Decision and Order. 8In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to it Deciee of the United States Court of Appeals, Enforcing an Order" 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A Nu'ricL To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, I hereby notify my employees that : 1 WILL NOT enter into, renew, or give effect to any contract or understanding with E. Haspel Shop Union unless and until it shall have been certified by the National Labor Relations Board. I WILL NOT contribute financial or other support to E. Haspel Shop Union or any other labor organization. I WILL withdraw and withhold all recognition from E. Haspel Shop Union as the representative of my employees for the purpose of dealing with them concerning grievances, labor disputes, wages, hours, and other conditions of employment, unless and until said organization shall have been certified as such repre- sentative by the National Labor Relations Board. EPHRAIM HASPEL, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed April 21, 1953, by the Bonnaz and Hand Embroiderers, Tuck- ers, Stitchers and Pleaters Union, Local 66, International Ladies Garment Workers Union, AFL, herein called the, Charging Union, against Ephraim Haspel, an indi- vidual doing business as Ephraim Haspel, herein called the Respondent, the General Counsel for the National Labor Relations Board issued a complaint on June 23, 1953. The complaint alleged the commission of unfair labor practices by the Re- spondent within the meaning of Section 8 (a) (1) and (2) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 135, herein called the Act. With respect to the unfair labor practices, the complaint, as amended, alleges in substance that the Respondent had questioned his employees with regard to their union activities and promised them benefits on condition that they would assist, join, and recognize the E. Haspel Shop Union, herein called the Shop Union, as their exclusive bargaining agent. In addition, the complaint alleges that the Respondent sponsored, promoted, assisted, dominated, and contributed to the support of and interfered with the administration of the Shop Union. Copies of the charge, complaint, and notice of hearing were served upon the parties.' Respondent filed his answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held in New York, New York, from September 28 to October 1, 1953, inclusive, before Henry S Salim, the undersigned Trial Examiner. All parties were represented by counsel and were afforded full opportunity to participate in the hear- i Although the Shop Union was not named as a party in the caption of the formal papers in this case, it was in all material respects treated as a party to the proceeding. It was served with copies of the charge, complaint, notice of hearing, and other formal documents. EPHRAIM HASPEL 43 ing and to introduce relevant evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings of fact and con- clusions of law. Only the Respondent filed a brief. During the course of the hear- ing, ruling was reserved on the admission of General Counsel's Exhibit No. 5. It is hereby admitted in evidence. Various motions also were made by the Respondent to dismiss the complaint. These motions are disposed of in the following findings of fact and conclusions of law. Upon the entire record in the case, and from his observation of the demeanor of the witnesses, the Trial Examiner makes the following. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent Haspel, an individual doing business as Ephraim Haspel, whose shop is located in New York, New York, is engaged in tucking, pleating, and stitching on women's blouses, sportswear, dresses, and related products. He performs these serv- ices on a contract basis for manufacturers of such garments. During the year end- ing June 1, 1953, in the course of his business operations, Respondent rendered serv- ices valued at an amount in excess of $75,000. Of these services performed during this period, approximately $4,000 worth were rendered to companies located in States of the United States other than the State of New York. All of the remaining serv- ices rendered by Respondent were performed for companies which ship more than $25,000 worth of finished products from New York State to States of the United States other than New York. By reason of the foregoing facts, and Respondent so admits, it is found that the Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE ORGANIZATIONS INVOLVED The E Haspel Shop Union and Bonnaz and Hand Embroiderers, Tuckers, Stitchers and Pleaters Union, Local 66, International Ladies Garment Workers Union, AFL, are labor organizations admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES 2 A. Introduction Shortly after the Charging Union evinced an interest in unionizing Respondent's shop, the employees formed an independent shop union. The General Counsel al- leges the Respondent violated Section 8 (a) (1) and (2) of