Arts & Crafts Distributors, Inc.

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 20, 1960, or thereafter. In the event employment is not then available for Rackley and Hamilton, it is recommended that they be placed on a preferential list with priority for hiring in accordance with nondiscriminatory standards heretofore used by Respondent and thereafter offer them employment as such employment be- comes available and before other persons are hired for such work. Backpay is recommended to make whole the above employees against whom Re- spondent has discriminated for any losses they may have suffered by reasons of the discrimination. The period of the computation is to be from the date of discrimi- nation to the date of the offer of reinstatement or reinstatement, whichever is earlier, or placement on a preferential list, as the case may be. In view of the fluctuating nature of Respondent's business and the effect thereof upon the employment complement this factor is to be taken into consideration in the backpay computation. Also, because there is evidence that Rackley, at least, was attending school, such factor or related appropriate factors bearing on the discrimi- natees' normal absence, if any, from the labor market, is to be taken into consider- ation in computing backpay. In summary, it is recommended, that Respondent make whole Rackley and Hamil- ton for any losses they may have suffered because of the discrimination against them, by payment to each a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of the offer of rein- statement, or placement on a preferential list, as the case may be, less their respective net earnings during said period The backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. CONCLUSIONS OF LAW 1. By failing and refusing to rehire and reemploy Roy J. Rackley and John L. Hamilton on or about June 20, 1960, as found in section III, hereinabove, Respondent. has discriminated in regard to their hire, tenure, and conditions of employment, thereby discouraging membership in a labor organization or in concerted activity, and the exercise of rights guaranteed by the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 2. By interrogating employees concerning their union or protected activity on June 2, 1960, Respondent has interfered with the rights of its employees within the meaning of Section 8(a) (1) of the Act. 3. By conditioning the grant of a wage increase and other benefits to its employees on May 18 or 19, 1960, upon their agreement to abandon their union activity, Re- spondent has interefered with the rights of its employees within the meaning of Section 8 (a)( I) of the Act. 4. Respondent has not engaged in unfair labor practices in those respects de- scribed in section III, above, wherein a recommendation of dismissal of the par- ticular complaint allegations has been made. [Recommendations omitted from publication.] Arts & Crafts Distributors, Inc. and Warehouse Employees Union Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 5-CA-1726. July 14, 1961 DECISION AND ORDER On November 16, 1960, Trial Examiner Louis Plost 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 Intermediate Report attached hereto. He also found that Respondent had not engaged in certain other unfair labor practices as alleged in the com- 132 NLRB No. 14. ARTS & CRAFTS DISTRIBUTORS, INC. 167 plaint. Thereafter, exceptions to the Intermediate Report were filed by the Charging Party, the Respondent, and the General Counsel, and supporting 'briefs were filed by the latter two parties. 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 Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, only insofar as they are consistent with this Decision and Order. 1. For the reasons stated in the Intermediate Report, we agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act, by offering and granting changes in hours, wages, and working conditions and by interrogating employees with respect to their union membership, after the Union demanded recognition. 2. The Trial Examiner found that Respondent did not refuse to bargain with the representative of a majority of its employees in violation of Section 8 (a) (5) and (1) of the Act as alleged in the com- plaint. We do not agree. Respondent is a wholesale distributor of art supplies with an office and warehouse at College Park, Maryland, under the supervision of General Manager Albert Ellerin. On May 31, 1960, Henry G. Butler, business manager of the Union, telephoned Ellerin. Butler stated that the Union represented a majority of the truckdrivers and ware- house employees and that his purpose in calling was to request recog- nition as their bargaining representative. He also indicated it will- ingness to establish the Union's majority status through a cardcheck by a member of the clergy or other disinterested party. In his tes- timony, Ellerin, without denying the content of this conversation given by Butler, characterized it as a conversation in which Butler was letting him know ". . . that there was going to be negotiations .. . ;between our company and the Teamsters. . . ." The record clearly •establishes, and we find, that a demand for recognition as representa- tive of the employees named was made on May 31, 1960. Ellerin gave Butler no definite answer but promised to have his attorney call Butler. Later in the day Ellerin advised Butler that he had been unable to reach his attorney, and Butler then proceeded to mail a petition and the showing-of=interest cards to the Regional Office of the Board.' On June 2, 1960, Respondent's attorney did call Butler and, after Butler reiterated the Union's claim as majority representative and request for recognition, it meeting date was set for the afternoon of June 6 to discuss'the matter. 'The petition , docketed the following morning, June 1, 1960, set forth a unit of "all warehousemen and truck drivers" at the -Respondent's warehouse "excluding clerical em- +_ployees , watchmen , guards, and supervisors as defined in the Act" 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As noted, the unit described by the Union in its demand and in its: petition was a warehousemen and truckdrivers unit. On May 31,. Respondent had a total regular working complement of 21, including Ellerin, and 2 other supervisors. Of the 18 nonsupervisory em- ployees, 8 are office employees 2 and 10 are warehouse employees and truckdrivers.3 In wholesale operations the Board commonly finds- units of warehousemen and drivers appropriate and customarily ex- cludes office clerical employees from such a unit if any party objects to their inclusion, even in the face of a contrary bargaining history .4 There is no bargaining history here and the Union did not seek to include office clerical employees. Accordingly, we find that a unit of all warehouse employees and truckdrivers at Respondent's College Park, Maryland, facility, excluding office clerical