Snap Out Binding & Folding, Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snap Out Binding & Folding, Inc. and Automated Folding & Binding Co . and Bookbinders and Bin- dery Women's Union, Local No. 63, 63-A, Interna- tional Brotherhood of Bookbinders, AFL-CIO. Case 21-CA-7247 request that employee Hosey permit Respondents' attorney to be present when Hosey gave a state- ment to a Board agent. This precise issue was neither alleged nor litigated. June 29, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 30, 1967, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision, with a supporting brief, the Charging Party filed exceptions, and the Respondent filed an answering brief and a motion to strike various parts of General Counsel's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER BROWN, dissenting in part: I would find that, by distributing the January 28 "flyer," Respondents threatened a reduction of hours and wages in the event of a union victory in the election conducted that day and that Respond- ents thereby violated Section 8(a)(1) of the Act. I would accordingly issue a remedial order ap- propriate to this case. In affirming that portion of the Trial Examiner's Decision described as "The affidavit incidents," I consider it important to note that the Board does not reach or pass on the lawfulness of Respondents' In determining the employees to be included in the bargaining unit, for the purpose of ascertaining the Union's majority status, the Trial Ex- aminer concluded that Robert Aviles was a nonsupervisory employee and therefore a member of the unit. In an earlier representation proceeding in- volving this same unit, the Board had decided that Aviles was a supervisor and, accordingly, not entitled to vote in the election. 160 NLRB 161. Whether or not Aviles is now treated as a member of the unit, the General Counsel would in either event be required to prove that the Union represented 21'of the unit employees at the time of its demand for recogni- tion, in order to prevail under the present 8(a)(5) complaint We therefore find it unnecessary to pass on the status of Aviles or the propriety of relitigating that question in this proceeding. Similarly, there is no need to cinsider the Trial Examiner's disposition of certain of the authorization cards offered by the General Counsel to establish the Union's majority representation at the time of the demand for recognition. Even assuming that the Union enjoyed majority status, the other circumstances in the case, as found by the Trial Examiner, fall short of establishing that Respondent's refusal to extend recognition was motivated by an unlawful intention to forestall collective bargaining or evade bargaining obligations. Aaron Brothers Company of California, 158 NLRB 1077; cf. H. & H. Plastics Mfg., Co., 158 NLRB 1395. We note three factual errors in the Trial Examiner's Decision. The first occurs in the penultimate sentence of the second paragraph of the section entitled "a. The meeting of January 10." Margolin testified that he stated at this meeting that employee Fisher, of all the girls, could easily qualify as a,lourneywoman. He did not state, as found by the Trial Examiner, that he did not think that any of the other girls could qualify. The other errors are found in the sixth-from-last paragraph of his Concluding Findings. A total of 21 employees, rather than the 20 inadvertently mentioned by the Trial Examiner, signed cards for the Union, and employee Hosey, as well as employee Medina, testified that the president of the Respondents had ut- tered a threat about closing the plant. The Trial Examiner had earlier in his Decision discussed and discredited Hosey's testimony None of these errors mat°rially affects the findings and conclusions drawn by the Trial Examiner and affirmed in this Decision and Order. In view of this af- firmance, it is unnecessary to pass on Respondents' motion to strike por- tions of General Counsel's exceptions and brief. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID F. DoYLE, Trial Examiner: This proceeding, with all parties represented by counsel, was heard before me in Los Angeles, California, on November 15-21, 1966, on complaint of the General Counsel and answer of the Respondents. The issues submitted for decision were whether Respondents had violated Section 8(a)(1) and (5) of the Act by certain conduct, more particularly described hereinafter. i 1 The charge herein was filed by George E Smith , business representa- tive, on June 22, 1966 , and the complaint herein was issued by the Re- gional Director, Region 21 (Los Angeles , California), on September 8, 1966. In this-Decision, Bookbinders and Bindery Women's Union , Local No. 63, 63-A, International Brotherhood of Bookbinders , AFL-CIO, is referred to as the Union, Snap Out Binding & Folding, Inc., and Auto- mated Folding & Binding Co, which are found herein to be one em- ployer, is referred to as the Company , the General Counsel of the Board and his representative at the hearing, as the General Counsel, the Na- tional Labor Relations Board , as the Board; and the National Labor Rela- tions Act, as amended, as the Act. All dates in this report are in the year 1966 unless noted otherwise. 166 NLRB No. 21 SNAP OUT BINDING & FOLDING INC. At the hearing all parties were represented by counsel, who were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally upon the record, and to file briefs and proposed findings. The General Counsel and the Company have filed briefs which have been carefully considered. Upon the entire record of the case and upon my obser- vation of the witnesses. I make the following- FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE COMPANY It is admitted in the pleadings that Snap Out Binding & Folding, Inc., is a California corporation with its principal office and place of business at 44-45 South Santa Fe Avenue, in Los Angeles, California, where it is engaged in trade graphic finishing operations for customers in the printing business. Automated Folding & Binding Co. is a California cor- poration with its principal office and place of business at 1361 East 16th Street, Los Angeles, California, where it also is engaged in trade graphic finishing operations for customers in the printing business. Max Margolin is the president of both entities and owns a majority of the stock in each. Margolin also has overall control of all phases of the operations of both cor- porations including finances, sales, and production, and he is responsible for the labor relations policies of both corporations. The two corporations, in the course and conduct of their business operations, annually sell and perform ser- vices valued in excess of $50,000 for Rapid Blue Print Company. The latter-named company, in the course and conduct of its business as a trade printing establishment, annually sells and causes to be shipped goods valued in excess of $50,000 directly to commercial customers located outside the State of California. The pleadings establish, in addition to the above facts, that the two corporations together form one integrated business enterprise with common labor relations policies and constitute a single employer for the purposes of the Act, which is an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At the hearing the parties stipulated that the Union is and at all times material herein had been a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Issues The complaint, in substance, alleges that the Company refused to recognize and bargain with the Union as the exclusive bargaining representative of the Company's employees in an appropriate unit after the Union made due demand for such bargaining on January 20, upon which date the Union represented a majority of the Com- pany's employees in the said appropriate unit. The com- plaint also alleges that the Company coerced employees in the exercise of their rights guaranteed under Section 7 of the Act by certain statements made to employees by 317 company officials and that by this conduct the Company violated Section 8(a)(1) and (5) of the Act. The answer of the Company admitted that the two cor- porations constituted a single employer which is engaged in commerce within the meaning of the Act. At the hear- ing, counsel for the parties stipulated that the unit set forth in the complaint was appropriate for collective bar- gaining. At the hearing, the Company contended that the Union did not at any time material to the controversy represent a majority of the Company's employees since at least six of the Union's authorization cards were invalid because they had been obtained through misrepresentations or coercion or both, and that the showing of authorization cards at the hearing did not establish that the Union pos- sessed 4 majority in the unit at the time of its demand for recognition and bargaining. The Company also claimed that the Union did not represent a majority of the Company's employees, re- gardless of how the authorization cards were obtained, since two of the cards were obtained after the demand and refusal of recognition. Also, that all the authorization cards were obtained in an atmosphere of union coercion to the extent that they could not be the basis for a bargain- ing order. The Company also denied that at any time it interfered with, restrained, or coerced its employees in the exercise of their rights under Section 7 of the Act. The Representation Proceeding The present proceeding is connected with a representa- tion proceeding involving the parties which was docketed as Case 21-RC-9894. In the representation proceeding, the Union filed a petition for certification of representa- tives with the Regional Office of the Board (Region 21, Los Angeles, California) on January 7, 1966. On January 17, the parties, with the approval of the Regional Director, executed an agreement for Stipulation for Cer- tification Upon a Consent Election. In this agreement, the appropriate unit was described in the same language as set forth in the complaint. The description is as fol- lows: All bindery employees, shipping and