the Act by suggesting to his employees that they form their own shop union and by promising them certain benefits provided they joined the Shop Union and not the Charging Union, Local 66.3 B. Summary of events 4 The Respondent, Haspel, occupies space in a building located in New York City. The number of his employees vary but they averaged 15 during the period of time material in this case. Respondent performs certain specialized services on a con- tract-fee basis for manufacturers of women's apparel. These manufacturers, who retain title to the material, send him their garments for tucking, pleating, and stitch- ing. After these services are performed on these garments, they are returned to the manufacturer by the Respondent. These manufacturers for whom Respondent performs these services have contracts with the international Lacl•°s Garment Work- ers Union, the International affiliate of the Charging Union herein, which provide that the manufacturers cannot subcontract any of their work to nonunion shops. Respondent's employees were not union-affiliated Haspel originally entered this line of business in September 1949. In 1950 or 1951, when Haspel's shop occupied 2 rooms in another building than where he now rents, a representative of Local 66 discussed with him his signing a union contract. When Haspel related this incident to his employees, they told him that they were not 9 The testimony concerning some of the incidents involved in this proceeding Is ambig- uous and incomplete as to specific details so that the findings of fact made herein result from the Trial Examiner's attempt to reconcile the evidence and determine what occurred S Section 8 (a) (2) prohibits an employer to dominate or interfere with the formation or administration of a union or to contribute support, financial or otherwise to it. 4 There is no dispute over the basic facts The controversy is mainly as to the legal conclusions to be drawn from the facts. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested in joining a union. Haspel had no further contact with the Union until March 19, 1953, when Leo Di Peri, business agent of the Union, came to his shop and asked him to "Come down [to the Union's office] and sign a union contract -with the Union." 5 Haspel replied that inasmuch as none of his employees were members of Local 66, he did not think he should sign a contract with the Union. During this conversation, Di Peri, and this is uncontradicted, threatened Haspel, warning him if he did not sign a union contract that his shop would be picketed. his customers interfered with, and his shop visited by "raiding committees " Haspel also testified that Di Pen threatened him and his employees with bodily harm. A week or so later Haspel met a second time with Di Peri at a restaurant to discuss the .delay in signing the union contract at which time Di Peri told Haspel "to sign up or else." Immediately after the first conversation with Di Peri on March 19, and after Di Peri had left the premises, Haspel 'walked to the front of the shop, faced his 15 employees who were working at or in the vicinity of the 8 machines which he has in his shop and said, "Boys, Local 66 was up llere-a representative was up here and wants me to sign a union contract with them. What do you want me to do?" "The boys as a group," Haspel testified, "shouted `No,' they told me they didn't -want to belong to Local 66." Haspel then spoke to his foreman, Argento 6 reminding him that there must be a union in his shop because the manufacturers upon whom his shop was dependent for work had contracts with the International Ladies Garment Workers Union, the 'Charging Union's international affiliate, requiring them to do business only with -union shops. Haspel asked Argento to explain the situation to the employees. Argento delivered Haspel's message to the employees telling them there must be a union in the shop but he emphasized that whether they decided to join Local 66 -or any other union was entirely within their discretion The employees-after con- -siderable discussion decided to form the E. Haspel Shop Union. On March 29, the employees held their first formal union meeting in the shop during their lunch hour. They elected Ignatius Malara, chairman, and Josephine Carter, secretary-treasurer, of the Shop Union and voted an initiation fee of $4 and weekly dues of 25 cents. The members instructed their chairman, Malara, to advise Respondent that they had formed a union and desired to be recognized as the collective-bargaining agent of his employees Malara did so and when Haspel was advised by Malara of his authority to nego- tiate an agreement for the Shop Union, Haspel inquired as to how many of the em- ployees belonged to the Union. Malara produced a list showing all of the employees to be members of the Shop Union whereupon Haspel agreed to recognize the Shop Union.7 Malara then discussed with Haspel working conditions in the shop and it was agreed