employees, watch- men, guards, and all supervisors as defined in the Act, is appropriate. At the time of the Union's demand for recognition, May 31, 1960, in the unit hereinabove found appropriate, there were 10 employees, 7 of whom signed authorization cards on May 29, 1960. Thus, at the time of the demand for recognition, the Union had been designated bargaining representative by a clear majority of the employees in the appropriate unit 5 On the morning of the scheduled meeting, June 6, Respondent's president, Charles Ellerin, and General Manager Albert Ellerin called eight or nine of the warehouse employees as a group into the office, expressed displeasure with the employees' interest in the Union, solic- ited their individual complaints, and announced changes in hours, 2 of these , six i i e admittedly office employees They are an invoice payment clerk, switchboard operator , bookkeeping machine operator, invoice auditor, secretary, and buyer A question concerning the unit placement of the following two was raised Gordon Campbell is the assistant buyer . He takes the inventory cards for any line in which buying is indicated into the warehouse, fills in the quantities on hand, and writes up orders We find that the assistant buyer is an office employee . Walter Nieman, as of May 31, was working on a special planning project to update and rearrange the physical layout of the merchandise in the warehouse His regular duties are in the office where he takes over for the office manager in the latter's absence We find that he is an- office employee who was only temporarily working in the warehouse on a managerial' project on May 31. 3In addition to the two drivers there were three stock pickers , a receiving clerk , packer, shipping clerk , and janitor-wrapper, all admittedly a part of the warehouse group. The unit placement of Alice Bateman was questioned . She has a desk near that of the ware- house manager and assists him by taking telephone orders , attaching packing slips to in- voices, typing orders, and preparing orders for stock pickers to pull . We find that her duties are those of a plant clerical and that she is appropriately a part of the warehouse unit. * See Schieffelin it Co , Wine it Spirit Import Division, 129 NLRB 956. 6It is immaterial that the eligibility list attached to a later consent-election agreement contained 14 names, for a union's majority status in the, appropriate unit is -determined as of the time of the , demand for recognition See United hatchery 4battoir, Inc, 123 NLRB 946, 956 . Moreover, we note that two of those named were employed after the date of the demand and we have determined that the other two named were office em- ployees and not appropriately a part of the unit. The exclusion of the latter two did not alter the essential nature of the unit requested , nor did it affect the Union's majority status therein as no authorizations cards bearing their names were submitted. Respond- ent's challenge of the Union's majority status at the hearing on the basis of this eligibility list is without merit. ARTS & CRAFTS DISTRIBUTORS, INC. 169' rates of pay, and other conditions of employment, as more fully set forth in the Intermediate Report, which conduct has been found to have violated Section 8 (a) (1) of the Act. That afternoon Respond- ent met with the Union and, among other things, suggested that be- cause of the small size of Respondent's operation a unit of all em- ployees would be more appropriate than that requested by the Union. When the Union indicated a willingness to accept such a unit if the Respondent would sign a contract, Respondent then questioned the Union's majority status in the enlarged unit. The Union reiterated that it was seeking only the drivers and warehouse unit, and Respond- ent's attorney stated he would hold a board of directors' meeting and advise the Union as to whether recognition would be granted. Re- spondent's board of directors met on June 9 and decided not to grant the Union recognition without an election, and the Union was so advised by Respondent's attorney. At no time prior thereto did Respondent question the appropriate- ness 8 or identity of the unit sought by the Union nor did it at any time prior to June 9, question the Union's majority representative status therein. On the contrary, Respondent demonstrated its clear understanding as to which employees were involved by calling the eight or nine drivers and warehouse employees into a meeting on the morning of June 6, and in the context of other unlawful conduct, expressing its disapproval of their interest in the Union.' Only after it attempted to dissipate the Union's majority did Respondent state its refusal to recognize the Union and demand that it establish its majority status in an election. While an employer may request a Board election as proof of a union's majority status, the right to do so is not absolute. Where insistence is motivated, not by any bona fide doubt as to the union's majority status, but rather by a rejection of the collective-bargaining principle, or a desire to gain time within which to undermine the union, such insistence is unlawful.' All the relevant facts in this case, including Respondent's unlawful conduct and the sequence of events, demonstrate that its delay in responding to the Union's demand for recognition and its insistence upon an election were motivated by a desire to gain time in which to undermine the Union's majority status. 9 Respondent , by suggesting a larger unit on June 6 did not express a doubt as to the appropriateness of the unit requested by the Union Moreover , had the Respondent be- lieved that only the larger unit was appropriate , it could rely upon this only at its peril See United Butchers Abattoir, Inc, 123 NLRB 946, 957 ° See Ivy Hill Lithograph Company, and Record Packaging Corporation , 121 NLRB 831, 835, where , because all coercive conduct was directed toward employees in the unit sought, the Board held no good -faith doubt as to the composition of the unit existed 8Joy Silk Mills, Inc., 85 NLRB 1263 , enfd. 195 F. 2d 732 (C.A.D.C) United Butchers Abattoir, Inc., supra ; Laabs, Inc , 128 NLRB 374. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor does the pendency of a petition for certification or the execu- tion of a consent-election , agreement 9 relieve the Respondent of its duty to bargain in these circumstances. The filing of a petition does not constitute an irrevocable commitment by the Union to establish its representative status only through a representation proceeding. Confronted as it was with Respondent 's unfair labor practices, de- signed to destroy its majority in the unit and make a free election impossible, the Union was forced to choose whether, in the face of such conduct, it would proceed to establish its bargaining rights through the representation or complaint proceeding . The Union chose, before the scheduled election , to file the charges herein and to withdraw its petition . A selection of forums is timely if made be- fore the representation election is held, nor does it constitute abuse of the Board's processes. In light of all the relevant facts, and upon the entire record, we therefore conclude that the Union 's demand for recognition and bar- gaining in an appropriate unit on May 31, 1960, imposed upon Re- spondent a duty to bargain which Respondent may not evade by -delaying its response, committing unfair labor practices, and then belatedly questioning the Union's majority status. In view of the Respondent's unfair labor practices, we find that its refusal to recog- nize the Union on May 31 , 1960, and at all times thereafter, was not -based on any bona fide doubt as to the Union's majority status, but was intended to gain time in which to undermine the Union's repre- sentative status. Respondent therefore failed and refused to bargain in good faith with the Union in violation of Section 8(a) (5) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order that it cease and desist -therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that on May 31, 1960, and at all times thereafter, the Union was and is the authorized and exclusive representative- of Respondent's employees in an appropriate unit for the purpose of collective bargaining, and that on and after May 31, 1960, the Re- spondent refused to bargain with said representative in violation of the Act. Accordingly, we shall direct the Respondent, upon request, -to bargain with the Union as the authorized and exclusive representa- tive of its employees in the appropriate unit. 9 Respondent's actions in consenting to an election do not rebut the indicla of bad faith evidenced by its unlawful conduct. Traders Oil Company of Houston, 119 NLRB 746, 750, enfd 263 F 2d 835 ( C.A. 5), cert. denied 361 U.S. 829; Taylor-O'Brien Corporation, 112 NLRB 1 ; The Warren Company, Incorporated, 90 NLRB 689, footnote 3 ARTS & CRAFTS DISTRIBUTORS, INC. ADDITIONAL CONCLUSIONS OF LAW 171 1. All warehouse employees and truckdrivers of Arts & Crafts, Distributors, Inc., at its College Park, Maryland, warehouse, exclud- ing office clerical employees, watchmen, guards, and all supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Warehouse Employees Union Local 730, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been at all times since May 31, 1960, and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3. By failing and refusing at all times since May 31, 1960, to bar- gain with Warehouse Employees Union Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of employees in the appropriate unit, the Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a) (5)• of the Act. 4. The aforesaid unfair labor practices affect commerce within the- meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Arts & Crafts Distributors, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Warehouse Employees Union Local 730, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bar- gaining representative of all warehouse employees and truckdrivers of Arts & Crafts Distributors, Inc., at its College Park, Maryland, warehouse, excluding office clerical employees, watchmen, guards, and all supervisors as defined in the Act. (b) Offering to or granting any of its employees beneficial changes in their hours, wages, or working conditions with the purpose of in- fluencing their activities on behalf of or membership in any labor organization, or interrogating any of its employees with respect to their union membership for the same purpose. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organiza- tion, to form labor organizations, to join or assist Warehouse Em- ployees- Union Local 730, International Brotherhood of Teamsters, 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will •effectuate the policies of the Act: (a) Upon request, bargain collectively with Warehouse Employees Union Local 730, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive repre- sentative of all warehouse employees and truckdrivers in the afore- said appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant at College Park, Maryland, copies of the notice attached hereto marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director of the Fifth Region, shall, after being duly signed by the Respondent, be posted by it immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all -places where notices to employees are customarily posted. Reason- -able steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps the Respond- ent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 11 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the -words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE wILL, upon request, bargain collectively in good faith with Warehouse Employees Union Local 730, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, ARTS & CRAFTS DISTRIBUTORS, INC. 173 hours of employment, and other conditions of employment, and, if an understanding is reached, we will embody such understand- ing in a signed contract. The bargaining unit is : All warehouse employees and truckdrivers of Arts & Crafts Distributors, Inc., at its College Park, Maryland, warehouse, excluding office clerical employees, watchmen, guards, and all supervisors as defined in the Act. WE WILL NOT offer or grant any of our employees any beneficial ,changes in their hours, wages, or working conditions with the purpose of influencing their activities on behalf of or member- ship in any labor organization and we will not interrogate our employees with respect to their membership in or activities on behalf of any labor organization for the same purpose. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights to :self-organization, to form labor organizations, to join or assist Warehouse Employees Union, Local 730, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to join or assist any labor organiza- tion, and to engage in any self-organization or other concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection or to refrain from such activities except to the extent that such right is affected by an agreement made in conformity with Sec- tion 8 (a) (3) of the Act. ARTS & CRAFTS DISTRIBUTORS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by Warehouse Employees Union Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called the Union, that Arts & Crafts Distributors, Inc., herein called the Re- spondent, has been engaging in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act, the General Counsel of the National Labor Relations Board, herein called the Board, on behalf of the Board, by the Regional Director for the Fifth Region, issued a complaint and notice of hearing pursuant to Section 10(b) of the Act and Section 102.15 of the Board's Rules and Regulations, as amended.' The Respondent duly filed an answer denying in effect that it had engaged in any of the unfair labor practices alleged. In substance the complaint alleged that since May 31, 1960, the Union repre- sented an appropriate collective-bargaining unit of the Respondent's employees; that the Respondent, since May 31, 1960, has refused to bargain collectively with the Union as the exclusive representative of said appropriate unit, and has engaged in other conduct violative of the Act, more particularly 8(a) (1) and (5) thereof. Pursuant to notice, a hearing was held before Louis Plost, the duly designated Trial Examiner, on September 19 and 20, 1960, at Washington, D.C. At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue orally on the record, and to file briefs and proposed findings and conclusions. At the close of the hearing the Respondent moved to dismiss the complaint, ruling was reserved, and is disposed of by the final findings in this report. The parties argued orally on the record and reserved the right to file briefs. On October 5, the Trial Examiner was informed in writing that no briefs would be filed. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times material herein, a corporation duly organized and existing by virtue of the laws of the State of Maryland, having its principal office and place of business at College Park, Maryland, where it is engaged in the wholesale distribution of art supplies. The Respondent, in the course and conduct of its business operations during the preceding 12-month period, a representative period, transported and delivered more than $25,000 in value of materials and supplies within the District of Columbia and in commerce from and through the States of the United States, and purchased ma- terials and supplies valued in excess of $50,000, which were shipped from places outside the State of Maryland direct to the Respondent's plant at College Park, Maryland. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Daniel A. Hennessey, organizer for the Union, testified that he began organizing the Respondent's employees on May 17, 1960, holding a meeting on that day, a second meeting on May 19, and a third meeting on May 29, which was attended by seven of the Respondent's employees, all of whom signed application cards for membership in the Union. However, on cross-examination Hennessey ad- mitted that the original (May 17) meeting was merely a "contact" with employee Carroll Scott at Scott's home; that on May 19, he met only with Scott and employee Henry Gotschall, also at Scott's home; and that on May 29, the seven employees who signed cards met with him at the Union's office. Hennessey further testified he turned the seven cards over to Henry G. Butler, the Union's secretary-treasurer and business manager, who in turn testified that on May 31, 1960, he telephoned Albert Ellerin, the Respondent's manager at College Park. Maryland, introducing himself and stating the purpose of his call. He further testified: 3 A copy of the charge filed in this matter on June 21, 1960 , was served on Respondent on or about June 22, 1960; the complaint was dated August 5. 1960 ARTS & CRAFTS DISTRIBUTORS, INC. 175 Mr. Ellerin professed a doubt as to labor law and his rights. I asked him if he had an attorney. He stated he did. And I told him there were three methods that we could obtain recognition by. One was through the National Labor Relations Board, under the auspices thereof, and I explained it to him quite fully. Two, by virtue of a card check where we could take a member of Clergy, a disinterested party, to verify the application signatures against that of the payroll cancelled checks. And three, through economic recourse. Q. What was his reply? A. Mr. Ellerin did not give me a definite reply. In the absence of reaching his attorney, Mr. Braiterman, he was to call Mr. Braiterman and he promised to call me back and give me a definite answer. According to Butler he did not remember a call by Ellerin, but "subsequently" the Respondent's attorney did call him. Albert Ellerin , the Respondent's manager, with respect to Butler's telephone call of May 31, testified: There wasn't too much said during this telephone conversation, because I don't think it was the type of thing where anyone was going to do any elaborate discussion. It was merely a call to let me know that there was going to be a matter to be dealt with between the Teamsters and Arts and Crafts Distributors. Butler further testified that on the same day, May 31, before he again spoke to anyone representing the Respondent he filed a petition for a Board determination of a bargaining representative by an election among certain of the Respondent's em- ployees; that he filed the petition by mail also forwarding the seven cards signed by the Respondent's employees. The petition was received in the Board's Fifth Regional Office on June 1, 1960, and was docketed as Case No. 5-RC-3144 (not published in NLRB volumes). The seven cards were received at the same time. These cards remained in the Fifth Region's file and were never seen by the Respond- ent until produced at the instant hearing. It is clear that at the time the Union filed the petition in Case No. 5-RC-3144 it had made no actual request for recognition or offer proof of majority as the bargaining representative of any of the Respondent's employees, however, the Union may take advantage of the rulings that the mere filing of the petition sufficiently raised the question of representation with respect to Case No. 5-RC-3144. Sheldon Braiterman , the Respondent's attorney, testified credibly that he first spoke to Butler on June 2, at which time: Mr. Butler told me that he represented what he believed to be a majority of the men; that they wanted to organize the College Park Warehouse; that he wanted to speak for the men. And I told him at that time that I felt we should set up a meeting to discuss the matter togeher. He told me that he was sorry that he sent in a request , to the Labor Board, a petition to the National Labor Relations Board. But I had not returned his call earlier. But he would try and withdraw the petition so he would have an opportunity to meet .2 Braiterman and Manager Ellerin met with Butler at the latter's office on the after- -noon of June 6, 1960, however, prior to this meeting the Respondent first met with some of its warehouse employees. Employee Henry M. Gotschall testified that between 9:30 and 10 a.m., June 6, "about eight or nine" of the warehouse employees were called into manager Ellerin's 'office; that both Manager Ellerin and Charles Ellerin , the Respondent's president, spoke to the group; that "Well, he asked what were our gripes, our basic gripes that we had to negotiate with the union, and why couldn't we-no, strike that one. He wanted to know our basic gripes. He asked each one of us." That after the em- ployees voiced their complaints, according to Gotschall- Then he told us what he was going to do and what he had had in mind for a period of time; that we were going to have a shorter work week We were working nine, and he said it was going to be cut to eight. Also that the pay would remain the same for the shorter period worked, and that <certain changes would be made with respect to sick leave granted chargeable to the Christmas bonus, Ellerin telling the group the changes would be made effective, the next pay period, June 9. 