receiving em- ployees, and delivery drivers at Employer's Los Angeles, California, plants, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. On January 28, the Regional Director conducted a secret-ballot election among the employees of the Com- pany in the appropriate unit. On March 8, the ballots were opened and counted with the following tally: Approximate number of eligible voters 45 Void ballots 1 Votes cast for petitioner 15 Votes against participating labor organization 15 Valid votes counted 30 Challenged ballots 9 Valid votes counted plus challenged ballots 39 On March 15, the Union filed timely objections to the conduct of the election and, thereafter, the Regional Director initiated an investigation on the objections and challenged ballots. The ballots of Oswaldo Fernandez, 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sr., Ervin!, Frederick, and Jo Ann Gutierrez were chal- lenged by! the Board agent because their names did not appear on the eligibility list submitted by the Company. The Union challenged Robert C. Aviles, Oswaldo Fer- nandez, Jr., and Isabell Fisher on the ground that those employee were supervisors. The Regional Director, in his report on challenged bal- lots and objections to election, found that Robert C. Aviles, Oswaldo Fernandez, Sr., and Isabell Fisher were supervisors under the Act and were not eligible to par- ticipate in the election. Upon appeal, the Board approved this findin .2 The Board also found that Oswaldo Fernan- dez, Jr., was an eligible voter. The Board also found that certain of he objections of the election were well founded and set aside the election. Thereafter, the Union withdrew its petition and filed the instant charge. Also prior tote opening of the hearing herein, another unfair labor pra tice proceeding had established that Ervin Frederick, was an eligible voter. The Issu as to the Eligibility of Aviles, Fernandez, Sr., and Fisher In this proceeding , counsel for the Company stated that he desired to introduce evidence which would show that the three named employees were not supervisors but rank-and-rile employees. He also pointed out that the Board's d cision as to the three employees involved was based on affidavits and not on the testimony of persons under oat who were subject to cross-examination. After some discussion of this subject , the General Counsel stated that he was prepared to offer proof as to the super- visory capacity of the three individuals , if I deemed it necessaryL I then stated that since the proof on the issue was available to both sides and the witnesses were availa- ble, I thought the safer course of action would be to take testimony on this point, and thus afford the Company a hearing o the issue . Thereafter, counsel for the General Counsel and counsel for the Company both presented evidence and cross-examined the witnesses on this issue. At the hearing , counsel for the parties agreed that 40 named employees were properly included in the ap- propriate unit. 3 This isolated the issue of the supervisory status of ernandez, Sr., Aviles , and Fisher. As noted previously , the Regional Director , in his in- vestigatio , found that the three employees were super- visors within the meaning of the Act, and the Board, in its Decision and Order , supra, affirmed the Regional Director's findings . Upon the evidence presented in this proceeding, I find that Fernandez, Sr., and Fisher are each supervisors within the meaning of the Act. For reasons later set forth I find that Aviles is a rank-and-file employee. Oswaldo Fernandez, Sr. The principal witnesses as to the supervisory status of Fernandes, Sr., were Fernandez, Sr., himself, and Max Margolin,; the owner, and immediate supervisor of all ac- tivities of the Company. In the !course of his direct examination, Fernandez testified that he was a "working foreman" and that he did not have authority to hire, fire, or discipline employees. He said that he performed the same functions as other operators in the folding department with the exception that he sets up some machines for employees with less ex- perience. He also stated that on one occasion he had recommended that Jose Medina, Jr., be given a raise in pay which Margolin had previously denied the employee. Fernandez explained that on this occasion the Company had a large order to fill and he told Margolin that Medina, Jr., was threatening to quit and that he was absolutely needed to complete the big order. Under those circum- stances, Margolin relented and kept the employee at hTS' job by giving him the increase in pay. On cross-examination, however, Fernandez said that he assigns men to various jobs in the folding department, checks the work in progress and makes sure that it is being properly performed. In the assignment of jobs to the employees, he uses his own judgment based on his ex- perience. Fernandez also said that Margolin places much reliance on his judgment; when a new employee is hired on a probationary basis, he is retained or dismissed on the basis of Fernandez' opinion of his ability or skill. Also when layoffs become necessary due to lack of work, Fer- nandez decides in the first instance which operators will be retained and which shall be laid off. Margolin then per- forms the actual layoff based upon the recommendations of Fernandez. Fernandez also said that he was a salaried employee and was changed from an hourly employee to a salaried employee at the time he was made the working foreman in the folding department. Employee Ortiz stated that Margolin had personally in- formed him that Fernandez was in charge of the folding department. Upon all the evidence on this point, it is found that Fer- nandez, Sr., responsibly directs the employees in the fold- ing department, effectively recommends the hiring or re- tention of employees on a permanent basis, has effective- ly recommended a salary increase, and has selected em- ployees for layoff. I find, therefore, that he is a supervisor within the meaning of the Act and is therefore excluded from the appropriate unit. Isabell Fisher Isabell Fisher testified that she is the floorlady in the bindery department. As the floorlady, she regularly as- signed particular jobs to the employees in the bindery de- partment. In this department, there are about six or seven different operations. Fisher testified that some employees are more skilled at one operation than in another. It is part of her job to decide which employee shall operate which machine on each particular job. She sets up the machines for other employees. On some occasions, she operates different machines in the bindery department herself. Fisher testified that the women employees in her department came to her with petty complaints or grievances which she remedied herself. If the grievances or complaints were of a serious nature, then she referred them to higher authority in the person of Margolin or Richard Kramer, the plant superintendent. Fisher said that the girls brought these complaints to her because they had been told to do so by Margolin. Fisher is paid on an hourly basis as are the other em- ployees in the bindery department, but she is paid more 2 Snap-O0 Binding & Folding, Inc., 160 NLRB 161, July 12, 1966. 3 These employees are listed in G. C Exh. 2. SNAP OUT BINDING & FOLDING INC. 319 than the other employees. Fisher has, on occasion, given employees permission to be absent from work or to leave work early without consulting anyone else. She also has informed employees when they were laid off or when they were transferred to other departments or when to work overtime. Upon all of the evidence , I find that Fisher responsibly directs the employees in the bindery department and ex- ercises authority to adjust minor grievances and grant minor deviations from the scheduled work hours . There- fore, I find her to be a supervisor within the meaning of the Act. She is therefore excluded from the appropriate unit. Robert C. Aviles On direct examination, Aviles testified that he had been employed by the Company for the past 12 years. At the time of the organizational campaign he held a job which was called expediter-processor. He explained that in this job, his principal duty was to receive purchase or- ders from customers on the telephone and write out these orders with specific instructions as to how each job was to be done. When he completed writing up the ticket, he took it to Kramer, the superintendent, who then dis- tributed the work order to the particular department which was to perform the work. Sometimes he received work orders through the mail, and on those occasions he called the customer and inquired as to how the customer wanted the job performed. The "job tickets" which Aviles made out contain the instructions for completing the job. Aviles said that there is no one who works under his supervision. When he finishes writing up the job ticket, he gives it to Kramer who distributes it. On some occasions , Kramer has asked him to take the ticket to the proper department , and on those occasions , which were not frequent , he did so. For this work, Aviles has a desk located in the shipping area. Sometimes he will do work in the cutting, drilling, or general bindery departments. He is capable of performing work in each of the depart- ments such as cutting , binding, and folding, and on occa- sion he works in these departments to demonstrate to the employees how the customer wants the job done, or to help out on a rush order. His job brings him in frequent contact with the employees in the shipping department, but only because of specific instructions from the customers to him as to how the customer wants the names of consignees , etc., affixed on their packages or cartons for out-of-State or local shipment. In the shipping department, there is a staff which varies from one to five. When needed , other employees may be transferred into the shipping department for a special job. Aviles testified that he did not work the same regular hours as other em- ployees, because on some days he received no work or- ders and on other days might receive as many as 