Fontana Bros.

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leonard Fontana, Frank Fontana, Marino Fontana, Nicholas Fontana, Anthony Fontana , and Albert Fontana, co-partners, d/b/a Fontana Bros. and Luggage Workers' Union , Local 60, I.L.G.U. & N.W.U., AFL-CIO. Case 29-CA-800 January 26, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 2, 1967, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, 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 Decision and a sup- porting brief. The Respondents filed a brief in sup- port of the Trial Examiner's Decision, and also cross-exceptions and a 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, briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only as far as consistent herewith. As the Trial Examiner found, when the Respond- ent learned on Tuesday, August 2, 1966, that the Union had filed a representation petition with the Board (Case 29-RC-549), they proceeded not only to interrogate their employees as to whether they had signed union authorization cards, but also to ask them why they had done so and to threaten that the factory would be closed if the employees signed for the Union. I As the Trial Examiner further found, the Union represented a majority of the em- ployees in an appropriate unit when, almost simul- taneously with the filing of its representation peti- tion, it requested a conference for purposes of negotiating a contract. The Respondents refused to grant the request. The Trial Examiner also cor- rectly found that the August 30 consent election, based upon the representation petition and which resulted in a tie vote, has been set aside on the In addition to the threats which the Trial Examiner specifically found to be coercive, we also find violative of Section 8(a)(1) Leonard Fontana's conduct in exhibiting to employee Diaz a letter inviting Respondents to move its plant to the State of Florida. Leonard Fontana admitted that he considered Diaz to be the spokesman for the employees at that time and it is fair to infer that he expected the contents of the letter to be passed on Union's objections of improper interference by the Respondents. We agree with these findings of fact. On these facts, the Trial Examiner concluded that the threats constituted a violation of Section 8(a)(1) of the Act. We agree with this conclusion. The Trial Examiner further concluded, however, that the interrogation was lawful because, after the threats, the employees were told that they were not being threatened with reprisal; the Respondents' refusal to grant the Union's request for recognition was in good faith, apparently because of the Union's conduct in proceeding to an election; and the Section 8(a)(1) violation was isolated and did not warrant a formal cease-and-desist order, but did warrant dismissal of the complaint. It is with these conclusions that we disagree. The Trial Examiner's basic error stems from his misconception of present Board policy. Thus in Blue Flash, cited by the Trial Examiner,2 interrogation was found lawful only because, unlike here, the employer (1) had a legitimate purpose in ascertaining the union's majority, and commu- nicated it to his employees and assured them against reprisal before interrogating them; (2) limited his interrogation to whether or not they wanted the union to represent them; and (3) en- gaged in the interrogation in a total context other- wise free from union hostility. The Supplemental Decision in Struksnes Construction Co., Inc., 165 NLRB 1062, expressly revised the Blue Flash criteria and held that an .employer would be per- mitted to ask his employees whether or not they wished to be represented by a certain labor or- ganization, only under five enumerated safeguards. Here, contrary to the criteria set forth in that case, the interrogation occurred while a petition for a Board election was pending; the Respondents did not adequately communicate to the employees either that the only purpose of the interrogation was to determine the truth of the Union's claimed majority or that there would be no reprisal; and the Respondents also engaged in threats which created a coercive atmosphere. Moreover, the questioning was not done by secret ballot. Furthermore, Respondents' poll was taken with knowledge of the pendency of the election petition and did not serve any legitimate purpose, and, in addition, employees were questioned under conditions suggesting that the interrogation was but a step in Respondents' campaign to dissipate employee support of the Union. Thus, the interrogation was extensive, in- volved inquiries as to why employees wanted the Union, and occurred after the Respondents threatened to close the factory because of the by Diaz to other unit employees. In the context of Respondents' other contemporaneous unfair labor practices, it is also reasonable to infer, and we find, that Leonard Fontana's aforesaid action was designed to impress upon employees that Respondents might move its plant to Florida if it was unionized, and, as such constituted an implied threat of reprisal, - Blue Flash Express, Inc , 109 NLRB 591. 