2 Butler had filed the petition on May 31 without waiting for a call from the Respondent 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gotschall further testified: Q. What was said about the union, to the best of your recollection? A. Against it? Q. No. What was said about it, for or against it9 A. Well at the particular time, I think be just wanted to know why that we- had to have somebody else negotiate for us; why weren't we men enough to, come in and talk it out with him, because the door was always open, which, it was. I don't think there was anything else said against the union. Charles Ellerin, the Respondent's president, testified with respect to the afore- mentioned meeting: Q. How did that meeting originate? A. It originated by my presence at the warehouse, and a lot of discussion. about the union, and so forth. And we asked the men if any of them would like to come into the office as a group; that I would be glad to listen to any complaints, objections, or any other matters that they wished to discuss with me. According to President Ellerin the shortening of the workweek, with no loss of pay, and the sick leave benefits were discussed and agreed to by the Respondent, how- ever, the Respondent contends that the matter of the change in hours had been long planned and discussed by the Respondent at its directors' meetings "in advance of knowing anything about the union business" but the Respondent admits that its in- tentions or discussion had never been disclosed to its rank-and-file employees. Conclusion On the entire record considered as a whole , the Trial Examiner is convinced that but for the advent of the Union , although the Respondent may well have long con- sidered and planned changes in working conditions beneficial to the employees, such changes would not have been made at the time they were The Trial Examiner is further convinced that the motivating force for the changes so readily granted by the Respondent was intended to affect its employees thinking with respect to the necessity of the Union. The change in hours and pay was therefore clearly a benefit offered and granted employees for no other purpose than to influence their activities on, behalf of the Union and as such was interference with the rights guaranteed them by the Act. The Trial Examiner so finds. B. The alleged refusal to bargain Attorney Braiterman testified that "at the close of the day" Monday, June 6, he, together with Manager Ellerin, met with Union Business Manager Butler in the latter's office in Washington. Braiterman testified: The first thing that took place at that meeting was that Mr. Butler told us that he knew all about the meeting that took place in the morning between the employees and Mr. Albert Ellerin and Charles Ellerin He stated at the meeting that he understood and knew that they had decided to cut the men's working hours from 45 hours to 40 hours a week, and that they were now setting up and rearranging their bonus time so they could have a form of sick pay. He said that he thought both of them were good ideas. And he said that people who do things like that, he felt sure there would be no problem in them reaching an understanding with the union. At that time we then went into a discussion as to whether or not he represented a majority of the men. And we also had some discussion as to what unit was involved According to Braiterman, the Union's business manager first "talked about" the Respondent and the Union signing a contract to cover the whole plant but when the Respondent expressed doubt as to the Union's majority status "he [Butler] wanted to narrow the unit down," finally claiming a unit consisting of eight people whom he named.3 Braiterman further testified that Butler then spoke of benefits the Union could obtain, in the way of business, for the Respondent if it signed a contract, and threatened that if the Respondent did not sign the Union had "enough position and power" to jeopardize the Respondent's business "with the Prince Georges County Government." Following these statements according to Braiterman. 3It appeared at the hearing that seven of those claimed were those who had signed cards for the Union ARTS & CRAFTS DISTRIBUTORS, INC. 177 We told him we would think this over. And he said we would have to make up. our mind and sign a contract fast or within two days they would strike. Braiterman also testified further: I stated we would have to sit down and work out an election procedure and decide what would be the appropriate unit. We had no discussion as to what the appropriate unit would be, because that is when he said he would strike. [The following Wednesday.] The meeting ended on this note. That night Braiterman telephoned Butler and told him that the Respondent would not agree to a contract: because we doubted that they had a majority, that the only thing we could do was set up some sort of procedure to have an election to see if he had a majority; until his majority was proven, we were not going to bargain with him over contracts; and if his only alternative was to strike on Wednesday, he should go out and strike. Union Business Manager Butler, with respect to the above-mentioned June 6 meeting, testified that he informed the Respondent's representatives "it was my hope that we could withdraw said petition [Case No. 5-RC-3144] election." According to Butler the terms of a contract were discussed but the parties did not "come to" any agreement. On cross-examination, Butler, after considerable testimony patently intended as. evasive and misleading, admitted that at the June 6 meeting in his (Butler's) office he had knowledge of the Respondent's previous meeting with its employees. Butler testified Q. (By Mr. BRAITERMAN.) When our conversation in our meeting opened up on June 6th, what was the first thing you told us about-well, didn't you in the beginning of that meeting relate what had taken place in a meeting between the executives of the company and the employees? A. II did have a discussion with you, yes. Q. You knew all about what took place at that meeting that afternoon, didn't you? A. I had been told of some of the items that were discussed. Q. Which items were you told about then? A. I was told about, one, sick leave being paid as Christmas bonus at or around December for unused sick leave. That had been discussed. I had been told that the company was considering reducing the work week from 45 hours to 40, with the same pay. I had been told that the company was. considering putting in air conditioning in the plant and a new loading dock, and in general making conditions