30. On some days he worked over 8 hours, and on other days he did not work that number of hours. He is paid a salary. Aviles testified that he had no authority to hire, fire, lay off, transfer, or discipline employees . He has the same lunch period as other employees, but there are no em- ployees assigned to work under his supervision. Some- times employees come to him to ask more instructions than are carried on the job ticket. On cross-examination by the General Counsel, Aviles said that he had brought the names of two prospective employees, Navarrette and Lopez , to Margolin's atten- tion. These men were later hired. Aviles said that on one occasion he had picked employees to work overtime and initialed their timecards for that overtime . On redirect, Aviles testified that Navarrette was a personal friend of his with much less experience in the business , so Navar- rette occasionally asked him a question about the work, rather than to go to Margolin or to the superintendent. Aviles explained that he had recommended Lopez for hire to Margolin at the request of a fellow employee, Nor- man Robarge. Aviles also said that his selection of people to work overtime and his initialing of their timecards on the one occasion referred to was done at the express request of Superintendent Kramer, who knew that Aviles was working overtime on that night , and Kramer wanted to keep a personal appointment on that particualr even- ing. Aviles said that the only time he had picked em- ployees for overtime or initialed their overtime cards was on this one occasion at the specific request of Kramer. Aviles answered all questions on both direct and cross- examination in a straight forward and candid manner. I credit his testimony and find that he was the expediter- processor for the Company whose principal duties were to write up instructions as to how the customers wanted their orders performed and to see that their instructions were followed. There were no employees over whom he exercised any routine supervisory authority. If he con- ferred with employees or instructed them as to certain jobs, it was merely to make clearer the customer's in- structions as they had given them to Aviles. He appears to be an experienced, valued, salaried employee who per- forms one particular function for the Company, that of the order-taker, whose duty it was to see that orders were finished in accordance with the customers ' instructions and to their satisfaction. It has been said that the focus of inquiry into an em- ployee's status must be centered on the existence of su- pervisory power, which is to be distinguished from ab- stract, theoretical, or "rule book" authority on the one hand and from infrequent exercise of clearly delegated authority on the other.4 And while it is well settled that the list of supervisory powers in the Act's Section 2(11) must be read in the disjunctive , the section also requires the exercise of "in- dependence of judgment in the conjunctive ... with what goes before. "5 It follows then that it is not enough that an individual perform one of the functions listed in Section 2(11); he must consistently display true independence of judgment in implementing this authority. The exercise of some su- pervisory tasks in a merely "routine," "clerical," "per- functory," or "sporadic" manner does not elevate a rank- and-file employee into the supervisory ranks. Nor will the existence of independent judgment alone suffice ; for "the decisive question is whether [the individuals involved] have been found to possess authority to use their inde- pendent judgment with respect to the exercise by them of 4 See N L.R B v. Southern Bleachery & Print Works, Inc., 257 F 2d 235, 239 (C.A. 4), cert. denied 359 U.S 911; N.L.R B v. Capital Transit Company, 221 F 2d 864, 867 (C.A D.C.), Ohio Power Company v. N L.R.B., 176 F.2d 385, 387 (C A. 6); N.L R B. v. Beaver Meadow Creamery, Inc., 215 F.2d 247 , 251 (C.A 3), N L.R B. v. Whitin Machine Works, 204 F 2d 883 , 886 (C.A 1). 5 Poultry Enterprises , Inc. v. N.L.R B , 216 F 2d 798 , 802 (C.A 5), N L R.B v. Southern Bleachery & Print Works, supra 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some one or more of the specific authorities listed in § 2(11) of the Act, as amended." 6 Upon the above facts and the authorities cited, I find that Aviles is not a supervisor as defined by the Act. The Alleged Majority of the Union As noted previously, counsel for the parties at the hear- ing stipulated that 40 named employees were properly members of the appropriate unit. By the finding above that Aviles is not a supervisor, the number of eligible voters in the appropriate unit was increased by 1 to a total of 41 employees. Of the 41 employees, the Company con- tends that the authorization cards of 7 employees should not be counted. These employees are: Hans Schaer, Bur- ton Chase, Jerry Alexander, Hazel Williams, Bill Hardi- son, and Nancy and Edwin Webb, who are wife and husband. The Cards of Certain Employees In deciding whether the card of each of the above-men- tioned employees should be counted, the criterion for the decision is set out in a series of Board decisions.' In Bauer Welding & Metal Fabricators, Inc., 154 NLRB 954, 966-967, the Trial Examiner's decision, which was adopted without comment by the Board, states the fol- lowing: Respondent would seem to misconceive the basis of the doctrine on which it relies.... The doctrine, in essence, is to the effect that where the facts taken as a whole show that the employees were led to be- lieve that by signing the cards they were not signify- ing a desire to be represented by the Union for col- lective-bargaining, but merely attesting to their willingness to have a Board election, the cards achieve a significance no greater than what the Union led the employees to believe they had. Thus in N.L.R.B. v. Harold W. Koehler, et al. dlbla Koehler's Wholesale Restaurant Supply, 328 F.2d 770, 773 (C.A. 7), the employees were told that by signing the cards "they were not selecting [the Union] as their bargaining agent" (emphasis supplied) but merely executing the formality needed for having the Board conduct an elec- tion. In N.L.R.B. v. Abrasive Salvage Company, Inc., 285 F.2d 552, 555 (C.A. 7), the employees signed under like belief that it was only for [the] pur- pose of having the Board conduct an election, some of the signers, when solicited, having "expressed reluctance to join the union." In Abrasive Salvage, also, the employees, upon learning the union was de- manding recognition on the basis of the cards, asked the union for their cards back, saying it-had "misin- formed" them. In Englewood Lumber Company, 130 NLRB 384, the remaining case cited by Respondent, the employees were led to believe the cards had no significance other than to indicate their willingness to have a Board election. [Emphasis supplied.] 6 N.L.R.B. v Brown & Sharpe Manufacturing Company, 169 F.2d 331, 334 (C.A 1). See also Poultry Enterprises, Inc. v N.L R B , 216 F 2d 798, 801-802 (C.A. 5), N L.R B. v Lindsay Newspapers, Inc., 315 F 2d 709,712 (C A 5), N.L R.B. v. City Yellow Cab Company, 344 F 2d 575, 579-582 (C A 6); N.L R B v Overnite Transportation Co , 308 F 2d 284, 289-290 (C A 4), N L.R B. v Southern Bleachery & Print Works, Inc, 257 F.2d 235, 239 (C A. 4), cert demed 359 U S 911, The decision of the Board in Peterson Brothers, Inc., 144 NLRB 679, 683, states the criterion for acceptance of an authorization card in a situation in which the words "only" or "solely" are not used. In that case, the Board stated:We agree ... that the card signed by McElveen does not validly designate the Union.... McElveen had twice refused to sign a card at the solicitation of union representatives. The third time he was sol- icited they told him that signing a card would not af- fect his views with respect to the Union, that it did not mean that he would be voting for it, and that if he wanted his card back he would be able to get it if enough cards had been signed so as to get an elec- tion. It is clear that representations were made ... that the only reason he was being asked to sign a card was to help obtain an election, and that his original opposition to the Union would not in any way be compromised if he signed a designation card. Examination of the decision in the Peterson case illus- trates that the words "only" or "solely" were not used by the solicitors of the cards. With the criterion for the judgment of the cards established, we may turn to the pertinent testimony. John Harris, a qualified handwriting expert, testified that in his opinion each of the cards here involved was written by the employee concerned. He had compared each card with certain sample signatures obtained from the Company's records. Harris was definite in his testimony as to all employees, except one, whose card was authenticated in another way and received in evidence. As mentioned previously, the General Counsel offered evidence elicited from each employee as to the circum- stances under which the employee had signed the card. The Card of Hans Schaer This employee was called as a witness by the General Counsel. Schaer is an alert young man who is a recent im- migrant from Switzerland. It would appear that he had a good education in his native land because at the time he testified he had been in this country less than a year but spoke and understood plain, simple English quite well. As one reads the typewritten record of his testimony, one might be misled into thinking that this 'witness was con- fused; that would be a mistake. The only confusion in Schaer's testimony was not the fault of the witness but the fault of counsel and the Trial Examiner, who occa- sionally forgot that Schaer's English vocabulary was not as extensive as those of us who were born to the lan- guage. As he testified Schaer asked for clarifications of such words as "status" and "discussed." When the questions were propounded in simple, plain English the witness answered intelligently, candidly, and to the point. On direct examination by the General Counsel, Schaer as shown an