orally that the same hours and wages and the existing arrangement with re- spect to vacation pay and the Christmas bonus should continue. The members of the Shop Union at their next meeting , which was held in the shop after working hours, voted to ask Haspel to change the method by which the employees' vacation pay and Christmas bonus was computed. Malara discussed this matter with Haspel who agreed to change the method of computation but he would not agree to give these funds to the Shop Union directly for distribution by it to the members until such time as the Shop Union was certified by the National Labor Relations Board as the employees' bargaining representative. After the charge in this case was served on the parties, Malara was instructed by the Shop Union members to consult with an attorney in order to ascertain whether their action in organizing the Shop Union was legal Malara was advised by an attorney that they could do so which he reported to the Shop Union members. The attorney also drafted a constitution and by laws 8 which was adopted by the Shop Union members at their August 24 meeting held in the shop after working hours. 6 There is no evidence that any of Respondent's employees had been solicited to join the Charging Union One witness testified she had never been approached by the Charging Union. O The General Counsel contends and Respondent denies that Argento is a supervisor. Although such a finding is unnecessary in order to resolve the salient issues in this pro- ceeding , it is found , upon the basis of the entire record, that Argento is a supervisor within the meaning of the Act. T Respondent also filed a petition on March 31 , for certification of a collective-bargaining representative (Case No 2-RM-487). a The attorney, Joseph F. Minutolo, received a fee of $76 for these services which was paid from the Shop Union's funds. EPHRAIM F1ASPEL 45 Before discussing the legal conclusions to be reached upon the above findings of -fact, reference should be made to several incidents. These incidents are not con- sidered in making findings of fact nor are they made the basis for resolving any of the legal issues herein involved but are mentioned merely as background to clarify and explain the statements which were made by Respondent and which are discussed in more detail, infra. After the Respondent was threatened by Di Peri, he instituted an action on March 30, 1953, in the U. S. District Court for the Southern District of New York against the Charging Union. The petition which asked for a temporary injunction averred that the Union had threatened injury to the Respondent, his plant, and employees. The court dismissed the action and an appeal is now pending before the United States court of appeals Respondent then filed on March 31, 1953, with the Re- gional Office of the, Board, a petition for certification of a collective-bargaining representative (Case No. 2-RM-487) which was dismissed by the Regional Direc- tor. On April 6, 1953, he filed a charge against the Union based upon the con- versations he had had with the union representative, Di Peri (Case No. 2-CC-248). .The Shop Union also filed a petition on August 3, 1953, requesting that it be cer- tified as the representative of the Respondent's employees C. Contentions and concluding findings Based upon these facts the General Counsel contends that Respondent Haspel initiated the formation of the Shop Union when he told his employees that he must have a union in his shop and that he assisted it in order to combat the interest evinced in his employees by Local 66. The evidence for this conclusion, he urges, is the precipitate manner in which Respondent recognized the Shop Union without adequate proof that it represented a majority of the employees; permitting it to hold meetings in the shop which extended onto the Employer's time; allowing union mem- bers to transact union business during working hours without deducting from their wages for time so spent; and promising his employee benefits conditioned on their adhering to the Shop Union. The General Counsel contends that when the Respondent, after his conversation with Di Peri, advised his employees he must have a union in his shop that he com- mitted an unfair labor practice. This contention is premised on the language of Section 7 of the Act which provides, inter alia, that employees have the right to refrain from joining a union, except to the extent such right may be affected by an agreement requiring membership in a union.' In short, the General Counsel argues that when the Respondent's employees were told there must be a union in his shop, this statement was tantamount to bringing compulsion on the employees to join a union. To accept this argument is to give credence to a literal interpretation of the words Respondent spoke without regard to attendant realities in this case. The congres- sional purpose embodied in the Act is not served by such literalness. A mechanistic approach when judged by the realities of the case and found wanting cannot be countenanced. Semantics cannot be the basis for determining what Respondent meant when he told his employees that he must have a union in his shop.'