easier for the people . And if there was anything they wanted; to come to management, not to go to the outside. Those items were discussed. Butler admitted that the Respondent also informed him of the proposed changes to, be granted the employee and told him when they would become effective. In the opinion of the Trial Examiner the character of Butler's testimony can be plainly seen in the following example, which was typical: Q. (By Mr. BRAITERMAN.) Wasn't there a discussion as to what constituted a proper unit on Monday, June 6th, in your office? A. Yes. Q. And there was some question as to whether the unit-wasn't there some discussion about the whole plant being a single unit? A. No. Strike that. Yes, you brought that question up. Q Because of the integrated operation and it being a small company?' Didn't we discuss it from that point of view? The WITNESS. Off the record? TRIAL EXAMINER: Well, did you or didn't you? What is the answer? The WITNESS: Yes, but- TRIAL EXAMINER: There can't be any "Yes, but." Was there that kind of conversation or wasn't there? The WITNESS: Yes. TRIAL EXAMINER: All right. Q. (By Mr. BRAITERMAN.) Not .to stifle free speech, whatever you want to "but," "but" it. A. The items you are bringing up were your suggestions , not mine. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Butler also admitted making the strike threat at the June 6 meeting in his office, and further on cross-examination testified: Q. (By Mr. BRAITERMAN.) Didn't I state to you clearly and unequivocally that if we had the election and you represented a majority, that Mr . Ellerin and I-that Mr. Charles Ellerin and I would sit down and negotiate a contract with you? A. You said words to that effect. The Trial Examiner finds, on the entire record and from his observation of Braiterman and Butler while testifying , that Braiterman's version of the meeting between the Respondent and Butler, in Butler's office on June 6, is the more accurate version thereof. He therefore credits Braiterman and finds that on June 6 the Respondent refused to recognize or bargain with the Union until there had been a determination by the Board as to the appropriate unit and the Union 's majority in accordance with the petition for certification filed by the Union. The Trial Exam- iner further finds that on June 6, the Union had full knowledge of the meeting the Respondent had with certain of its employees earlier on said June 6, and all state- ments made and benefits granted by the Respondent to its employees at said meeting as hereinbefore found. Butler further testified that after the June 6 meeting he again met with the Re- spondent's attorney and discussed a proposed contract, however, on cross he changed this to have been not a meeting but a telephone conversation. Attorney Braiterman testified that following the June 6 meeting aforesaid he telephoned Butler on Friday, June 10, that the Respondent would not recognize the Union because "They did not think the union had a majority"; that Butler then stated that the Union would strike the Respondent's plant on Monday June 13; and that Butler again called him on Sunday morning saying the Union was striking the next day to which he (Braiterman ) replied that nothing further could be done as the Respondent would not sign a contract because it doubted the Union's majority status. Braiterman further testified that during the afternoon of that day (Sunday) the Union's attorney (John J. McBurney ) called him and suggested "a consent election" in return for "calling off the strike ." During this conversation , according to Braiterman the parties agreed on a 14-man appropriate unit of "truckdrivers, warehousemen and office-warehouse." He testified: This was the result of compromise and suggestion by Mr. McBurney as to who the unit would be, because we agreed in principle on a consent election. The union wanted a quick election . And frankly we wanted a quick election so the people would stop all this talking and dissension in the plant. However the arrangement fell through because McBurney then stated that the Union's offer of a "consent election" meant an election not by the Board but inde- pendently by the Union and the Respondent. The Respondent refused to enter into an agreement for this type of election and it was then agreed (on the next day) to enter into a consent-election agreement under the auspices of the Board's Fifth Region. Butler's testimony with respect to the Union's offered election is interesting. Butler testified: I instructed Mr. McBurney to call Mr . Braiterman and tell him that if he would not give us the election in the plant between the Union and the company as was originally discussed without the National Labor Relations Board Examiner being present, and if he was going to renege on his word , I had been given the authority by the men to strike on Monday morning. However, Butler contended that these instructions to the Union 's attorney were given ,,on Wednesday, after the June 6, meeting," but as the attorneys did not confer until Sunday, June 11, with respect to an election by "consent" in a manner so as to circumvent the Board and disregard the petition (Case No. 5-RC-3144 ) Butler's instructions to Attorney McBurney based on the fact that the Respondent had al- ready indicated "he was going to renege on his word " to agree to such an election seems queer, as does his later testimony on the subject that he talked to Braiterman regarding this proposed election either on May 31 or June 1, by telephone: TRIAL EXAMINER: Let me get one thing straight. You talked to the company or to the company's attorney about having an election not under the auspices of the Board? The WITNESS (Mr. BUTLER ): Yes, sir. TRIAL EXAMINER : Did you have that conversation before or after you filed the petition with the Board? ARTS & CRAFTS DISTRIBUTORS, INC. 179 The WITNESS: Before and after. TRIAL EXAMINER: Before and after, both? The WITNESS: Yes, sir. On cross-examination Union Representative Butler further testified: Q. (By Mr. BRAITERMAN.) You say you first had this discussion with me before you filed your petition with the Board? A. Yes, sir. Q. The first discussion of an election without the Board? A. No, sir, not that as such, no. What I meant to say was before we had our first meeting on June 6th I had discussed it with you. Q. Not before you filed the petition? A. No. But I talked with Mr. Ellerin. The Trial Examiner finds on the entire record and from his observation of the witnesses that the first demand for an election to determine a bargaining representa- tive for certain of the Respondent's employees was made by the Union's attorney on Sunday, June 11, and that the demand was refused by the Respondent. Attorney Braiterman further testified without contradiction and credibly that the conversation between Attorney McBurney and himself on Sunday, June 12, closed with McBurney's statement that he would mail a