authorization card purportedly signed by him. The card of Schaer is in the same form as the N.L.R.B. v. Parma Water Lifter Co, 211 F.2d 258, 261 (C.A. 9), cert denied 348 U.S 829, San Manuel Copper Corporation, 120 NLRB 174; English Lumber Company, 106 NLRB 1152, Forest Oil Corporation, 14-RC-1455 [not reported in NLRB volumes] 9 See Englewood Lumber Company, 130 NLRB 394; N L R.B v Harold W. Koehler, et al d/b/a Koehler's Wholesale Restaurant Supply, 328 F.2d 770,773 (C A. 7). SNAP OUT BINDING & FOLDING INC. 321 authorization cards of all other employees. This card is unequivocal and reads as follows: AUTHORIZATION FOR REPRESENTATION I, THE UNDERSIGNED, EMPLOYEE OF AUTOMATED FOLD. & BIN. COMPANY ADDRESS AUTHORIZE THE BOOKBINDING & BIND- ERYWOMEN'S UNION LOCAL NO. 63-63 A to represent me in negotiations for better wages and working conditions. This authorization supersedes any similar authority previously given to any persons or organizations. MY SIGNATURE H. R. Schaer Date 1.6.66 My Address 12216 Sproul Phone - City Norwalk Kind of Work Perfect-Binder-Oper. Dept. Stitcher/Perfect-Binder Mechanic Present Wage Scale 3.35$ Shift: Day X Swing Graveyard On direct examination Schaer readily identified the card, his signature, and the date. On cross-examination Schaer said that he signed the card at a union meeting and he thought that employee Jose Medina, Jr., was the per- son who gave the card to him to sign. This meeting was held in the back room of a tavern. Schaer said that George Smith, the business representative of the Union, and other employees were present. When he was asked if other authorization cards were passed out to people at the meeting, Schaer explained that he did not know, because he had another appointment so he left the meeting early. At the moment when he received his card, he was the only one who was given a card. Schaer explained that he started to leave the meeting early to keep his other ap- pointment, when Jose Medina, Jr., gave him the card. At that point Schaer's testimony is as follows: Q. (By Mr. Yacullo) Were you told that that authorization card was only to get an election? A. That is all what I know, but I don't know who told me this, but I know -I have known this already before when I heard this from other people, that this card is to get an election. That is all what I know about this card. A moment later Schaer testified as follows: Q. (By Mr. Yacullo) Did anyone at that meeting tell you that your signing of the card was only to get an election? A. Right. Q. They told you that? A. Right. Q. Did more than one person , as you remember, tell you that? A. Yes. Q. Do you remember Joe Medina, Jr., saying that to you? A. It is possible, but I cannot remember exactly. Schaer then said that he was not sure that Jose Medina, Jr., was the person who told him that the card was only for the purpose of having an election. On further questioning Schaer answered as follows: Q. (By Mr. Yacullo) But you are sure that more than one employee at that meeting told you that it was only to get an election? A. Right. A moment or two later Schaer, in answer to questions by the Trial Examiner, testified that he started to leave the meeting to keep his other appointment when he was called back by a person who he thought was Jose Medina, Jr. In regard to Jose Medina, Jr., Schaer testified as fol- lows: THE WITNESS: Somebody called me back, but I don't know-I think it was Joe Medina, Jr., who called me back. And he was talking about this, signing the card, and I say, "Now, I will think it over until tomorrow." And he say, "Oh, you don't have to be - " he say, "We want this card. It has nothing to do with the votes." That means that I vote for the Union, that is only to get this election. At that point Schaer signed the card on the table at which Smith, the business representative, and the other mem- bers of the group were sitting. After he signed the card he gave it back to Jose Medina, Jr. Schaer said that he did not pay much attention to the writing on the card because he could not read English very well and that he relied on what Jose Medina, Jr., and others had told him about the card. On redirect examination, Schaer was asked if he had a conversation with Smith on that evening in regard to what would be done with the card after he signed it. Schaer then testified as follows: A. He told me that this card is only for the Union so that nobody else would see the card later, and that is -as far as I know, that the -card, after the vote, it get throwed away. Nobody except the Union sees this card, in other words. Employee Jose Medina, Jr., testified as to the same in- cident as follows: Q. (By Mr. Gora) Do you recall whether there was a meeting held on that day? A. I believe there was. Q. Do you recall whether this was the meeting where you gave Mr. Schaer a card? A. I did, yes. Q. Did you explain to Mr. Schaer the purpose of the card? A. I did. Q. What did you say to Mr. Schaer, and what did Mr. Schaer say to you? A. I told him that this card gave the union the right to represent him, and he did not fully un- 322 DECISIONS OF NATIONAL ]LABOR RELATIONS BOARD derstand that, so I tried to explain it to him in that these cards would be sent into the Labor Board, and if we could show a majority, then we possibly could get an election. Q. Yes? A. And he was kind of still hesitant. So I told him that Max would not see these cards, and I think this is what sold him. So he did sign it just before he left the meeting. Q. And he returned the card to you? A. No. At that time, he had walked around the table and he was directly in front of me when he was filling it out, and he handed it to Mr. George Smith. Q. At any time did you tell Mr. Schaer that the only reason for the card was to both-to obtain an election? A. No, I did not. [Emphasis supplied.] In the above, it should be noted that George Smith was the business representative of the Union who was present during all the conversation of Schaer and Medina, Jr. Smith did not testify in this proceeding. Since he was in the courtroom and available to testify on this point, and did not, I draw the inference that if he did testify his testimony would not be favorable to the position of the General Counsel or the Union. In my judgment, Schaer was an honest, truthful witness who found himself slightly handicapped in testifying in English. Upon his testimony which certainly seems to be buttressed by that of Medina, I find that Schaer's authorization card should not be counted. From the testimony of both Schaer and Medina, it is clear that Medina told Schaer that "these cards would be sent into the Labor Board," and if the Union "could show a majority then [the Union] possibly could get an election." He was also told that these cards would not be shown to the Employer. There is no evidence in the testimony of either witness that by signing the card, Schaer authorized the Union to do more than seek an election. The promise of Smith to Schaer that the card would not be shown to Margolin, the Employer, pre- cluded in good faith any showing of it to Margolin as the basis for a claim for recognition and bargaining. The Card of Burton Chase; the Series of Threats Directed to Chase; -Chase's Communication of Threats to Employees This employee was called as a witness for the Re- spondent. Chase stated that his relationship with the Union was marked by a series of threats. He testified that when he was originally invited to attend the union meetings by employee Edwin L. Webb, he asked Webb what would happen if he did not go to the meetings. Webb replied that things would be made so unpleasant for Chase in the plant that he would be forced to quit. Chase testified that he went to a couple of union meetings and at one of them he signed an authorization card. On direct examination he testified that he signed his card in the course of a talk by Smith, the Union's business representative. He testified as follows: Q. Did Mr. Smith say that this card was only to authorize an election? A. I could not say that he said it in those exact words, but it was so stated more or less that it was only to authorize an election; that it had no binding effect on me if there was not an election, or if the shop did not become union, but this was not said directly to me; it was said to everybody that was present. Chase was cross-examined on this aspect of his testimony but it remained unshaken. Chase also testified that at another union meeting Smith, the business representative, Webb, and other lead- ing union adherents were checking over the names of em- ployees who could be counted upon to vote in favor of the Union. When they came to the names of employees Cid- dio and Hans Schaer, previously mentioned, Smith and Webb agreed that the two named employees were not for the Union and "must be gotten rid of." Chase asked Webb how Ciddio and Schaer could be gotten rid of and Webb replied by asking if Chase had ever heard of sabotage. Webb then suggested that Chase "turn away" from the machine some of Ciddio's paper which would cause him to foul up the work of the machine. Chase further testified that a few days before the elec- tion Webb called him on the phone and said that he had heard that Chase had "finked" on the Union. Then Webb said that he had better be sure, which way he voted, because he might find himself out of a job. Chase asked if Webb was threatening him and Webb then replied that he was not threatening. The men then discussed whether Chase had made an affidavit to the attorney for the Respondent. Webb accused Chase of doing that, but Chase denied it. Then Webb said that Chase had better make up his mind as to how he would vote because Webb would hate to see Chase come home sometime and find that his wife and baby had been in an accident. Chase then told Webb that if he was threatening him, that Chase would be happy to meet Webb in the street and fight it out. Chase said that he glanced at the card but did not read it before he signed it. When Edwin L. Webb was called to the stand on the first occasion as a witness for the General Counsel, he was asked