169 NLRB No. 56 FONTANA BROS. 369 Union in violation of 8(a)(1) as the Trial Examiner found. Accordingly, we find that the Respondents vio- lated Section 8(a)(1) by the threats and the interro- gations3 and that, by virtue of such conduct, Respondents' denial of recognition exhibited a re- jection of the principles of collective bargaining and an effort to gain time in which to dissipate the Union's status as majority representative. Ac- cordingly, we find that Respondents violated Sec- tion 8(a)(5) and (1) by refusing to grant the Union's recognition and bargaining request.4 Moreover, we find that our affirmative order that the Respondents bargain collectively with the Union on request is an appropriate remedy for their violations of Section 8(a)(1), apart from their violation of Section 8(a)(a)(5). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respond- ents, Leonard Fontana, Frank Fontana, Marino Fontana, Nicholas Fontana, Anthony Fontana, and Albert Fontana, co-partners d/b/a Fontana Bros., Brooklyn , New York, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concern- ing their union membership or activities , in order to induce them to reject Luggage Workers' Union, Local 60, I.L.G.U. & N.W.U., AFL-CIO, as their collective-bargaining representative, threatening them with the closing of their factory at Brooklyn, New York, to discourage their union membership or activities ; or in any other manner interfering with , restraining, or coercing employees in the exer- cise of the right to self-organization , to form labor organizations , to join or assist Luggage Workers' Union, Local 60, I.L.G.U. & N.W.U., AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. (b) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other terms and conditions of employment with Luggage Workers' Union , Local 60, I.L.G.U. & N.W.U., AFL-CIO, as the exclusive representative of em- ployees in the following appropriate unit: All production and maintenance employees, and shipping and receiving employees, em- ployed at Respondents ' factory at Brooklyn, New York, excluding office clerical em- ployees, temporary employees , guards, watchmen, professional employees , and super- visors as defined in 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 Lug- gage Workers' Union , Local 60, I.L.G.U. & N.W.U., AFL-CIO, as the exclusive bargaining representative of its employees in the aforemen- tioned appropriate unit at its factory at Brooklyn, New York , and if an understanding is reached, em- body such understanding in a signed agreement. (b) Post at its factory at Brooklyn , New York, copies of the attached notice marked "Appendix. 115 Copies of said notice, on forms provided by the Re- gional Director for Region 29, after being duly signed by Respondents' representative , shall be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced , or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 3 See Cohen Bros Fruit Company, 166 NLRB 88 4 See Joy Silk Mills, Inc., 85 NLRB 1263; see also Bernel Foam Products Co., Inc., 146 NLRB 1277. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employeesthat: WE WILL NOT interrogate you as to union membership or activities in order to induce you to reject Luggage Workers' Union Local 60, I.L.G.U. & N.W.U., AFL-CIO, as your col- lective-bargaining representative, nor will we threaten you with the closing of our factory at Brooklyn , New York , to discourage your union membership or activity, or in any other manner interfere with , restrain, or coerce you in the ex- ercise of your right to self-organization , to join or assist the above-named or any other union, to bargain through representatives of your own 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choice , and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities , except to the extent permitted by Section 8(a)(3) of the Act. WE WILL NOT refuse to bargain collectively with Luggage Workers' Union , Local 60, I.L.G.U. & N.W.U., AFL-CIO, as the exclu- sive representative of all the employees in the. bargaining unit described below. WE WILL bargain collectively , upon request, with Luggage Workers' Union, Local 60, I.L.G.U. & N.W.U., AFL-CIO, as the exclu- sive representative of all the employees in the bargaining unit described below with respect to rates of pay , wages , hours of employment, or other terms and conditions of employment, and, if an understanding is reached , embody such an understanding in a signed agreement. The appropriate bargaining unit is: All production and maintenance em- ployees , and shipping and receiving em- ployees , employed at our factory at Brooklyn , New York , excluding office clerical employees , temporary employees, guards , watchmen , professional em- ployees , and supervisors as defined in the Act. LEONARD FONTANA, FRANK FONTANA, MARINO FONTANA, NICHOLAS FONTANA, ANTHONY FONTANA, AND ALBERT FONTANA, CO-PARTNERS, D/B/A FONTANA BROS. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fourth Floor, 16 Court St., Brooklyn, New York 11201, Telephone 596-3535. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner on May 1 and 2, 1967, at A corrected petition was filed on August 8 because the Union then learned the Company is not a corporation but a partnership; the amend- Brooklyn, New York, on complaint of the General Coun- sel against Fontana Bros., a partnership consisting of six brothers, herein together called the Respondent, or the Company. The underlying charge was filed on December 1, 1966, and the complaint issued January 31, 1967. The principal issue litigated is whether the Respondent vio- lated Section 8(a)(5) of the Act. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Fontana Bros., a partnership consisting of Leonard Fontana, Frank Fontana, Marino Fontana, Nicholas Fontana, Anthony Fontana, and Albert Fontana, is en- gaged in the manufacture, sale, and distribution of brief- cases, schoolbags, and related products, with its principal office and place of business in the Borough of Brooklyn, city and State of New York. During the past year, a representative period, the Respondent manufactured, sold, and distributed from its said place of business products valued in excess of $50,000, of which an amount valued in excess of $50,000 was shipped in interstate commerce directly to States other than New York. I find that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated and I find that Leather Workers Union, Local 60, affiliated with I.L.G.U. and N.W.U., AFL-CIO, herein called the Union , is a labor organiza- tion within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES In the latter part of July 1966, a number of the approxi- mately 37 production and maintenance employees of the Company signed cards authorizing the Union to bargain collectively for them, and by letter dated July 29 the Union advised the Employer it had been "designated by your employees," and requested a conference for pur- poses of negotiating a contract. The letter suggested a meeting for August 3; it was received by the Respondent on Monday, August 1. That same day the Union filed a petition with the Board requesting a Board-conducted election (Case 29-RC-549). The next day, Tuesday, the Company received a copy of this petition from the Re- gional Director, together with an invitation to a con- ference in his office for August 5. The Company responded to this communication and such a meeting was held on August.8, where an Agreement for Consent Elec- tion was signed.' An election was held under Board auspices on August 30, 1966, and of the 26 votes cast, 13 were for the Union and 13 against. Two days later the Union filed objections to the results, charging the Company with improper interference. The Regional Director investigated and issued his report on objections on November 22, in which he set the election ment did no more than identify the employer as six individuals. FONTANA BROS. 371 aside and directed that a new one be held. The Union chose instead to accuse the Respondent of having il- legally refused to bargain back on August 1, and it filed such a charge on December 1. The complaint alleges that on August 1, 1966, the Company "refused" to recognize the Union and bargain with it. It also lists: (1) 14 separate illegal acts of inter- rogation by the six owner-brothers; (2) six (plus) in- stances of threats to discharge employees, close and move the plant away, insistence upon greater production, and "other reprisals" by four of the brothers; and (3) three (plus) promises of wage increases, promotions to better paying jobs, advancement to office clerical posi- tions, and "other benefits and improvements" in working conditions by three brothers. The complaint then further alleges that at least four times the partners urged and sponsored the formation of an employee committee for the purposes of negotiating with such a group concerning working conditions throughout the plant, and that in fact, on August 29, the day before the election, as well as "on various other dates," all six brothers "bargained directly tnd individually" with the employees. The answer denies the commission of any unfair labor practices. The evidence falls far short of proving these multitudinous accusations. A. Violation of Section 8(a)(1) During the period of 1 month between the filing of the representation petition and the election, there were a number of conversations on the subject of the Union between various of the Fontana brothers and the em- ployees. The exact dates of each are not clear on the record, for most of the employee witnesses spoke no En- glish, and the one or two who did, spoke haltingly. About a week after August 1, Pedro Diaz and Heriberto Her- nandez, the two workmen who knew English better than the rest and could therefore converse more freely with the owners, who speak very little Spanish, were in the office at noon with Leonard and Marino Fontana. They said they were invited in. According to Diaz, Leonard asked: "What about it, the Union? ... Did you sign a card?" Diaz answered he had signed, and that the men "want more benefits.',' He said that he and Hernandez were there about 45 minutes or an hour talking, but that he re- called nothing else except that Leonard Fontana did say "Everybody have a free choice." Hernandez testified there were four Fontana brothers present, and that Leonard said: "What do people want? ... What are we doing wrong? ... why I had signed a card." He answered "more benefits, more money, Good Friday, and you should behave better with us." Leonard then said, "if we joined the union we'll have to pay money to the union. If we don't, we don't have to pay anything." Leonard then asked, still according to Hernandez: "What do people think? Can we have an election or not?" When he answered yes, "They [the Fontanas] said, `It's all right, so we go on to an election."' Diaz also testified that a few days later, still in the early part of August, Leonard showed him a letter at his work station, without comment. It is a form letter dated August 2, 1966, addressed to the Respondent from the Governor of Florida, inviting the Company to enjoy the "wonderful natural climate" and "growing consumer market" of the Sunshine State. Diaz paid no attention to the letter and asked did Leonard want it back, the answer was no, and Diaz threw it into a wastebasket. Only Leonard, of the