° Nor can the substantive legal incidents resulting from this statement be adjudicated in a vacuum or in the abstract without regard to the existing circumstances under which the Respondent made this statement. The observation which the Supreme Court made in International Assn. of Machin- ists v. N. L. R. B., 311 U. S. 72 at page 79 can well be paraphrased to fit the circum- stances of this case. To say that the Trial Examiner must disregard what preceded the bare statement of the Respondent that he must have a union in the shop would ° The proviso beginning with the word "except" has no application to the facts of this case as the Respondent had no union in his shop it the time thi i incident occurred. 10 As was .aid by Chief Judge Hutcheson in N. L. R B v. Metallic Bldg. Co., 204 F. 2d 826 (C. A. 5) : Drawn to deal substantially with substantial things, the National Labor Relations Act has been from the beginning, it must continue to be, consistently with its avowed purpose and the language employed in the Act, broadly construed and as broadly given effect to cope with and prevent the mischiefs it was designed to meet and do away with. Shadow boxing with words, including dialectical hair splitting, the tithing of mint, anise and cumin, and the division of a mustard seed, to reach a formal , a technical result, has therefore no proper place, and may not be employed , in construing and applying it. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be to require the trier of these facts to shut his eyes to potent imponderables. The detection and appraisal of such imponderables are indeed one of the essential func- tions of a Trial Examiner. These existing circumstances which must be considered were the Respondent's knowledge that all of his customers had entered into contracts with the Charging Union's international affiliate which provided that they could only subcontract their work to contractors who operated union shops . The Respondent depended entirely on these customers for all of his business . He was aware , as were his employees, that if the Union brought pressure to bear upon these customers and they no longer sent him any more work that he would be compelled to close his shop . These were the existing circumstances-the actualities-with which he was confronted when he made the statement to his employees that he must have a union in his shop. A study of the legislative history of Section 8 (a) (2) of the Act and the cases interpreting it, have persuaded the Trial Examiner that these facts cannot be con- strued to be the basis for finding an unfair labor practice It seems clear that in considering whether the statement by the Respondent that he must have a union in his shop violates the Act-that this naked and isolated statement must be considered" in connection with the relevant circumstances and background in which it was made If this statement were to be considered only as to the words it contains , it might seem to destroy the employees ' freedom of choice and action, but when the relation of the parties , the surrounding circumstances , related statements and events , and the background of the employer's action are considered , it may be found that the state- ments were not in violation of Section 7 or contrary to the expressed purposes of the Act. Therefore, in determining whether the Respondent 's statement that he must have a union in his shop constitutes or is evidence of an unfair labor practice, there must be considered in connection with the statement , the position of the parties, the background of circumstances under which it was made and the general conduct of the parties . If, when so considered , such statement does not constitute a general pattern or course of conduct which constitutes coercion and deprives the employees of their free choice guaranteed by Section 7, such statement cannot be considered as a basis for a finding of unfair labor practice . To hold otherwise would be to effectuate a result which Congress could not have intended. The Act did not undertake the impossible task of specifying in precise and unmis- takable language each incident which would constitute an unfair labor practice. On the contrary, the Act left to the trier of the facts the work of applying the Act's general prohibitory language in the light of the infinite combination of events which might be charged as violative of its terms." In those cases where the employer was found to have coerced his employees into forming a so-called "company -union," his conduct was such as to interfere with, restrain, or coerce his employees in the exercise of their right to choose a bargaining representative. In this case , however, all the Respondent did was to expain to