Bilinski Sausage Manufacturing Co., Inc.

BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 229 2. Sales Drivers, Sales & Service Local 176, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. 3. The evidence adduced does not establish that Respondent violated Section 8(a)(1) of the Act in the manner specified in the complaint ( as amended at the hearing). [Recommendations omitted from publication.] Bilinski Sausage Manufacturing Company, Inc. and Amalgam- ated Meat Cutters, Butcher Workmen and Affiliated Crafts of North America, District Union Local No. 1, AFL-CIO and Local 294, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America and Independ- ent Employees Association of the Bilinski Sausage Mfg. Co., Inc., Party in Interest. Cases Nos. 3-CA-1443 (formerly 2-CA- 6797) and 3-CA-1444 (formerly 2-CA-6800). July 19, 1961 DECISION AND ORDER On November 28, 1960, Trial Examiner W. Gerard Ryan 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 further found that the Respondent had not engaged in any unfair labor practice within the meaning of Sec- tion 8(a) (2) of the Act, as alleged in the complaint, and recom- mended dismissal of the allegation pertaining thereto.' Thereafter, the General Counsel and the Respondent filed exceptions to the In- termediate Report and briefs in support thereof.2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- -member panel [Chairman McCulloch and Members Leedom and Brown]. 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- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's 'findings, conclu- sions, and recommendations, except as modified herein. 1 As no exception was taken to the Trial Examiner's finding that the Respondent did not violate Section 8(a)(2), we adopt such finding pro forma Accordingly, we shall dismiss the 8(a) (2) allegation of the complaint. 2 As the complaint did not allege that a strike, commencing on February 15, 1960, was an unfair labor practice strike, and as such issue was not litigated, we make no findings .on the General Counsel's exceptions based on the Trial Examiner's failure to find that the strike was an unfair labor practice strike and on the Trial Examiner's .failure to recommend relief for the stnkers 132 NLRB No. 18. 0 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We find, as did the Trial Examiner, that the Respondent vio- lated Section 8(a) (1) of the Act by interrogating its employees as to their union membership and by threatening an employee with dis- charge for joining a union, as more fully set forth in the Intermediate Report. 2. With respect to the allegation of 8(a) (5) the Trial Examiner found that, on July 17, 1959, when Bilinski met with the union rep- resentatives, Bilinski knew, as he testified, from the information sup- plied to him by an unnamed employee on July 16, and from the response of the employees at the meeting called by Bilinski on the same day, that his employees had organized. He further found, in view of his independent 8(a) (1) findings, that the Respondent's re- fusal to negotiate with the unions on July 27,3 and at all times there- after, was not based on any bona fide doubts as to the appropriateness of the proposed units or the unions' majority status, respectively, but was intended to gain time within which to undermine their repre- sentative status. Accordingly, he concluded that the Respondent violated Section 8 ( a) (5). We agree with the Trial Examiner that the Respondent refused to bargain within the meaning of Section 8(a) (5), and for an additional reason.4 As we view the case, we have here a respondent who insists on an election for the asserted reason that he wants a determination of the union's majority status when, as the Trial Examiner found, he has no genuine doubt as to such majority status. Thus, on July 16, 1959, an unnamed employee informed Bilinski that the Respondent's em- ployees had organized. Later the same day, in reply to Bilinski's interrogation, the employees as a body confirmed the fact that they had joined a union. The next day, at the meeting attended by Bilin- ski, the Teamsters representative laid the authorization cards of both unions before the Respondent's representatives and offered to allow a card check by an impartial person. The Respondent did not exam- ine the cards. While this meeting was in progress, the Respondent's truckdrivers were engaged in a strike and they did not resume work until the Respondent agreed to negotiate with the unions. In the notice to the employees, posted on July 27, 1959, the Respondent stated, in part . . . "We thought that if you'd all signed cards we had to sign the papers, so we signed ...." s At the hearing in 8 We correct the Trial Examiner 's inadvertent error in dating the refusal to bargain from July 27 instead of July 28 * Member Leedom , however, would base the finding of unlawful refusal to bargain solely on his colleagues' "additional" reason. In his view, the theory of the Trial Examiner, which his colleagues adopt, is insufficiently supported by the evidence. 5 In Brown Truck and Trailer Manufacturing Company, Inc , et at , 106 NLRB 999, 1001 , the Board stated- "In the 18 years that this Board has administered the Act, it has consistently-and with judicial approval and legislative acquiescence-held that a union's majority status can properly be determined by membership or authorization cards " BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 231 this case, Bilinski admitted that, on July 17, 1959, when he signed the recognition forms, he felt that the Meat Cutters "represented" the Respondent's production and maintenance-employees and that he "believed" the Teamsters' representative that the Teamsters repre- sented the Respondent's drivers. Nevertheless, on July 28, 1959, the Respondent informed the unions that it refused to recognize the unions as representatives of the employees because, as stated by the Respondent, of the absence of "proper proof that