only to identify his authorization card. When Chase testified as to the various threats made against him by Webb, I suggested to the General Counsel that Webb should be recalled to give his version of those events. On direct examination on his recall, Webb testified that at one meeting Schaer's name had come up and had been discussed. At that meeting Business Representative Smith asked Webb how Schaer felt about the Union, was he for the Union or against it? Webb testified that he an- swered the question by saying that he thought Schaer "wanted to think about it" Webb testified that no one said that Schaer should be "gotten rid of" because Schaer up to that point had never said that he was for or against the Union. Webb also said that Ciddio's name came up under the same circumstances of reviewing the prospec- tive voters. When Ciddio's name came up, Smith, the business representative, said that Ciddio had a business of his own at one time and, although he was a member of the Union before that, he had given up his membership. Webb said that a few days before the election he made a phone call to Chase. Webb explained that he was told 2 days before the election that Burton Chase had evidently switched sides, so he called Chase. He asked Chase if he had changed sides. Chase replied that he had not changed sides, but that he did not know what to do; Chase said that when he talked to the union men he thought the Union made sense, but when he talked to Margolin, the Employer, he was not sure. Then Chase said that SNAP OUT BINDING & FOLDING INC. 323 whichever way the shop went, he thought he would lose his job. Then Webb told Chase that because Chase changed sides the Union would no longer support Chase with Margolin, because Margolin had told Webb on at least three occasions that he wanted to fire Chase. Then Chase said that the only thing he could do was not vote. Webb testified that when the first conversation was finished, he waited a half hour and called Chase again. In this conversation Webb charged Chase with signing an af- fidavit for Margolin, which Chase denied. When Webb said that Chase had signed such an affidavit, Chase took offense at being called a liar and said he would be willing to meet Webb in the street and fight it out. Webb denied that he ever threatened bodily harm to Chase's wife or child. Chase also testified, and this was confirmed by Mar- golin, that Chase reported the first two incidents of threats to Margolin. Margolin, at one of the employee meetings run by the Company, asked Chase to tell the employees of Webb's threats and the so-called suggestion of sabotage. Chase related the facts of these incidents to the assembled employees. It is noteworthy that the General Counsel offered no evidence as to the fact of Chase's communication of these threats to the assembled employees at the meeting. It is also noteworthy again that Business Agent Smith did not testify concerning what took place at the meeting in which the union adherents were counting prospective votes for and against the Union. The Card of Hazel Williams This employee was called by the General Counsel. She testified on the subject of her authorization card, the meeting of the union adherents at which her card and that of employee Alexander were signed, and she then described the duties of Isabel Fisher in the bindery de- partment. On cross-examination, further facts concerning her signing of her authorization card were elicited. She testified that the card was passed to her in the course of a meeting and that Smith, the business representative, told her that she "was not obligated under any conditions by this card only that it was authorizing the union to speak for us for better wages and working conditions. That is what I was told-all that I was told." Williams then admitted that on August 23 she gave an affidavit to a Board agent in which he had asked her a question rela- tive to the circumstances under which she had signed her authorization card. The witness was then shown the fol- lowing paragraph in her statement, which she acknowledged she had given to the Board agent: A. I have been shown an authorization card by the Board agent, and the signature appearing thereon is my signature. I signed the card on October 28, 1965, at Little Siberia. The card was given to me by George Smith, who said that the signature on the card was to have an election, that signing the card, it would authorize the union to have an election for the union to come in. Smith said no one would see the cards, because they would be on file, and I believe he said Washington. He did not say that the union would use the card for any further purpose, any pur- pose other than an election. On the basis of the testimony of Williams, I find that her card should not be counted. In Morris & Associates, Inc., 138 NLRB 1160, 1164, the Board stated that cards "secured on a representation of the union agent that `other than for the election, cards were not binding on people that signed them,' . . . were unreliable for the pur- pose of establishing the Union's majority status." The Card of Bill Hardison This employee was called as a witness by the General Counsel. Hardison said that he signed his card at a meet- ing of union adherents on October 28, 1965. He said that George Smith gave the cards to the persons present who passed them around. When asked what Smith said about the purpose of the cards, Hardison testified, "He said that he had to have enough signatures on the cards for him to go down and get an election." The General Counsel, a moment later, repaired the damage of the last answer by asking if Smith said "the only purpose for this card was - or this card is only to get an election." The witness replied in the negative. However, on further cross-ex- amination the witness answered as follows: Q. (By Mr. Yacullo) In the conversation you had with me on Monday, isn't it a fact that you told me that the only purpose for which you signed the card and which Mr. Smith told you, was to get an elec- tion? A. That's right. The only reason I heard. Q. Then he did say to you that it was only to get an election? MR. GORA: Objection. The question has been asked and answered. TRIAL EXAMINER: I am not sure. I will overrule the objection and let him answer. Q. Is that right? A. That's right. In the light of all the evidence as to the signing of these cards, I find that this uncertain and contradictory testimony of Hardison is insufficient to establish by a pre- ponderance of the evidence that the card authorized the Union to represent Hardison. Therefore, I find that Hardison's card should not be counted. The Card of Jerry Alexander This employee's card was submitted in evidence upon the testimony of Hazel Williams that she saw Alexander appearing to fill out his card at the same time as she filled out her card at a union meeting. The signature of Alex- ander was also authenticated by John Harris, a qualified handwriting expert. Alexander was unavailable as a wit- ness because he is presently on duty with the Army in Korea. Upon all the evidence in the case, I find that the card of Alexander should be counted. The Untimely Signatures on the Cards of Herbert Gorman and Carmie McKay The Company contends that the authorization cards of these two employees were obtained at a time which was after the Union's demand for recognition and the Com- pany's refusal of recognition and bargaining. At the hear- ing, counsel stipulated that the demand letter of the Union was sent by George Smith on January 20 and received by Margolin in the ordinary course of the mail on January 21. Margolin testified credibly and without contradiction that he actually received the demand letter 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "in the early morning mail" and went to his attorney's of- fice where the reply letter was written and mailed that day. The testimony of counsel for the Company cor- roborated this testimony of Margolin and further pin- pointed the drafting and sending of the reply letter to sometime around 11:30 a.m. on January 21. The authorization cards of Herbert Gorman and his stepson, Carmie McKay, were not signed until around 4 or 5 p. in. on J anuary 21. Edwin L. Webb testified that he went to the home of Gorman, accompanied by his wife, for the purpose of signing up Gorman and his stepson, Carmie McKay. Webb said that they arrived at the Gorman home sometime between 3 and 5 p.m. Gorman was home but his stepson, Carmie McKay, was not. So Webb and his wife waited for McKay to return. When Carmie McKay arrived at the home, he was given a card which he signed and returned to Webb's wife. Nancy Webb testified that she and her husband reached the Gorman home around 3 or 4 p.m. and that they waited approxi- mately an hour for Carmie McKay to return home. On this visit both Gorman and McKay signed cards for the Union. However, it seems crystal clear that the signatures of Gorman and McKay were obtained at least 4 or 5 hours after the demand of the Union for recognition and bargaining was received by the Company, and, indeed, some hours after recognition and bargaining had been refused by the Company. The Board has traditionally held that a union's majority status in a unit must be determined as of the time that the union demands recognition, and if the request for recogni- tion and bargaining is made by letter that the all important time for determination of the union's majority status is the time at which the company receives the letter.8 The record in this proceeding is barren of any later de- mand for bargaining made by the Union upon the Com- pany subsequent to the receipt of the original demand during the morning of January 21. Therefore, the cards of Gorman and McKay may not be counted. All cases on the point hold that the fact that the Union may have sub- sequently secured cards from employees in the unit is irrelevant.9 The Scott case, supra, appears to be on all fours with the instant case. The Cards of Ed and Nancy Webb The basis of challenging these cards is found in the testimony of Margolin and employees Santiago and Thomas. Margolin testified that some days after the elec- tion, Nancy Webb approached him in front of the plant and said she was sorry for all the trouble her husband and she had caused Margolin. She then said that they were forced to do what they did because Business Agent Smith had said to her husband and her that they were far behind in their union dues and if they did not help in organizing the Company, they would be blackballed by the Union and they would not be able to get a job in the Los Angeles area. If they assisted the Union, these back dues would be cancelled. Employees Mary Santiago and Nadine Thomas testified to similar conversations with Nancy Webb. Nancy Webb denied that she had told Margolin or the employees that she was threatened as stated. 