his employees why he must have a union in his shop which right , under the circumstances here related , is guaranteed to him by Section 8 (c) of the Act Under the Act, mere words ascribable to an employer do not constitute unlawful interference with the legal rights of the employees , unless the words amount either to an actual threat to, their freedom of choice , or, when interpreted in the light of other proven facts to be an implied threat of the same character. Hence, the Respondent in bringing to his employees ' attention the facts with which he was confronted and which impelled him to explain why he must have a union in his shop was merely exercising his right of free speech Nor is the state- ment coercive when evaluated in the context in which it was spoken. Under the circumstances of the case , it is found that the statement is protected both by Section 8 (c) of the.Act and by the constitutional guarantee of free speech . Accordingly, it is found that nothing contained in said statement is violative of the Act. The General Counsel claims that the Respondent initiated and participated in the employees' determination to form a shop union The record, however, does not confirm this contention . When Haspel told the employees that he must have a union in his shop, and Argento , the shop foreman, at Haspel 's direction , explained to the employees the reason why a union was necessary , the employees after consider- ing what they had been told, decided it would be preferable to form their own shop union rather than affiliate with Local 66, the Charging . Union herein. The reason they so decided was because those shops which were affiliated with Local 66 had seasonal layoffs whereas Respondent 's shop had in the past worked steadily the year around. They believed that the probabilities of their working steadily, would be diminished if they joined an affiliated union. 11 Republic Avuitlon Corp v N L R B, 324 II S. 793, 798 EPHRAIM HASPEL 47 - Insirello, an employee, in answer to a question as to why the employees decided to form a shop union testified as follows: We were sort of content with what he had and we would like to keep it that way if it were possible. We were all making a living in the shop and making a fairly good living and a sort of steady living. Not like the run-of-the- mill of the other shops on the outside that have seasonal work. Off season we work pretty steady. Figured we wanted to keep it that way. And they [employees] all got together and they thought well, here we are making a living, not making as much as the Union permits to pay but on the overall we are making a good living and steady and if we could possibly keep it that way, meaning by forming a shop union, we can keep it that way, we would like to do it that way. This testimony, which is uncontradicted, shows, and it is so found, that there was no interference by the Respondent with the formation of the Shop Union and .that the decision not to affiliate with Local 66 was the untrammeled choice of the .employees themselves. Nor are there sufficient facts in the record to support a finding that the Respondent assisted the Shop Union or dominated and interfered with its formation and administration in violation of Section 8 (a) (2) of the Act. On the contrary, the evidence indicated that the employees voluntarily chose to form the Shop Union. Prior to the formation of the Shop Union, Respondent had given his employees a paid vacation of 1 week and a Christmas bonus equivalent to 1 week's salary. After the Shop Union was organized, Malara, the chairman, requested the Respondent to agree to pay the employees an amount equivalent to 4 percent of their gross annual pay in lieu of the existing arrangement whereby they received 1 week's paid vacation and a Christmas bonus amounting to a week's pay. Respondent agreed. Malara then asked Respondent to pay the vacation and bonus money to the Shop Union's employees benefit fund for distribution by the Shop Union to its members. Respondent would not agree to do this unless the Shop Union first was certified by the Board as the collective-bargaining agent of his employees. The General Counsel takes the position that this 4-percent method for computing vacation pay and the Christmas bonus is a promise of benefit to the employees and that Respondent made these alleged benefits dependent on recognition and certifica- tion of the Shop Union so that by this tactic, Haspel "keeps his [employees] in line [and so] ties them to the E. Haspel Shop Union, which he has assisted," thereby preventing the employees from exercising "free choice any longer." Insofar as increased monetary benefits accruing to the employees under this new plan are concerned, Respondent's Exhibit No. 1 shows that some of the em- ployees did benefit by a small amount, while others received less money than they had received formerly. On an overall basis, however, the 15 employees benefited by $10 in the aggregate or