your unions in fact represent a majority of them," and announced that it had filed peti- tions for investigation of their status as representatives. In United Mine Workers of America v. Arkansas Oak Flooring Co., the Supreme Court stated : (351 U.S. 62,74-75) Section 7 recognizes the right of the instant employees "to bargain collectively through representatives of their own choos- ing," and leaves open the manner of choosing such representatives when certification does not apply ... . Section 9 (a) provides that representatives "designated or se- lected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employ- ment. ..." Under those sections and by virtue of the conceded majority designation of the union, the employer is obligated to recognize the designated union .. . . As in the cited case, we find that the Respondent's insistence on certi- fication is no defense. Since the Respondent had no genuine doubt as to the majority status of the unions, its insistence upon elections for the sole reason of proving something, of which it was already con- vinced, is to impose an unnecessary obstacle to collective bargaining. Such a course of conduct falls short of meeting the obligations of the Act to recognize and negotiate with the designated union and amounts to a refusal to bargain in good faith. Accordingly, we find that the Respondent refused to bargain with the unions within the meaning of Section 8(a) (5) by refusing to recognize the unions as the exclusive representative of the employees in the respective units on and after July 28,1959. 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, Bilinski Sausage Manufacturing Company, Inc., Cohoes, New York, its officers, agents, successors, and assigns, shall : 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with Amalgam- ated Meat Cutters, Butcher Workmen and Affiliated Crafts of North America, District Union Local No. 1, AFL-CIO, as the exclusive representative of all its employees in the following appropriate unit : All production and maintenance employees employed by the Respond- ent Employer at its Cohoes plant, exclusive of all other employees and all supervisors as defined in Section 2(11) of the Act. (b) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive representative of all its employees in the following appropriate unit : All driver- salesmen employees of the Respondent Employer employed at its Cohoes plant, exclusive of all other employees and all supervisors as defined in Section 2 (11) of the Act. (c) Interrogating employees concerning their membership in or activities on behalf of the above-named unions, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act; or threatening to discharge employees for their membership in or activities on behalf of the above-named unions, in violation of Section 8(a) (1) of the Act. (d) In any like or related manner interfering with, restraining, or coercing such employees in the exercise of the rights guaranteed in Section 7 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 the above-named unions, respectively, as the exclusive representatives of all the em- ployees in the respective appropriate units, and embody in a signed agreement any understanding reached. (b) Post at its plant, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent or its representative, be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. 6In 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 " BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 233 (c) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this. Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, to the extent that it al- leged that the Respondent violated Section 8(a) (2) of the Act, be, and it hereby is, dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL, upon request, bargain collectively with Amalgamated Meat Cutters, Butcher Workmen and Affiliated Crafts of North America, District Union Local No. 1, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance, employees employed at the Cohoes plant, exclusive of all other employees and all super- visors as defined in Section 2(11) of the Act. WE WILL, upon request, bargain collectively with Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive representative of all employees in the bargaining unit described below, with re- spect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is : All driver-salesmen employed at the Cohoes plant, exclusive of all other employees and all supervisors as defined in Sec- tion 2 (11) of the Act. WE WILL NOT interrogate our employees concerning their mem- bership in or activities on behalf of the above-named unions, or any other labor organization, in a manner constituting interfer- ence, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT threaten to discharge employees for their mem- bership in or activities on behalf of the above-named unions in violation of Section 8 (a) (1) of the Act. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Unions, or any other labor organizations, to bar- gain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from be- coming members of the above-named unions, or any other labor or- ganization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, as modi- fied by the Labor-Management Reporting and Disclosure Act of 1959. BILINSKI SAUSAGE MANUFACTURING COMPANY, 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 This proceeding, with all parties represented except Independent Employees As- sociation of the Bilinski Sausage Mfg. Co., Inc., was heard before W. Gerard Ryan, the duly designated Trial Examiner, at a hearing held in Albany , New York, on April 21 , 22, 25 , 27, 28, and 29 , 1960. Prior to the hearing Respondent Employer's motion for a bill of particulars was denied in toto by Trial Examiner Thomas S. Wilson. The issues presented by the pleadings were whether the Respondent Employer, Bilinski Sausage Manufacturing Company, Inc., violated Section 8(a)(1), (2), and (5) of the Act. The General Counsel and counsel for Bilinski Sausage Manufac- turing Company, Inc., presented oral argument. Counsel for Bilinski Sausage Manu- facturing Company, Inc., filed a brief. No brief has been received from the General Counsel. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Bilinski Sausage Manufacturing Company, Inc., herein called Respondent Em- ployer, is and has been at all times herein mentioned , a New York corporation maintaining its principal office, plant, and place of business at 41 Lark Street, in the city of Cohoes, State of New York, herein called the Cohoes plant, and is now and has been continuously engaged at said plant and place of business in the manu- facture, sale, and distribution of sausages and other meat products . During the year ending December 31 , 1958 , the Respondent Employer in the course and con- duct of its business operations, caused to be purchased, transferred , and delivered BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 235 to its Cohoes plant, meat and other goods and materials valued at in excess of $400,000, of which goods and materials valued at in excess of $200 ,000 were trans- ported to said plant in interstate commerce directly from States of the United States other than the State of New York. I find the Respondent Employer is, and has been at all times material hereiii, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act for the Board to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED 1. Amalgamated Meat Cutters, Butcher Workmen and Affiliated Crafts of North America, District Union Local No. 1, AFL-CIO (herein called Meat Cutters), is a labor organization within the meaning of the Act. 2. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (herein called Teamsters), is a labor organization within the meaning of the Act. 3. Independent Employees Association of the Bilinski Sausage Mfg. Co., Inc., is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Violations of Section 8(a) (1) The complaint alleged that in violation of Section 8 (a) (1) on or about July 16, 1959, Respondent Employer, through John Bilinski, its general manager and secre- tary, interrogated its employees concerning their membership in, activities on behalf of, and sympathy in, Meat Cutters and Teamsters. Following the information from an unnamed employee on July 16, 1959, John Bilinski later that afternoon called a meeting of the employees and learned from them that a majority, if not all, of the employees had organized. While he did not then individually interrogate them as to whether they had joined, he asked them collectively, in substance, if what he had beard was true, that they had joined a union. He was assured by them that his information was correct. He then told them how his feelings had been hurt by their lack of confidence in him by not com- ing to him first if they had any complaints or problems. Further, on or about July 20, 1959, John Bilinski called employee Mary Flavin into his office and remarked that he thought they were good friends. When she replied that they were, he asked why she joined the Union. She answered that everybody else had joined, so she did too. Bilinski denied that he asked the employees at the meeting of July 16 if they had joined the Union and denied that he had the conversation with Flavin on July 20. I do not credit his denials and I do credit William Mein with respect to that part of his testimony that Bilinski had interrogated the employees collectively at the meeting as set forth above, and I credit that part of Mary Flavin's testimony that she was interrogated by Bilinski on July 20. I find that by the foregoing inter- rogation the Respondent Employer violated Section 8(a)(1) of the Act. The complaint further alleged that in violation of Section 8(a)( I) the Respond- ent Employer through its assistant treasurer, Adele Masenas, in or about the period July 20 to 23, 1959, interrogated its employees concerning their membership in, activities on behalf of, and sympathy in, Meat Cutters and Teamsters; and that in or about the same period, Adele Masenas threatened its employees with discharge if they became or remained members of Meat Cutters or Teamsters or gave any assistance or support to said unions. On the basis of the testimony of Walter Dob- romilskyj, which I credit, I find that on or about July 20, 1959, Masenas asked him if he had signed a card and he replied that everybody had signed and he had signed too. Upon hearing that she told him that she could fire him for signing the card and he replied that if she wanted to fire him she could do so. By such interroga- tion and threats, I find that the Respondent Employer thereby violated Section 8(a)(1) of the Act. B. The alleged violation of Section 8(a) (1) and (2) The complaint further alleged that the Respondent Employer violated Section 8(a)(1) and (2) of the Act in that during the period from July 20 to 23, 1959, its general manager and secretary, John Bilinski, urged and encouraged employees of I In addition to the unfair labor practices as found, there is controversial testimony in the record relating to conversations between employees and corporate officers which I do not resolve and make no findings thereon In view of the fact that such conversations are not alleged in the complaint to be unfair labor practices 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Employer to form and join Employees Association; and that on or about July 24, 1959, John Bilinski permitted Employees Association to conduct its meetings and to engage in organization activity at the Cohoes plant, and to solicit for members among the employees at its Cohoes plant during working hours. I find the proof insufficient to establish that John Bilinski permitted Employees Association to conduct its meetings and to engage in organizational activity at the Cohoes plant and to solicit for members among the employees at its Cohoes plant during working