8 Rea Construction Company, 137 NLRB 1769; Spitzer Motor Sales, Inc., 102 NLRB 437. Obviously, Ed and Nancy Webb had been members of the Union for a long time before the Union attempted to organize the Company. Without making a finding as to the fact of whether the threats related were made, I find that as longtime members of the Union their cards should be counted. The Alleged 8(a)(1) Conduct a. The meeting of January 10 Jose Medina, Jr., was one of the leading adherents of the Union. He was called as a witness by the General Counsel. His testimony as to his signing of his authoriza- tion card has been referred to previously. Medina said he was a folder operator at the time of the election. Medina testified that on approximately January 10, which date is a few days after the Union filed its petition in the representation case, Kramer, the superintendent of the plant, told him and other employees that Max Margolin, the Employer, wanted to talk to the employees. Accord- ing to Medina, Margolin began by saying that he knew about the union meetings that the employees were having with George Smith and that he knew where these meetings were held, at Mary's Cafe. He then said that unions were good and in fact his father had worked many hours per day before unions were established. He said that the United States needed both union shops and nonu- nion shops. Margolin then said that if the Union came in to his shop the employees, excluding Dick Kramer and Isabell Fisher, would be found not qualified to meet the standards of the Union; that the employees were not jour- neymen and journeywomen and that the Union would replace them with members of the Union who were not working at the time. Then Margolin said that unions were prejudiced toward Mexicans and Negroes and he quoted some statistics concerning Negro membership in unions in general and he pointed directly towards Medina and asked him if he knew the percentage of Mexicans in the Union. Medina spoke up saying that he thought about 80 percent of the Union's membership was Mexican, but Medina's wife Tess said that he did not know what he was talking about. Medina became angry and lost track of what Margolin was saying, but when he started to listen again he heard Margolin say as far as he was concerned he would close his doors if the Union came in. Employees Williams, Birdsong, and Santiago corroborated the testimony of Medina, Jr., except to that part about Mar- golin saying that he would close his doors. Medina is the only witness who testified to that statement. Called as a witness on behalf of the Company, Max Margolin, its president, stated that early in January he called a meeting of his employees. According to Margolin he told the assembled employees that he had tried to build the business on integrity and in treating all individuals without prejudice, that he had always tried to find skilled workers for his plant and he had no objection to any man or woman because of race, color, association, clubs, reli- gion, or union membership. Margolin said that he told the employees about an article which he had recently read in one of the national magazines, which stated that in the overall picture of unions in the United States, there was a very small number of minority groups admitted as mem- B N L.R.B v Rural Electric Co, Inc., 296 F 2d 523, 524-525 (C.A. 10). See also N L R B v Scott & Scott, 245 F 2d 926, 927-928 (C A 9). SNAP OUT BINDING & FOLDING INC. 325 bers to the unions. When Margolin said this, Jose Medina, Jr., seemed to take offense, and Medina said that in the Union in Los Angeles minority groups had a preponde- rance of 80 percent in the membership. Robarge, another folding machine operator, rose and told Medina, Jr., that was nonsense. Robarge said it was not true and was not close to being true. When order was restored, Margolin continued saying that his father had been a union man and a dedicated Socialist, who believed in fair pay for a day's wages and that all men were entitled to that. He then said that there was good and bad in everything including unions. He then told them they had to figure out what was good for themselves. Margolin then said that he was well aware of the Union and its rules and regulations concern- ing apprenticeship and journeymen. He then told the em- ployees that in order to become a journeyman, that an employee had to have 5 years of experience at the trade. A male had to know how to handle more than one piece of equipment and he had to be able to check out on the equipment and do a professional job. He told the em- ployees that a female had to be a member in good stand- ing for 3 years and had to qualify in all categories of her particular field. Margolin then said that he thought Isabell Fisher, whose experience had been extensive, would be able to qualify as a journeywoman, but he did not think that any of the other girls could qualify. He said that at that time he estimated that the Company had at least six apprentices for each journeyman. As the basis for his knowledge on these points Mar- golin said that he received information periodically from the Printers Institute of America, an employer organiza- tion which sent material to employers. He said that he had obtained the present scale of wages of the Union in the Los Angeles area from Forbus, of the Printers In- stitute of America. At this point in his testimony the wit- ness produced a document entitled "Wage Scale and Agreement, Bookbinders and Bindery Women's Local No. 63, 63-A" and pointed out that section 10, covering apprentices, said the following: APPRENTICES The Employer shall not employ boys or girls as ap- prentices who are under 16 years of age. The ratio of male apprentices shall be based on the number of journeymen regularly employed. The ratio of female apprentices shall be based on the number ofjourneywomen regularly employed. The ratio of apprentices to journeymen, including proprietor members regularly working at the trade, shall be as follows: One (I) apprentice to 4 journeymen. Two (2) apprentices to 8 journeymen. Three (3) apprentices to 12 or more jour- neymen. Except that for each additional five (5) journeywomen employed over fifteen (15), one (1) additional apprentice may be added. Male apprentices shall be required to serve five (5) years apprenticeship, and female apprentices three (3) years apprenticeship; except as provided in Sec- tion 3 for specialized work. 10 Margolin testified that he told the employees that they should give serious thought to this aspect of the area con- tract of the Union, since its enforcement might mean that they would be ineligible to work in the shop if the Union came in. Margolin denied that in the course of this speech he mentioned Mary's Cafe or any other meeting place. He also denied that he said he would close the plant if the Union came in. b. The Alameda Inn incident Ruth T. Brown, named Varrin prior to her divorce, testified as a witness for the General Counsel. She identified her authorization card and to some extent described the work which Isabell Fisher performed. Brown testified that around the first of January, Margolin invited her and some other female employees to have dinner with him at a restaurant known as The Alameda Inn. At this dinner Margolin told all the girls that he wanted them to know that he had taken a 25-cent-per- hour raise away from Brown. Margolin had given Brown such a raise some 3-4 weeks before. When this dinner meeting was over, Brown had a conversation with Mar- golin in his car in the parking lot. In this conversation Margolin said that he figured that Brown had something to do with the Union and that he knew Jose Medina, Jr., did, and that he was the one that was causing all the trou- ble. Then Margolin said that it just wouldn't work because he would close the plant down before he would let the Union get in. Margolin's version of this incident is far different. Mar- golin in his testimony stated that in approximately early December, Brown came to him and said that she was hav- ing a "rough time" because of the divorce she was getting, etc. Margolin knew of her straitened circumstances. Brown asked Margolin for a personal loan. Margolin re- jected the idea of the loan, but agreed to give Brown a raise of 25 cents per hour, on condition that she keep the raise secret because he didn't want the other female em- ployees to become discontented. According to Margolin the raise went into effect, but a few weeks later he noticed that the other female employees were cool to him and didn't give him their usual friendly greeting in the morn- ing. He inquired what was wrong and Isabell Fisher said that the girls were unhappy with Margolin because he had given a raise to Brown of 25 cents an hour more than the other girls, and in their opinion Brown did not deserve that kind of money. Margolin decided to ask the girls to meet with him at the Alameda Inn because he wanted to explain to them why he had given Brown the raise. When the girls met on this night, he asked Brown to tell the girls in her own words the reason why Margolin had given her the extra money; that he did not wish to speak, but wished her to. Brown then went on to tell the girls of her personal troubles and her involvement in a divorce in which her husband had left her destitute. Brown ex- plained that Margolin had agreed to give her a raise tem- porarily to help her out of her financial difficulties. At the meeting Margolin asked Brown if he hadn't asked her to keep quiet about the raise because it had nothing to do with her ability relative to the other girls ability. Brown admitted that Margolin had made such a request. When 10 Section 18 entitled "Conditions" and section 2 entitled "Employ- ment" should also be noted. 