approximately 33 cents annually for each employee. This amount is so insubstantial that it is found the employees received no appreciable increase or benefit thereby under the plan inaugurated after the formation of the Shop Union. The General Counsel then argues that conceding there may not have been any substantial financial benefit to the employees, still the fact that the manner of computing the vacation pay and Christmas bonus was made simpler is in itself a benefit. The General Counsel has produced no authority for this argument, nor are there any cases, so far as the Trial Examiner is aware, holding for this proposi- tion. The General Counsel cites as an example of assistance rendered by the Respondent to the Shop Union the fact that 2 Shop Union members absented themselves from work on 2 occasions on company time to transact union business at the office of the Shop Union's attorney, and the time so spent was not deducted from their wages. It is uncontroverted that on both these occasions the Respondent was not in the shop when the employees left or when they returned a few hours later. The Respondent testified that he knew nothing of these alleged acts of assistance of his until he heard it related at the hearing.12 Assistance, by hypothesis, connotes help intentionally, consciously, and voluntarily rendered. The Trial Examiner finds it impossible to accept the General Counsel's contention that the Shop Union was assisted when the Respondent was totally ignorant of the fact that the employees had gone to the office of the Shop Union's lawyer. Such a conclusion stretches too far the meaning of "assistance." The Respondent, it would appear, cannot, under such circumstances, be chargeable with assisting the Shop Union. 12 The evidence is contradictory whether Argento knew of the employees' visits to the attorney's office. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contends that when the Respondent permitted Shop Union meetings to be held on his premises during the lunch hour and after working hours that he thereby violated the Act.13 Nowhere in the record is there any indication that the Respondent required such meetings to be held in the plant; that any condi- tions were attached to the use of his facilities, or that he gave any inducements to the Shop Union to hold their meetings there. The Shop Union was free to hold its meetings in any place and in whatever manner it wished. The Respondent never participated himself or by his foreman, Argento, in these meetings.14 When Haspel, the Respondent, was asked if he permitted his employees to hold their Shop Union meetings on his premises, he replied: "I didn't permit it but I didn't forbid it. I never registered any objections to it." The fact that Respondent remained passive should be a point in his favor rather than be considered an indicium of assistance. The use of the employer's premises by the Shop Union for its meetings, by itself, is not an unfair labor practice but must be considered in relation to the attendant circum- stances. Tennessee Knitting Mills, Inc., 88 NLRB 1103. In this connection, the record discloses a friendly attitude on the part of the Re- spondent toward his employees prior to the formation of the Shop Union. With the advent of the Shop Union there was no legal necessity for this friendly attitude to be transformed to antagonism. The Act does not require a militant attitude between labor and management. To the contrary, a peaceful and satisfactory relationship of the kind in effect between Respondent and his employees is the objective of the Act. To hold that the use of the Respondent's shop for union meetings, under such cir- cumstances, is assistance forbidden by the Act would be the equivalent of punishing beneficence and placing a premium on malevolence. Such an interpretation, it is sub- mitted, would not effectuate the purposes of the Act, especially where the Union, as here, was indigent and could ill afford to rent space to hold their meetings. The General Counsel's claim that the precipitate manner in which the Respondent recognized the Shop Union is an indicium of assistance misconceives the type of sit- uation to which this argument has reference. Assuming arguendo, that the Respond. ent did act precipitately in recognizing the Shop Union, the Respondent's action is not evidence of an unfair labor practice, because the Shop Union, at the time it was recognized by the Respondent, represented all of the Respondent's employees. More- over, Local 66, the Charging Union herein, had made no claim of majority repre- sentation on the date when the Respondent recognized the Shop Union. Further- more, when the Respondent recognized the Shop Union, he was not confronted with conflicting representation claims by two rival unions. Therefore, Respondent's recognition of the Shop Union, under these circumstances, did not constitute unlaw- ful assistance. Suer Mill Company, 92 NLRB 1680, 1683. Finally, the