hours. Other than the employees' meeting in the sausage kitchen on July 24, 1959, after working hours, there is no evidence that John Bilmski per- mitted Employees Association to conduct its meetings and to engage in organiza- tional activity at the plant and to solicit members during working hours. With respect to the meeting of the employees (not the Employees Association for it had not then been formed) in the kitchen on July 24, William Mein testified that he, and employees Favreau and Kopcha, asked permission to use the kitchen for a meeting of the employees and Bilinski granted it; that the meeting took place in mid-afternoon and there were no company officers or other management personnel present. Favreau contradicted Mein by testifying that he, not Mein, went to see John Bilinski and asked him for the use of the kitchen. Bilinski testified that Kopcha (not Mein or Favreau) did not cask but informed Bilinski they were going to have a meeting in the kitchen; that it was not uncommon for an employee to use company property or facilities without advance permission. Bilinski testified that Kopcha did not indicate the purpose of the meeting and Bilinski did not ask or know the purpose. Bilinski testified further the meeting took place about 4:30 p.m., after working hours. At the meeting all but two employees were there. Mein, Kopcha, and Favreau spoke at the meeting. Mein told the employees what Kowalchyk and his minister, Reverend Ross, had said.2 Mein testified that everyone there voted to contact Gray, an attorney in Troy, and they instructed Kopcha to contact Gray. Thus it was at this meeting that the employees voted to form their own association and get in touch with Attorney Gray for that purpose. Favreau, called by General Counsel, testified that about July 20 to 27, John Bilinski asked "Why we couldn't get up a union of our own to be handled the same way as an outside union" and said "They could give as much to us as any union out- side could, and it would keep the group inside like it was before, one happy family, providing we wouldn't head for the moon," and Favreau agreed with him. He con- tinued to testify that about a week later, July 27 to August 3, he had another con- versation with Bilinski but could not recall what was said in it except that an inde- pendent or company union "pretty near the same as the first time" was discussed, and Favreau told Bilinski that "we did get somebody to take care of the matter." Then, after testifying that it was after these conversations that the employees formed the independent union, Favreau testified in self-contradiction that the first mention he heard of any independent movement came from a group of employees; that no company officer mentioned it before this time; and continued that he, Favreau, could not say he ever heard Bilinski suggest to any employee, including him- self, that they form an independent union; and that all the conversations with John or Walter Bilinski or Adele Masenas came after the employees had decided to form an independent union. William Mein testified at one point that his conversations with Kowalchyk and Reverend Ross followed a conversation on July 20 with John Bilinski in which, ac- cording to Mein, Bilinski had originated the idea of an independent union. But on cross-examination, confronted with his prehearing affidavit, Mein finally admitted that he got the idea of an independent organization, as well as Attorney Gray's name, from both Kowalchyk and Reverend Ross before he ever discussed it with Bilinski. With respect to the July 20 conversation, Mein testified that John Bilin- ski had a conversation with him, Favreau, and Kopcha in which Bilinski suggested forming an independent union. Mein, however, is contradicted by the testimony of Favreau that he could not recall Bilinski ever suggesting to any employee, including himself, that they form an independent association. Employee Kopcha did not testify regarding such conversation. John Bilinski testified there was no such conversation and that he made no such suggestion In view of the conflict in the testimony of Mein and Favreau, I credit the testimony of John Bilinski on this point and find 2Kowalchyk was a customer on Mein's sales route who suggested to Mein on July 17 that the employees form an independent association and mentioned Attorney Gray in Troy as the person to be contacted in that regard. Reverend Ross Is Mein's minister who, in a conversation with Mein shortly thereafter, expressed his disapproval of the Teamsters. BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 237 that no such conversation took place and that no report of the employees meeting in the kitchen on July 24 was made to him; and that Bilinski's first information about an independent organization was on Monday, July 27, when it was being freely discussed by employees in the plant and he heard it because he works side by side with them all the time. I further find that John Bilinski did not, as alleged in the complaint, permit Em- ployees Association to conduct its meetings at the plant. The one meeting of em- ployees in the plant kitchen on July 24 after working hours was permitted by Bihnski; but, according to that part of Bilinski's testimony which I credit, the purpose of the meeting was not indicated to him and he did not ask or know the purpose of the meeting. I shall, therefore, recommend that paragraphs 8 and 18 of the complaint which alleged a violation of Section 8(a) (2) of the Act be dismissed. C. The refusal to bargain The complaint alleged that at all times since on or about July 17, 1959, the Re- spondent Employer refused and has continued to refuse to bargain collectively with Meat Cutters as the exclusive representative of the production and maintenance employees constituting an appropriate unit and with Teamsters as the exclusive representative of the drivers and warehousemen employees constituting another appropriate unit. The answer