form of the proposed agreement as well as citations of legal precedent to sustain his contention to Braiterman; that on Monday or Tuesday, June 13 or 14, he (Braiterman) received the agreement form and "I immediately called Mr. McBurney and stated that this arrangement was not satisfactory due to the fact that we would have to have a consent election under the Board." The parties finally agreed to meet at the Board's Regional Office on June 16. At this meeting, a stipulation for certification upon consent election was signed by the parties, a 14-man unit, naming the eligible voters was also agreed to,4 and the elec- tion scheduled for June 23, 1960, however, on June 21, the Union withdrew its petition and filed the charge herein, docketed as Case No. 5-CA-1726. Union Vice President and Business Manager Butler testified that the Union with- drew its petition in Case No. 5-RC-3144, thus annulling the consent-election agree- ment, after he learned, The Company had reduced the work week of the men that we had agreed were in the unit, which was the warehouse men and drivers. They had been put on a forty hour week instead of the forty-five hour week that was in effect when we originally petitioned the Board. The men were receiving the pay for forty hours that they normally had re- ceived for forty-five. That condition was in effect. It has been found herein that on June 6, the first time Butler and the Respondent met, Butler "had full knowledge of . . . all benefits granted by the Respondent to its employees." It is also clear that Butler had been advised by the Respondent that these benefits would be made effective on June 9. The unit agreed upon by the parties in the consent-election agreement was: All warehouse employees and truckdrivers employed at Respondent's College Park, Maryland, plant, excluding all office clerical employees, guards, watch- men, professional employees, and supervisors as defined in the Act. Fourteen employees were named as eligible voters in the unit; seven of those named being the signers of the cards submitted by the Union as proof of its status. As has been found herein Attorney Braiterman testified without contradiction that the appropriate unit and those individuals who composed it was agreed upon as a compromise suggested by the Union's attorney because both parties wanted a consent election. C. Additional interference, restraint, and coercion Employee Henry M. Gotschall testified that "four days or a week" following the June 6 meeting of the Respondent and employees, Manager Albert Ellerin and he engaged in a "general conversation" which Gotschall characterized as "a casual thing . . . friend to friend" during which, according to Gotschall, "I think he asked me point blank if I had joined." 4 Respondent's Exhibit No. 1-lA. 614913-62-vol. 132-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Carroll Scott testified that following the June 6 meeting, at a time not more definitely fixed, he had a conversation with Manager Ellerin during which "we started out talking about the Union, and ended up talking about flowers." He further testified, "We argued about the sick leave, hospitalization and stuff like that"; that Ellerin asked, "Why did I need someone else to talk for me when I could talk for myself?" He testified that during the course of the conversation: Well, we talked about hospitalization. He told me about his plan. He asked me about the union's hospitalization, which I couldn't answer because I didn't ask them any questions about it. The testimony of Gotschall and Scott was not denied and is credited. Inasmuch as these two conversations were related to the benefits granted the employees, found to have been made by the Respondent from an unlawful motive, these conversations must also be found to have been violative of the Act. The Trial Examiner so finds. Attorney Braiterman volunteered the testimony that during the week following the signing of the consent-election agreement the Respondent "sent out 3 letters" to undisclosed employees. According to Braiterman, "about June 19 or 20"; And Mr. Butler complained that the letters made certain representations about Mr. Hoffa and other union leaders; and he thought that that was very unfair, because the men that we mentioned had nothing to do with their local. And theirs was just a little local unit with clean leadership, and these people had nothing to do with their local. The letter was not produced. On cross-examination Union Representative Butler admitted making the complaint to Attorney Braiterman. Butler testified: Q. Wasn't the complaint principally this, in effect: Why do you fellows talk about Jimmy Hoffa all the time? Didn't you complaint because they had writ- ten some letters about James Hoffa? A. I may have discussed that, yes. * * * * * * * Q. Didn't you tell me they should not keep talking about Hoffa; that he has nothing to do with your little local; isn't that true? And that it wasn't fair to keep talking about Hoffa with respect to your local union? A. Yes, sir. The above conduct was not alleged as an unfair labor practice but having been fully litigated the Trial Examiner finds that all the evidence in this record with respect to the "3 letters" (not produced) sent out by the Respondent (to undisclosed in- dividuals) and making mention of "Mr. Hoffa" in no way discloses a violation of the Act by the Respondent. Conclusion The complaint, as herein set out, alleges in effect that after due request for recog- nition by the Union on May 31, 1960, and thereafter the Respondent on the same dates and down to and including the date of the issuance of the complaint, "did fail and refuse and continues to fail and refuses to bargain collectively in good faith with the Union as the exclusive representative of all employees of Respondent" within an appropriate unit. In evaluating the evidence herein brought forward to sustain the 8(a)(5) allega- tion the Trial Examiner must bear in mind the fact that an unfair labor practice before the Board is not an equity proceeding and must also be mindful that the doctrine of estoppel has no weight as a deciding factor to a Board decision, how- ever the Board as an administrative agency of a law is under an obligation to pre- vent its processes from being perverted and a high standard of honor be maintained in the use of those processes. In the instant matter before the Union afforded the Respondent an opportunity to answer its claim of majority representation, to examine its proof, or to confer on the mutual problem, it filed a petition for an election with the Board at no time offering its "cards" to the Respondent for inspection and apparently relying on the filing of its petition with the Board as notice of its claim to employee representation. At its very first contact with the Respondent (other than one short -telephone conversation) the Union disregarded the petition it had filed with the Board, in which it contended