308-926 0-70-22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown finished, Margolin told Brown and the other girls that he felt that he had made a mistake, and for that reason he was taking back the 25-cent raise he had given Brown and he wanted the girls to know that they were all on an equal basis. Margolin said that as he left the restaurant, Brown called him aside and asked to talk to him. They went out- side of the inn and because it was cold they both got into his car. Brown proceeded to tell Margolin how sorry she was about the whole incident. Margolin asked her why she had told the other girls about the raise after he had asked her not to. She said that she was very sorry that she had done so, but had no excuse. Margolin denied that he had threatened to discharge Brown in the con- versation in the car or had threatened to close the plant, or that he said Medina, Jr., was the,cause of the union trouble. c. The late January meeting Late in January, Margolin held another meeting of employees, this time at Automated. In his speech he told the employees that the Company was losing or- ders, which it previously received, because of union pressure on the Company's customers. A few days later, according to employee Birdsong, Margolin told a group of employees that the Union was responsible for their layoffs. According to employee Hosey, Margolin said that the Union would replace them with more experienced union members and that the Union did not want any Negroes or Puerto Ricans as members. Hosey also testified that Margolin said that the Union was made up of gangsters and that he would close down both of his shops before he would allow it to come into his business. For his part, Margolin testified that he had escorted these employees through the plant on this occasion because they had told him that they had some doubts about whether or not their layoffs were due to lack of work. He showed them that operations in the plant were practically at a standstill and he told them that the Union had been going to customers of the Company and bring- ing pressure on the customers not to give their business to the Company; that this boycott had been effective; and that they had lost a good deal of business. Margolin told them that their layoff was due to this activity on the part of the Union (not the employee's activity as stated in the complaint). In his testimony Margolin said he was reluc- tant to name those customers who had withdrawn busi- ness from the Company at the request of the Union because those companies did not want to be drawn into this controversy, but when he was directed to name the companies by the Trial Examiner he said that Lubin of Parker and Sons, Steve Wirtzel of Western Lithograph Company, and Miss Janet Gallagher of Moore Business Firms, had all told him that they were forced to withhold orders from his plants because of pressure from the Union, with whom these firms had labor contracts. The General Counsel offered no evidence contrary to this testimony. Margolin denied that he had made the statements at- tributed to him by employees Hosey and Birdsong. In the course of his testimony, Margolin admitted that on January 26 he distributed a flyer or leaflet to the em- ployees. This leaflet was signed by an "Employee Com- mittee to Vote No." Margolin admitted that there was no such committee but that he received the flyer from the Printers Institute and had distributed the flyer in the in- terest of management. This flyer issued by the nonex- istent committee urged the employees to vote against the Union but I cannot perceive in it any threat of reprisal or promise of benefit which would make it a violation of Sec- tion 8(a)(1) of the Act. Certainly this flyer constituted grounds for setting aside the election, but falls short of being a violation of Section 8(a)(1) of the Act. 11 d. The affidavit incidents The election was held on January 28 and thereafter the Union filed objections. In investigating company charges against the Union, counsel for the Company had inter- views with employees Birdsong and Hosey. Shirley Birdsong testified that after the election she was called to the office and introduced to Victor F. Yacullo, counsel for the Company, by Margolin who then left. Yacullo assured her that the interview was con- fidential, and then asked her if the Union had threatened her in any way before the election. She answered, "No," but Yacullo acted as if he didn't believe her and continued to ask her questions. She told him that at the union meetings everybody had treated her nicely. Meanwhile, Yacullo was writing out a statement which he asked her to sign. She said that she would not sign anything. After she left the office she met Margolin and told him she had not signed the statement, and everything seemed to be "tense" and Margolin appeared "upset." He said something about her being ungrateful, as she went back to her job. Employee Lorraine B. Hosey testified that she received two phone calls from Margolin in January or February. In the first conversation, Margolin asked her if his lawyer could be present when she gave her state- ment to an agent of the Board. She said that he could. About a week later, Margolin called a second time and asked if she had given a statement to the Board. She said that she had. Then Margolin reminded her of her promise and asked her why she had not called him when she received an inquiry from the Board. She replied that she had changed her mind. Then he said, "After all I have done for you." Hosey said he had not done anything for her. Then Margolin said, "As far as I am concerned, I have washed my hands of you, and Miss Birdsong, and you are through." She asked him if he was threatening her and he replied, "No. No. I am not trying to threaten you," but, "you better not go down to the Labor Board and tell those people that I threatened you, because I have my wife here, and my lawyer here, and a tape recorder." Hosey said she was not going to tell anyone anything that was not true. Victor F. Yacullo, counsel for the Company, testified that he interviewed Birdsong in his investigation of Case 21-CB-2680, which the Company had filed against the Union. He said that in his interview Birdsong told him that at a union meeting Business Representative Smith had told the people that if the Union got in, the people 11 Blue Flash Express, Inc , 109 NLRB 591 SNAP OUT BINDING & FOLDING INC. 327 who did not vote for the Union would lose their jobs. Hosey had been with her on that occasion. Birdsong told Yacullo that she would not sign an affidavit to that effect until she had talked it over with Hosey. Yacullo said that he did not draft any statement in the course of the inter- view and he did not on that occasion ask Birdsong to sign any affidavit. Yacullo testified in a straightforward manner. I credit his testimony. In his testimony Margolin stated that at one employee meeting Birdsong and Hard- ison asked him if it was true that if the Union got in the plant, those employees who voted against it would be discharged. As to Hosey, Margolin in his testimony said that Hosey had said that his lawyer could be present when she gave her statement to a Board agent. Later he heard that she had given her statement to the Board agent without his lawyer being present. He phoned Hosey and asked her what had happened. Hosey said she had tried to noti- fy Margolin that the interview was coming up but could not locate him. Margolin said he could not understand that because he was at either plant 10 to 12 hours per day. Then Hosey said, "Are you threatening me?" and per- sisted in that question. He denied that he threatened to discharge Hosey at any time. In his testimony employee Robarge said that about 2 weeks before the election Margolin stopped at his machine and asked him what he thought of the election coming up. Robarge replied that he did not "know much one way or the other." In the course of further remarks Margolin said that he felt the Union was cutting off work from the shop and if he could prove it, he would have a good lawsuit against the Union. In his testimony Margolin said that when he hired Robarge, both men knew that Robarge was a member of the Union. Margolin had asked about Robarge's ex- perience and it all was obtained in union shops. Margolin said that he never cared whether Robarge was a member of the Union or not, and that his observation at this time was a casual remark to Robarge about an item of interest to both men. It is undisputed that in one of the meetings during January conducted by Margolin for employees that he asked Burton Chase to relate how he had been threatened by an adherent of the Union. Chase related the conversa- tion that he had with Webb concerning sabotage of the work of employees who were not in favor of the Union. In his speech Chase did not name Webb but otherwise he gave the contents of that conversation. The summary of evidence, set forth above, is not in- tended to be an extensive or exhaustive narrative of all the testimony introduced by opposing counsel in this proceeding which lasted for 5 trial days, and is spread in five transcript volumes of testimony. It is, however, a narration of the high points of testimony designed to give the reader a fair picture of the opposing testimony, and the important evidence upon which the case must turn. Whether any certain testimony or document is mentioned in this narrative or not, all testimony ano all documents have been carefully considered. If any such are not men- tioned herein, the omission is only in the interest of brevi- ty. Concluding Findings It"has been set forth earlier in this report that I have found Aviles to be a rank-and-file