of the Respondent Employer admitted the allegations of the complaint that all production and maintenance employees of the Respondent Employer and that all drivers and warehousemen employed by the Respondent Employer consti- tute respectively units appropriate for collective bargaining. At the hearing it de- veloped that there were no warehousemen employed by the Respondent Employer and it was stipulated that the three driver-salesmen constituted an appropriate unit. The complaint alleged and the answer of the Respondent Employer admitted that on or about July 17, 1959, Meat Cutters and Teamsters requested recognition as bargaining representatives. On or about July 10, 1959, employee William Mein, a driver-salesman employed by Respondent Employer, communicated with Marvin Pizzo, a representative of Meat Cutters, with a view to meeting with the employees. Upon learning that Mein and two others were driver-salesmen, Pizzo said he would bring with him a repre- sentative of Teamsters. On July 13 all the driver-salesmen and a majority of the production and maintenance employees met at the home of William Mein and all the employees present signed cards designating Teamsters and Meat Cutters re- spectively as their collective-bargaining representatives. It was stipulated that on or about July 16, 1959, there were employed 3 driver-salesmen and 15 production and maintenance employees. As already discussed, supra, on July 16, 1959, an unnamed employee who asked that his name not be divulged, informed John Bilinski, the secretary and general manager of the Respondent Employer, that the employees had organized and wanted a union . The employee called this a dirty deal but did not amplify his remarks or identify any of the employees and was not asked to do so by Bilinski Later that afternoon Bilinski called a meeting of the employees after working hours in the sausage kitchen and almost all of them were present but no roll was taken. The meeting lasted 15 or 20 minutes and was conducted on the premise that Bilinski knew his employees had organized. Bilinski said to them, in effect, that he had heard they had joined a union and inquired if that were true. He was answered in the affirmative At the meeting, Bilinski expressed his hurt at their lack of confidence in him and he testified that he knew they did not have confidence in him because of "the mere fact that they had organized without my knowledge." Discussion was had with reference to the employees' dissatisfaction, chief of which was the fact that they had not received pay for holidays which fell on Saturdays (nonworking days) and some minor matters Soon after that meeting was over, Mein telephoned to Pizzo and told him of the meeting and it was agreed that they would seek recognition on the morning of the following day, July 17. About 8 a.m. on July 17, 1959, Marvin Pizzo, representing Meat Cutters, and Ed- ward W Smith, representing Teamsters, visited the plant office where they met with John Bilinski, secretary and general manager; Walter Bilinski, treasurer; and Adele Masenas, assistant treasurer. The answer of the Respondent Employer admits the allegations of the complaint that on or about July 17, 1959, Meat Cutters and Teamsters requested Respondent Employer to bargain collectively with respect to their appropriate units respectively. Pizzo had with him a majority of the Meat Cutters cards signed by the production and maintenance workers, and also the Teamsters signed cards representing all the 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD driver-salesmen. Pizzo testified he placed all the cards on the table at which John and Walter Bilinski and Adele Masenas were sitting and offered to have them checked by any impartial person, e.g., minister, priest, or rabbi. Pizzo's prehearing affidavit given to the Board sets forth he had the cards in his hand but omits any statement they were placed on the table. John and Walter Bilinski and Adele Masenas testi- fied they did not see any cards until they were produced at the hearing. After stating that he had cards from a majority of the employees, Pizzo handed John Bilinski a recognition agreement form covering Meat Cutters only, asked him to sign it, and told him it was not binding but only a matter of form. Bilinski tele- phoned the Respondent Employer's general attorney, Walter Burke, finally reaching him at home after an hour of trying. Bilinski summarized the situation to Burke and read him the recognition form in question; told Burke that Pizzo had said it was not a binding agreement; and asked Burke if the Company should sign it. Pizzo asked to speak to Burke and told Burke "what our purpose was" and that "we had a majority of the people." Pizzo told Burke the paper was not binding. Burke asked Pizzo to put Bilinski back on the telephone and then Burke told Bilinski he could sign the recognition form if he was willing to rely on Pizzo's statement that it was not binding. Teamsters was not mentioned in the conversation. Thereupon, John Bilinski signed the Meat Cutters recognition agreement. Either Pizzo or Smith then dictated a similar agreement recognizing the Teamsters to Adele Masenas who typed it out and Bilinski signed it. In addition to recognizing Meat Cutters and Teamsters, the agreement provided that bargaining negotiations would begin within 10 days. Thus the meeting ended and, as Pizzo and Smith started to leave, An- thony Spazioso, the business agent for Teamsters Local 294, arrived. Spazioso was introduced and then all three left the premises. On Thursday, July 23, 1959, Pizzo sent a telegram to the Respondent Employer that "we are ready to start negotiations as per our recognition agreement on Mon- day July 27." The telegram was signed "Marvin Pizzo Bus Rep Dist Union Local One Amalgamated Meat Cutters 890 Third St Albany N Y." No reply was made thereto. Meanwhile on Saturday, July 18, and Thursday, July 23, John Bilinski and Adele Masenas consulted labor