for a definite unit, and sought to include all the Respondent's employees within the unit, and when the Respondent stating that it challenged this kind of a unit and doubted the Union's majority in any unit of its employees the Union threatened "economic action," after its threatened action failed to move the ARTS & CRAFTS, DISTRIBUTORS, INC., , , 181 Respondent from the position, that the matter should be settled by a Board deter- mination and election, the Union continuing to threaten a strike offered a "consent election" to which the Respondent agreed in order to obtain "a quick decision." It is quite clear the Respondent was tricked into an agreement on the unit and an eligibility list of'named individuals, following which the Union then attempted to change this "consent" to a "consent election not under the auspices of the Board." Upon realizing the Union's maneuvering to circumvent its own petition and despite a threat of a strike on a definite date the Respondent still refused to proceed in any way except in a Board determination whereupon the Union then agreed to a Board determination under its petition and the parties signed a stipulation for certification upon consent election, to which the Board agent was a party. The stipulation set out the unit and an eligibility list of voters was agreed to. This was on June 16. The petition was withdrawn by the union on June 21, and the stipulation nullified. It is true that the Respondent has been found to have engaged in 8(a) (1) vio- lation , however the Union had full knowledge of this on June 6, when it first met with the Respondent, however it is on these 8(a)(1) violations (herein discussed and found) that the Union contends it must now be recognized. This loses sight of the fact that the&Respondent was tricked into signing the consent-election agreement, and ignores the fact that the agreement was entered into was on a quid pro quo basis. During oral argument the Trial Examiner and the General Counsel engaged in the following: TRIAL EXAMINER: They come in to the Respondent, and they say, "We want to be recognized for an appropriate unit," and the Respondent says, "Let's have an election." That is what happened, isn't it? Mr. WEscorr: Right. TRIAL EXAMINER: And the Respondent never receded from that position "let's have an election " Mr. WEscorr: Right. The Trial Examiner pointed out during the course of oral argument that the Union had 7 signed cards which were first shown to the Respondent at the hearing; that the Union's agreed-upon list contained 14 named individuals and remarked that 7 is not a majority of 14. The General Counsel then argued: The fact that there was a consent agreement and a list agreed upon means nothing. The union, for various reasons of strategy, may have agreed upon certain people. They may have later learned that certain people should not have been included in the list. This happens every day. And the consent agreement and the eligibility list does not mean that the union waived any right at all. The General Counsel can of course cite precedent for his contention, however, in the opinion of the Trial Examiner the Board may well on all the circumstances herein considered if it must lend its processes to, and support the position of, a complainant whose entire conduct clearly shows an absence of good faith; a complainant playing a game with a stacked deck and using the Board as a decoy and a cover. It may well be that the 14 named individuals do not all fall within the unit agreed upon in Case No. 5-RC-3144, but the agreement was nullified by the Union. The grounds stated were clearly, a mere pretext, and in the opinion of the Trial Examiner the parties after the withdrawal were back in their original places, there was no agree- ment, a Board decision on unit and a determination through the medium of a Board- conducted election was necessary, and the claimed representation status in a unit and refusal to bargain therefore on demand and offer of proof is based on a contrived fallacy. The argument advanced by the General Counsel has no merit. Under all the circumstances in the case, there can be no other conclusion that the Respondent honestly doubted the Union's majority status, within an undetermined appropriate unit, and that the Respondent sought a determination of unit and ma- jority by the Board, as originally requested -by the Union; the Trial Examiner will therefore recommend that the complaint be dismissed insofar as it alleges that the Respondent refused to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit and did thereby engage in and is thereby engaging in unfair labor practices within the meaning of *Section 8(a)(5) of the Act. - Concluding Findings The Trial Examiner having found that the Respondent offered and granted bene- ficial changes in hours, wages, and working conditions to certain of its employees in order to influence their activities on behalf of and membership in, the Union, and 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having further found that the Respondent interrogated two of its employees with respect to their union membership, the Trial Examiner therefore finds that by such conduct the Respondent crossed the boundary into the prohibited area of interference, restraint, and coercion in direct violation of the rights guaranteed in Section 7 of the Act, more particularly Section 8(a) (1) thereof. The Trial Examiner further finds that the Respondent has not engaged in any of the other unfair labor practices alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, the Trial Examiner recommends that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Arts & Crafts Distributors, Inc., College Park, Maryland, is engaged in com- merce within the meaning of the Act. 2. Warehouse Employees Union Local 730, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the 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. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in any alleged unfair labor practice not spe- cifically found herein. [Recommendations omitted from publication.] Abe Breitbart, Sal Cooper and Others d/b/a Venetian Manu- facturing Company, and Peptex, Inc., Starlight Trading, Inc., & Pat Fashion, Inc.' and Local 917, International Brotherhood of Teamsters, Petitioner. Case No. O-RC-11093. July 14, 1961 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Haywood E. Banks, 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. 1 The Employer's name appears as amended at the hearing. The partners own all the stock of Peptex, Inc, Pat Fashion, Inc, and have some interest in Starlight Trading, Inc, all of which maintain an address at 1370 Broadway, New York Peptex is engaged in the bookkeeping aspects of the various enterprises ; Pat Fashion Is engaged in mer- chandising Starlight Trading is a separate operation, unrelated to the other enterprises ; -no motion was made to delete its name from the petition. 132 NLRB No. 13.