complaint alleges that' Respondent questioned his employees with regard to their union membership, sympathy, and activities in violation of Section 8 (a) (I) of the Act. There is no evidence in the record, either substantial or in the nature of a scintilla, to support this allegation and it is so found. The gist of the General Counsel's position appears to lie in the contention that the Respondent violated the Act when he took the initiative in calling the employees together and announcing what had occurred in his conversation with Di Peri, the union business agent, and stating to them that he must have a union in his shop. This, the General Counsel contends, is contrary to the policy expressed in Section 7 and violates Section 8 (a) (1) and (2) of the Act. The record indicates that the determination of the employees to form their own labor organization and not to associate with an affiliated union was influenced by their past experiences in the New York City garment industry. They considered carefully the benefits which they believed would derive from a shop union and con- trasted these benefits with the possible disadvantages of having an outside union in the shop. The Act does not deprive them of the right to organize and form an inde- pendent union nor does it require that they join an affiliated union. They can choose 14 The General Counsel contends also that meetings were held on company time The record does not sustain this allegation. The General Counsel points to the use of the Respondent's bulletin board and purchase of the Shop Union's minute book for a trifling sum with Respondent's funds as indicia of assistance. These incidents are insubstan- tial and insufficient to support a finding of unfair labor practices because they exerted no material influence upon the members of the Shop Union Moreover, Respondent was not aware that his funds mere used to pay for the minute hook See Carter's testimony at pages 248-250 Cf also Julius Resinch, Inc, 86 NLRB 38, 49, 50; Syracuse Color Press, Inc , 103 NLRB 377. 14 Argento was present at one meeting but for no other purpose than to deliver Haspel's message that he must have a union in his shop. EPHRAIM HASPEL 49) any bargaining representative they desire. When they make that choice, it is an in- violable election so long as their choice was not instigated, assisted, dominated, or interfered with by the employer. The Shop Union was not instigated by the Respond- ent but evolved from a situation in the New York City garment industry with which, the employees were familiar. They believed it was to their best self-interests to form a shop union. There is, therefore, no justification for the allegation that the Shop Union was instigated, assisted, and dominated by the Respondent. The evidence shows that the Respondent maintained a neutral policy in that the Respondent never attempted to influence or dictate any decision of the Shop Union. Nor is there any evidence in the record that any member of the Shop Union felt himself coerced. In N. L. R. B. v Thompson Products, 130 F. 2d 363, 368, the court pointed out that "the test, whether a challenged organization is employer controlled, is not an ob- jective one but rather subjective from the standpoint of employees." Cf. Interna- tional Assn. of Machinists v. N. L R B., 311 U. S. 72, N. L. R. B. v. Link-Belt Co., 311 U. S. 584. This comment seems directly applicable here. The Shop Union, it is true, was quickly formed and promptly recognized by the Respondent. To this, in itself, there can be attached no stigma of unfair labor prac- tice. If the Shop Union represented a majority of the employees, it was the statutory duty of the Respondent to recognize it. The situation here was much stronger for re- quiring recognition because the Shop Union represented all the employees and furthermore, the Charging Union, Local 66, had never claimed it represented a majority of Respondent's employees. There was no labor organization in the shop prior to March 1953, no unrest over union matters and the employer-employee relationship was friendly. Shortly after the employees were made aware of the interest of Local 66, in establishing a union at Respondent's shop, the employees discussed the merits and demerits of various forms of organization and the advisability of forming their own union. An informal meeting was held by the 15 employees at which was considered the ques- tion of organizing a shop union of the employees to bargain collectively through a representative of their own choosing and to form a labor organization within the ranks of the shop's employees. Subsequently, they consulted with an attorney, hav- ing no connection with the Respondent, and sought advice as to whether they com- plied with the law in forming their own shop union. After hearing the facts, the attorney advised them that their action was proper and he drew up a proposed con- stitution and bylaws which was later adopted by the members. Once