relations counsel, Robert H. Jones III, of Albany, New York, who advised them they had no proof that either Meat Cutters ar Teamsters represented a majority of its employees but only knew there was union activity of some extent. Jones also suggested to them that there was a serious question whether, if Pizzo alone had cards, the production and maintenance unit was an appropriate bargaining unit and questioned how Teamsters had any basis for claiming representa- tion of any employees. Pursuant to Jones' advice, John Bilinski, Walter Bilinski, and Adele Masenas met with Jones on Saturday, July 25, and executed separate petitions, one covering production and maintenance employees and Meat Cutters claim (Case No. 2-RM-1034) and the other covering driver-salesmen and Team- sters claim (Case No. 2-RM-1035) which were mailed to the Regional Office of the Board that day. These petitions were dismissed on October 16, 1959, on the basis of the filing of charges of unfair labor practices. Jones also prepared a notice to the employees for the Company to post on its bulletin board and a statement for the Company to read to Meat Cutters and Teamsters representatives if they should ask the Company to bargain collectively. On Monday, July 27, the above notice to employees (dated July 25) was posted. The notice read as follows: BILINSKI'S SAUSAGE MANUFACTURING CO. 41 Lark Street Cohoes, N.Y. Phone 1250 DEAR FELLOW EMPLOYEES: July 17th, representatives of the Meat Cutters and Teamsters unions came to us and told us all our employees bad signed cards to be represented by them. They told us we had to sign papers "recognizing" their unions as your bargaining agents. We thought that if you'd all signed cards we had to sign the papers; so we signed. Later, many of you told us you'd signed only because the unions told you everybody else had signed and if you didn't sign then you'd have to sign later and pay $25.00 to keep your jobs. This, of course, is not true. No one has to join a labor union to hold his job or his chances to get ahead here. Because we feel the unions tricked you and many of you would not have signed up if the unions had told you the truth, we have filed with the National Labor Relations Board petitions. for elections, so you can tell us, by your own secret vote, whether you really want these unions to be your agents. BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 239 Now we want to make three things absolutely clear: (1) As you may very well know, the National Labor Relations Act gives you the right to organize and bargain through any representative you may choose-and we recognize and respect that right. (2) As we hope you also know, the National Labor Relations Act gives you another right: the right to not join a labor union-that is, the right to represent yourselves-and it protects this right by making it illegal for any labor union to interfere with it or coerce you in exercising it. (3) Neither we nor the union is permitted to make you any promises of benefits or threats of injury to influence your choice in this matter. We will keep you posted on what the National Labor Relations Board does. Meanwhile, we earnestly hope you will give serious thought to this matter, which is very important to all of us. If the Meatcutters or Teamsters make themselves your bargaining agents, the National Labor Relations Act says you will lose your right to take your problems up direct with us, no matter how personal your problem may be. We hope no outsiders will force their way between us. Sincerely, THE BILINSKI FAMILY, [S] JOHN BILINSKI. JuLY 25, 1959 On the same day, July 27, Pizzo telephoned to John Bilinski and they arranged to meet the next morning. On July 28, Pizzo and Spazioso met with John Bilinski and Adele Masenas at the plant office. Pizzo said he came to negotiate a contract and John Bilinski then read a statement above referred to which had been prepared by Jones. The statement read as follows: We find we may have had no legal right to recognize your unions as collective bargaining representative of our employees without proper proof that your unions in fact represent a majority of them. We understand it is up to our em- ployees, not us, to say whether your unions are to be their representatives. If your unions will establish in a proper way that they in fact represent a majority of our employees in appropriate bargaining units, we will be happy to recog- nize your unions and bargain collectively with them. Toward this end, we have already filed petitions with National Labor Relations Board for determina- tion of your unions' status. According to John Bilinski, after he read the foregoing statement, Pizzo was very disturbed; that Pizzo said, "Don't think any outfit your size is going to push us around; we have a lot more money than you have and we'll bleed you to death"; that his union would not have any vote, that it had signed cards and there would not be any vote, and that Pizzo advised not to see a lawyer, that it cost one company more than $50,000 to fight his union and the company had lost. According to Pizzo, after Bilinski read the statement, Pizzo again offered to show the cards and have them checked against the payroll; but all that Bilinski replied was, "I have no comment to make outside of that [statement]." Anthony Spazioso, who accompanied Pizzo on July 28, testified that after Bilinski read the prepared statement, Pizzo offered to show the cards but Bilinski refused; whereupon Spazioso said, "We might as well get out of here, Pizzo" and they there- upon left the premises. On Monday, August 10, Meat Cutters and Teamsters separately filed the unfair labor charges herein. On August 13, Peter Kopcha, a driver-salesman , approached John Bilinski and asked him to recognize an independent union which "now had all of the employees signed"; and of which he was president. Bilinski replied that he could not recognize an independent union because of the "mess" the