employee and found that several of the authorization cards could not, under existing law, be counted as valid designations of the Union. Therefore, it is found that at the time of the Union's demand for recognition and bargaining it did not possess majority status in the appropriate unit. It is also found that on January 21, 1966, the Company refused to recognize and negotiate with the Union because it did "not believe that the Union represented an uncoerced majority of the Company's employees." It is found that this refusal, for the reason stated, was in good faith. For the. above reasons the paragraphs of the complaint alleging a violation of Section 8(a)(5) of the Act should be and hereby are dismissed. The 8(a)(1) violations present varying problems. I find that the Company committed no violation of Section 8(a)(1) by Margolin's discussion of the area contract of the Union with the employees and pointing out to the employees that under the area contract many employees might not qualify to retain their jobs. It is undisputed that if the area contract, concerning the required number of journeymen to be employed in relation to apprentices, were applied to the Company's operations that many of the employees could not qualify for work under the contract. George Smith, business representative of the Union, was present all through the hearing and he did not testify as to any special arrange- ments by which the employees could continue to hold their jobs. Nor did the General Counsel show in any other way how they could retain their jobs under the working rules set forth in the area contract. I find that the discussion of this phase of the situation by Margolin was protected by Section 8(c) of the Act and by the free speech provision of the United States Constitution. In discussing unions in general and their acceptance of Negroes and Mexicans into membership, Margolin cer- tainly ventured upon very dangerous ground, but I can find no allegation in the complaint that his introduction of that topic in his speech constituted a violation of Section 8(a)(1). The topic seems to have been discussed by the employees but Margolin's participation is not alleged to be a violation in the complaint. In my judgment, this discussion too is protected by Section 8(c) of the Act, for it is a notorious fact that many unions do not accept as members persons of some minorities. Until' unions have a better record in that regard, they will be plagued by ad- verse comment on the subject by employers and others. I can perceive no intimidation, restraint, or coercion in Margolin's introduction of this topic in his speech. It is undisputed that on January 26, 1966, Margolin distributed to employees a one-page "flyer" or "dodger" purporting to be issued by an "Employee Committee to Vote No." This urged the employees to vote against the Union. As previously stated, while the distribution of this flyer might be cause for setting the election aside, I find it does not constitute a violation of Section 8(a)(1) of the Act. In the distribution of this flyer, Margolin, according to the testimony of employee Nancy Webb, refused to give her a copy of the flyer. The General Counsel alleged and contended that this refusal by Margolin was an unfair labor practice. I cannot perceive how this refusal could be an unfair labor practice violation of Section 8(a)(1). It might have been a discourtesy on the part of Margolin, but there is certainly no threat or promise in his conduct on this occasion. It is undisputed that on January 28 the Company distributed to the employees a one-sheet campaign 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pamphlet over Margolin's signature. This pamphlet stated what purported to be a comparison of the take- home pay of each unit employee as of that date and the take-home pay of each unit employee if the Union won the election. The current pay was based on the 40-hour workweek at straight time at the employee's current rate. The projected paycheck was based upon a 35-hour workweek at straight time at the same hourly rate, minus deduction of union dues, initiation fees, and assessments. These pamphlets could have been inter- preted by unit employees to mean that by selecting the Union, the employees would lower their own wages but the pamphlet, on its face, was campaign literature, and while its argument might appear to be patently fallacious, that does not constitute a violation of Section 8(a)(1). Margolin as a witness testified in a frank and candid manner. I credit his testimony fully as to what was said and done on the occasions on which he made speeches to employees. I do not credit the testimony of employee Jose Medina, Jr., that in one of the speeches Margolin said that "he would close the plant if the Union came in" and that Margolin stated that he knew the union meetings were being held at Mary's Cafe. In contrast with this, em- ployees Brissette, Stevens, Fernandez, Aviles, and Fisher, in addition to Margolin, testified credibly that Margolin did not mention the closing of the plant or the fact that union meetings were being held at Mary's Cafe. On these points I find that Medina's partisanship has led him into false testimony. The testimony of Mrs. Brown as to the incident at the Alameda Inn is also rejected. As a witness her demeanor and bearing were not such as to impress one favorably. She seemed to be a disgruntled employee, who was vin- dictive toward Margolin, who had befriended her in the first instance, but who had found it necessary to take back her temporary raise. I do not credit her testimony. Employee Hosey testified that Margolin told her and other employees that the Union did not want any Negroes or Puerto Ricans as members, that the Union was not composed of anybody but gangsters, and that "he would close down both shops" rather than have the Union come in. Hosey's bearing and demeanor did not in- spire confidence and she appeared hostile to Margolin and the statements she attributes to Margolin are not con- firmed by other witnesses. I do not accept Hosey's testimony. On the conflict of testimony between Edwin L. Webb and Burton Chase, I must resolve that in favor of Chase. As a witness Chase was straightforward, candid, and per- suasive. Webb admitted that meetings, conversations, and phone calls were made at the time and place related by Chase, but he tried to give these an innocent aspect. I am not persuaded that they were innocent. On the contra- ry, I believe that Webb threatened Chase, just as Chase related. I deem this fact important, because part of Webb's threat was imparted to all the employees in the appropriate unit in the course of Chase's remarks at one of the company-employee meetings. Thus, the election at- mosphere for all employees was tainted by both the Em- ployer's objectionable election conduct and by the Union's coercive threats, which were equally objectiona- ble. The Act guarantees that employees may choose their representative without such conduct by either the em- ployer or the union. I also find that Margolin's conversation with Robarge did not constitute a violation of Section 8(a)(1).12 There has been much testimony reviewed in this case but there has been a "thundering silence" from the vast majority of employees. There were 41 employees; 20 of them signed cards for the Union. Strangely enough, the only segment of these who heard threats from manage- ment was Medina, the union leader, who of all the em- ployees is the only one who heard Margolin at any meet- ing raise the traditional claim of organizing unions, "He said if the Union came in, he'd close the plant." Of course, Brown said that Margolin also used the same slogan-"that he would close the plant if the Union came in," but this occurred only at a time when Brown and Margolin were alone, in the car at the Alameda Inn after the other girls had left the meeting. It is highly sig- nificant that no other employee corroborated the testimony of either Medina or Brown in this regard. I ap- praise their testimony as false and therefore reject it. In like manner, employee Hosey attributed to Margolin certain statements; Birdsong, also a certain statement; and Hardison another statement, but none of these cor- roborated the other. The General Counsel apparently gathered scraps of testimony from the bottom of the bar- rel to buttress his case, but the only employee-accusers of Margolin are the leading union adherents, two of the girls first laid off for lack of work because of the union boycott, and Brown, the destitute employee who talked too much about Margolin's charitable raise to her, which forced him to withdraw it. The employee witnesses produced by the Company did not corroborate these employees in any particular. Nor did the union-oriented employees who testified as to their authorization cards and the duties of supervisors. The remainder of the employees who voted in the secret elec- tion did not testify. Their silence is a factor when we view the case as a whole. I am sure that the General Counsel in his investigation of this case interviewed practically all employees, so, when the strongest items of evidence which he can produce are these isolated witnesses of du- bious veracity to isolated, uncorroborated statements, the trier of the fact must conclude that the pattern of threats, coercion, and intimidation is more imagined than real; e.g., Birdsong's testimony in the affidavit incident that Margolin was "upset." Nothing can transform being "up- set" into an unfair labor practice. This is not the kind of testimony upon which any person should be found guilty of a violation of Federal law. This testimony has the clunk of contriviance and not the ring of truth. By inadvertence, earlier in this Decision it was not found, as it is now, that the authorization card of Burton Chase was not a free, voluntary designation of the Union and should not be counted in the determination of majority. RECOMMENDED ORDER Therefore, for reasons stated above, the complaint herein should be and hereby is dismissed in its entirety. 12 Blue Flash Express, Inc, 109 NLRB 591