organized, the Shop Union became active to protect its members' interests by bargaining effectively with the Respondent. It did everything for its members that any union might legitimately do including the establishment of a fund for paying benefits to its sick members. It entered into an agreement, albeit oral,is with Re- spondent, but was unsuccessful with respect to having the funds which represented the vacation pay and Christmas bonus paid directly to the Shop Union until such time as it was certified by the Board. This aspect of the negotiations indicates that the parties were dealing with each other at arm's length. The Trial Examiner is per- suaded that the record in this case shows one of those situations where the employees decided to form their own shop union, to prevent what they considered might be a less advantageous external organization Moreover, there is not substantial evidence from which it could be reasonably inferred that these employees, did not, with complete independence and freedom from domination, interference or support of the Respondent, form their own union and it is so found The Act does not compel employees to affiliate with any particular union, national or otherwise It does not prevent them from forming truly independent unions of their own choosing. N. L. R. B. v. Newport News Shipbuilding ct Dry Dock Co, 308 U S 241, 250. The Act does not purport to prohibit independent unions except where they are linked to the employer There is no presumption in the law or under the cases construing Section 8 (a) (2) of the Act that an independent labor union cannot exist without some form of employer support 16 Freedom of choice on the part of employees is the essence of the right which is protected by Section 8 (a) (1) and (2) of the Act. There is no substantial evidence that the Respondent engaged in conduct which can be fairly construed as an inter- "Theie is no requirement that collective-bargaining agreements be in any particular form, or that they be reduced to writing N L 1? B. v Scientific Nutrition Corp , 180 F 2d 447, 449 (C A 9) 19 De tiardelehen v N L R B . 135 F 2d 13, 15 (C. A. 5) ; N L R B v Thompson Prod- ncty, 162 F 2d 287. 293 (C A 6) , House Conference Report No 510, 80th Cong, 1st Sess, page 40; S Rep. 106, 80th Cong 1st Sess, pp 3, 12-13; 93 Cong Ece 4150, 4321, 4411, 5145 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ference with the employees' freedom of choice, or that the Respondent has domi- nated and interfered with the administration of the Shop Union or contributed fi- nancial or other support to it.17 It is found, therefore , that at no time did the Respondent interfere with, restrain, or coerce the Shop Union . After considering the entire record and demeanor of the witnesses while testifying , it is concluded that the evidence does not indicate any violation of Section 8 (a) (2) of the Act. In view of the conclusions reached in earlier sections of this report , it is found also that the complaint's allegations of independent violations of Section 8 (a) (1) on the part of the Respondent have not been sustained. The burden was on the General Coun- sel to prove affirmatively , by substantial evidence, that the conduct described above constitutes unfair labor practices . The Trial Examiner does not believe that the General Counsel met this burden and it is so found.18 In view of the foregoing conclusions , it is concluded that the evidence warrants no finding that the Respondent committed unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the Act, and it will therefore be recommended that the complaint be dismissed in its entirety.19 On the basis of the foregoing and upon the .entire record in the case , the under- signed makes the-following: CONCLUSIONS OF LAW 1. The Respondent, Ephraim Haspel, an individual doing business as Ephraim Haspel has engaged in and is engaging in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The E. Haspel Shop Union and Bonnaz and Hand Embroiderers, Tuckers, Stitchers and Pleaters Union, Local 66, International Ladies Garment Workers Union, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the Act have not been sustained. [Recommendations omitted from publication.] 17 Cf. N. L. R. B. v. Swank Products , 108 F. 2d 872 , 874 (C. A. 3). 18 Indiana Metal Products Corp . v. N. L. R. B., 202 F. 2d 613 (C. A. 7). 19 N. L. R. B. v. Universal Camera Corp ., 340 U. S . 474 at 494, 495, 496 ; N. L. R. B. v. Dinion Coil Co., Inc., 201 F. 2d 484 (C. A. 2). ARTHUR COLTON COMPANY and SNYDER TOOL AND ENGINEERING COM- PANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO. Case No. 7-CA-90.1j. J'lly 8,1954 Decision and Order On February 15, 1954, Trial Examiner Loren H. Laughlin issued his Intermediate Report in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain un- fair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respond- ents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 109 NLRB No. 7.