Company was in with the Meat Cutters and Teamsters. On August 17, Kopcha approached Bilinski again and repeated his inquiry whether Bilinski would recognize an independent union. Kopcha became disturbed and angry and Bilinski told him he would get him an answer from the Company's attorney, Jones. Jones prepared a statement which Adele Masenas read to Kopcha .on or about August 18. The statement read as follows: I have spoken with our attorney about your statement that you and your fellow employees have organized an independent union and want this company to recognize it and bargain collectively with it. He tells me we have no legal right to recognize your union-or, for that matter, any union-as collective bargaining representative of our employees without proper proof that it in fact 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represents a majority of them. Ordinarily I would tell you that if a union will establish in a proper way it in fact represents a majority of our employees in an appropriate bargaining unit we would be happy to recognize it and bar- gain with it for a proper contract . However, in this case I can not tell you this. As you may know, both the Meat Cutters and Teamsters unions are claiming they represent our employees and saying we must bargain with them. We have filed petitions with the National Labor Relations Board for elections to determine where the Meat Cutters and Teamsters stand. They, in turn, have charged our company with unfair labor practice-they say we are im- properly refusing to bargain with them and have interfered with our employees rights under National Labor Relations Act-and the Board is, I understand, investigating these charges right now . Meanwhile, frankly, we do not know exactly where we stand. This is the best answer I can give you at this time I want you to understand I am not trying to be "cute" or "complicated" with you. I am sure you will appreciate this when I tell you that if you have any question about anything I've said you should feel perfectly free to call the National Labor Relations Board in New York City and ask it about tlus matter. The Board's number is Plaza 1-5500 and a man named Samuel Korenblatt is, I understand, handling the problems involving our company there. Nothing material happened for the next several months. Then on February 13, 1960, all employees except one , including driver-salesmen , held a meeting . Accord- ing to Kopcha's pretrial affidavit , the employees were angry at what they con- sidered the Respondent Employer's delay in these proceedings . Mrs. Mary Flavin, an employee in the production and maintenance unit, drew up a petition dissolving the Independent Association , for submission to the Board, and all employees present signed it. They also agreed to demand that the Respondent Employer recognize Meat Cutters alone as representing all of them, including driver-salesmen, in one unit and voted to strike if Meat Cutters were not so recognized. On February 15, 1960, all the employees assembled at the plant and started picketing with signs reading: On Strike, Meat Cutters Local 1 , AFL-CIO Meanwhile Kopcha had contacted Pizzo as he and Meat Cutters Representative Kaiser were on the picket line. On this same day, all the employees, including driver-salesmen, signed new cards designating Meat Cutters as their representative; none signed a card for the Teamsters and no Teamster representative was present on the picket line. Kopcha informed John Bilinski, who had inquired what was going on, that the employees would go to work if they were recognized through Pizzo and Kaiser. Bilinski did not recognize Meat Cutters and the strike continued. On the third day of the strike , February 18, 1960, Meat Cutters filed a petition with the Board in Case No. 2-RC-10512 for an "all inclusive unit of all Bilinski employees" except supervisors and statutory exclusions , to be represented by Meat Cutters alone . This petition described a unit of "drivers and production employees" and identified Meat Cutters alone as petitioner. On March 15, 1960, at Meat Cutters' request, the Board approved the withdrawal of that petition . At the time of the hearing herein, Meat Cutters was continuing its picketing, the signs were unchanged, and Teamsters had neither joined the picketing nor made any further demand for recognition. Conclusions The question presented by the pleadings is whether the Respondent Employer violated Section 8(a) (5) of the Act when it refused to negotiate with Meat Cutters and Teamsters. The resolution depends on whether the Respondent Employer was lawfully within its rights in insisting that the claims of representation by Meat Cutters and Teamsters be determined by a Board -conducted election . If upon all the facts and surrounding circumstances , the Respondent Employer was motivated in good faith by petitioning for an election, then the complaint should be dismissed. If, however, the Respondent Employer had no genuine doubt that the majority of its employees had designated Meat Cutters and Teamsters representatives in the re- spective units and used the procedure of petitioning for an election in order to gain time within which to undermine the Unions, then a violation of the Act has been committed. There is considerable testimony as to whether the Respondent Employer was proffered cards at the meeting of July 17 , 1959, when the Respondent Employer recognized both Unions and agreed to begin negotiations within 10 days. The Respondent Employer has introduced testimony that no cards were proffered on July 17, and were first seen at the hearing herein . On the other hand , I credit the BILINSKI SAUSAGE MANUFACTURING COMPANY, INC. 241 testimony that Pizzo had the cards at that meeting , proffered them to the Respond- ent Employer, and offered to have them checked by an impartial person against the payroll . Why, then, was such an offer not accepted? The answer in my opinion is that the Respondent Employer was not particularly interested in examining the cards because it knew from the information volunteered by an unnamed employee and from the meeting called by the Respondent Employer on July 16, that a majority, if not all, the employees had organized. I find no merit to the contention of Respondent Employer that Teamsters, apart from Meat Cutters , had never requested negotiations . Respondent Employer recog- nized Teamsters and Meat Cutters on July 17, 1959 ', in writing, and promised to negotiate with them within 10 days. On July 28, when representatives of Meat Cutters and Teamsters appeared at the plant, the Respondent Employer had to know, and did know, they had come to negotiate in accordance with its promise to negotiate within 10 days. The Respondent Employer read a prepared state- ment from its attorney to both representatives of Meat Cutters and Teamsters on July 28, pointing out, inter aha, that if the Unions would establish in a proper way that they, in fact, represented a majority of employees in appropriate bargaining units, the Respondent Employer would be happy to recognize and bargain with them; and further adding, "Toward this end, we have already filed petitions with National Labor Relations Board for determination of your unions' status." The Board has held that the right of an employer to insist upon a Board-directed election is not absolute . United Butchers Abattoir, Inc., 123 NLRB 946. In that case the union had previously filed a petition for certification but the Board held that if the employer entertains no reasonable doubt either with respect to the appro- priateness of the proposed unit or the union's representative status, he cannot insist on a Board-directed election. In the case at bar, the Respondent Employer had no genuine doubt of the Unions' representative status. It had no doubt at all for at the time when John Bilinski met with Pizzo and Smith on July 17, Bilinski knew , as he testified, that his employees had organized from the information supplied to him by an unnamed employee on July 16, and from the meeting of the employees called by Bilinski on the same after- noon of July 16. In view of the Respondent Employer's unfair labor practices as found above (the violations of Section 8 (a) (1) ), I find that the Respondent Employer's refusal to ne- gotiate with Meat Cutters and Teamsters on July 27, 1959, and at all times there- after, was not based on any bona fide doubts as to the appropriateness of the pro- posed units or the Unions ' majority status , respectively, but was intended to gain time within which to undermine their representative status and therefore was vio- lative of Section 8 (a) (5) and ( 1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Employer set forth in section III, above, oc- curring in connection with Respondent Employer's operations described in section 1, above, have a close , intimate and substantial relationship to trade, traffic , and com- merce among the several States, and tend to lead to labor disputes obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent Employer has engaged in certain unfair labor prac- tices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Amalgamated Meat Cutters , Butcher Workmen and Affiliated Crafts of North America, District Union Local No. 1; AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees of Respondent Employer employed at its Cohoes plant, exclusive of all other employees and all supervisors as defined in Section 2(11) of the Act , constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. 3. The above-named Union was on July 16, 1959, and since that date has been at all times, 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. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Local 294, International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 5. All driver-salesmen employees of the Respondent employed at its Cohoes plant, exclusive of all other employees and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 6. The above-named Union was on July 16, 1959, and since that date has been at all times, the exclusive representative of all employees in the aforesaid appropri- ate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 7. By refusing on July 27, 1959, and at all times thereafter, to bargain collec- tively with the above-named Unions, respectively, as the exclusive representatives of their employees in the aforesaid appropriate units, the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 10 The Respondent Employer did not and has not engaged in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. [Recommendations omitted from publication.] Comite de Empleados de Simmons, Inc. (also known as Comite de Negociaciones de los Empleados de la Simmons , Inc.) and its officers and/or agents Miguel Pacheco Cintron, Angel Luis Gambaro, Juan A. Garcia, Jose C. Burgos, and Filiberto Aviles Padilla; and/or Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBTCW & H of America and Simmons, Inc. Comite de Empleados de Simmons , Inc. (also known as Comite de Negociaciones de los Empleados de la Simmons, Inc.) and its officers and/or agents Miguel Pacheco Cintron , Angel Luis Gambaro, Juan A. Garcia, Jose C. Burgos, and Filiberto Aviles Padilla ; and/or Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBTCW & H of America and Seafarers International Union of North America, Atlantic & Gulf Dis- trict, P.R. Division, AFL-CIO. Cases Nos. 34-CC-60 and 24-CC-61. July 19, 1961 SUPPLEMENTAL DECISION AND ORDER On June 17, 1960, the Board issued a Decision and Order 1 in the above-entitled proceeding in which the Board found, contrary to the Trial Examiner, that Respondents Comite de Empleados de Simmons, Inc., herein called the Comite, and Miguel Pacheco Cintron, Angel Luis Gambaro, Juan A. Garcia, and Jose C. Burgos had not engaged in conduct violative of Section 8(b) (4) (C) of the Act, and, there- 1127 NLRB 1179 132 NLRB No. 27.