Fontana Brothers, testified. He was called as an adverse witness by the General Counsel at the start of the hearing. The Respondent called no wit- nesses; it rested after the Government's case-in-chief. Leonard said he did not invite the two men into the of- fice, that they came themselves. He denied either he or his brothers asked that day if the employees had joined the Union; he said he was not sure whether the Union was mentioned. As to the letter about Florida, Leonard testified he had such a letter that had arrived that very day-he frequently receives such solicitations from distant places, and it may have been lying on his desk. He admitted saying, but jokingly, "some day I'm going to pack up and move to Florida and get out of this rat race." I credit the employees, for Leonard conceded that he had asked employees in the early part of August whether they had signed cards. There is also uncontradicted testimony of such interrogation by his brothers. Leonard explained his purpose was to check on reports the employees had been forced or threatened when they signed union cards, but there is no evidence of any coercive conduct by the Union. There is probably some truth in Leonard's story that the two men wanted to discuss some "problems" they had, even if it was he who invited them in, for they did talk perhaps an hour, and both Diaz and Hernandez remembered so little of what was said. Other employees also testified they were asked whether they had signed cards. Miguel Olmo said Leonard one day asked him "what side I was"; he said he was "the other side," and Leonard left him with "alright." A week later Leonard asked him the same question and again he gave the same answer. At this moment, still ac- cording to Olmo, Nino (Marino) Fontana came by and said: "Listen, Mike, where somebody doesn't like the place can get divorce here, can get divorce if you don't like the place." He answered: "That's right." Olmo also recalled that Leonard one day showed him "a piece of paper that belong from a check ... and there was five dol- lars marked on the place where the union dues supposed to be." Leonard said: "You see, you got to pay due for the union ... not every day, but every week. Who do you think pay for the car the guy from the union ride?" Anibal Lugo testified that Marino Fontana asked him whether he had signed a union card. Juan Davila said that one day Nick Fontana said to him and Israel Cruz, also an employee, "The union all racketeer ... Today you sign for the union and tomorrow we close the factory." Juan Hernandez also testified Marino Fontana asked had he signed a card. All this testimony about the brothers Marino and Nick Fontana stands uncontradicted, and the employee witnesses gave every appearance of sincerity. I credit them. Whether Nicholas meant it or not when saying a signature today meant plant closing tomorrow, his statement was nevertheless coercive upon the em- ployees, and therefore constituted a violation of Section 8(a)(1) of the !Act. As to the interrogations, of which there apparently were quite a few, they must be appraised in the light of other evidence also given by these same em- ployee witnesses. Especially is this important because the General Counsel relies very much upon these inquiries, which he calls improper, as one of the major supports for the request for an affirmative order to bargain with the Union now without a second election. As stated above, when Leonard Fontana first asked the two employees in his office why the others had joined the Union in the first place, he also assured them everybody had a free choice in the matter. Heriberto Hernandez 350-212 0-70-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quoted Leonard as saying "It's alright," after asking had he signed a card. Leonard once told Olga Cepero there "was going to be an election because some people wanted a union and others do not , so each one could vote the way he wanted." When Leonard asked Davila had he signed, the answer was no , and the employer then said "If you going to sign a card, you are free will." Davila also ad- mitted that when Leonard was talking to him about the Union in the office, he told the employee it was his privilege to join or not to join. The apparent basis for the multiple complaint allega- tions of wrongdoing is a meeting with the employees that took place in the factory on August 29, the day before the election. Testimony of how the meeting came about and what took place there was given by several employees and by Leonard Fontana, and their stories are virtually in full accord. Diaz said he approached Leonard Fontana to say he wanted a meeting of all employees with the Com- pany. "We have to get other employees and talk about the union and the benefits." Fontana's response was: "I don't think is proper not [sic - typographical error for now] to do it, but let me have a talk with my brothers ." Fontana's version is Diaz approached him with "You always sug- gested, recommended, if we have a problem come in and talk with you about it ... we'd like to have a little meet- ing." He asked why the man had waited until the last day, but consulted his brothers nevertheless . They advised listening to the men "because if we don't somebody else will." The employees were assembled - almost all towards the end of the lunch hour. Diaz opened up and spoke for about 15 minutes; Heriberto Hernandez talked perhaps 10 minutes, then Juan Davila and Israel Cruz each took about 5 minutes. As Diaz recalled : "We said, `The election is tomorrow, if we win and we lose we like to keep working the way it was before. Now, if we lost we still want benefits, because that is why we signed the cards , we want benefits for anybody, no matter the union,' and he [Leonard Fontana] said `We don't promise anything, but let's see what happen tomorrow."' The employees asked . for Good Friday with pay, shorter work hours, raises , and payment for time lost because of industrial accidents . The response was that because of the election the next day the partners not only refused to make any concessions , but would not even discuss any of the items with the employees. They promised to think about all this but refused to do or say anything at all. According to Fontana 's uncontradicted and credited testimony , Diaz said : "Possibly we can work out some sort of committee arrangement ... I don't think we need a union here ." He got no commitment whatever out of Leonard Fontana or his brothers. I credit the testimony of Leonard Fontana - because it is consistent with what several employees heard him say throughout the month of August - that during this August 29 meeting his brothers said : ". . . they could vote if they wanted to, we would- we were told by the NLRB that they could vote if they wanted to or abstain if they wished and they were to exercise their free choice . They could not be forced to join the union and they couldn't be scared out of joining." Diaz also testified that as he and Heriberto Hernandez were leaving, Marino Fontana said ". . . if the union win we going to be his enemy." Heriberto Hernandez gave vacillating testimony on this subject. He first quoted Marino as saying he was going to be "our enemy," then added a different version. "He said if the election was won he wasn't going to be our friend any more . I told him I didn't need any friends, I needed the job and to be well paid." A third witness , Davila, put these same words in Marino's mouth : "He said if the union won we know we no want to be friends any more." In his brief the General Counsel reads this last bit of testimony as relating to an earlier conversation between Davila and some of the Fontana brothers . There is a serious question on the record whether Davila was referring to an earlier meeting or the very group conference on August 29, of which the other witnesses spoke. B. Alleged Violation of Section 8(a)(5) 1. Appropriate unit The answer does not deny that the bargaining unit al- leged in the complaint to be appropriate is in fact ap- propriate ; it merely states the Respondent has no knowledge of the fact. It is precisely the unit as described in the consent-election agreement signed by the Respond- ent on August 8, 1966, and in which the election of Au- gust 30 was held without objection by the Company. There is nothing of substance in the record suggesting that the unit so set out in the complaint is not appropriate. Accordingly, I find that all production , maintenance, shipping, and receiving employees of the Respondent, ex- cluding office clerical employees , temporary employees, guards, watchmen, professional employees, and all super- visors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 2. Majority status There was placed into evidence a written payroll list prepared by the Company for purposes of the election of August 30 and delivered to the Regional Director at that time. Leonard Fontana testified it represents all em- ployees at work during the week starting August 1, 1966, the day he received the Union's letter requesting a bar- gaining conference . It was received into evidence with no objection by the Respondent . There are 39 names on the list, but two - Frank Fontana and Mathew Fontana - were excluded by stipulation at the hearing because they are sons of the employers . The starting total against which majority authorization is to be measured is there- fore 37 employees. The General Counsel offered into evidence 25 signed union cards, each literally authorizing the Union to represent the employee in collective bargaining . Twenty- three are dated during the month of July and stamped on the back as received in the Board's Regional Office on August 1 , apparently submitted in support of the Union's petition in Case 29-RC-549. The card of Lidia Tavares (Soto), although undated, is also stamped "received NLRB August 1, 1966." Juan Davila's card was received in the Board's office in January 1967. He testified he kept it in his possession for about a month because he was un- decided and then signed it "about 2 weeks before" the election. There is no question Davila did not sign his card until very late. He detailed a conversation with one of the owners on the subject of the Union in August, and then again repeated he had not yet as of that time signed his card. His card is not timely signed for purposes of this case, and cannot be counted. FONTANA BROS. 373 Three cards are in the names of Fabian Lopez Jiminez, Paul Garcia, and Juan Gonzalez Delgado. Their names are not on the payroll list and there is no other indication they worked after the month of July. These cards also must be ignored. One card is signed by Edwin Aponte, whose name also does not appear on the payroll list. The parties stipulated he worked 18-3/4 hours during the week starting August 1. His card will therefore be counted. The fact he worked the first week of August raises the total complement in the appropriate unit at the time to 38. Of the 21 cards to be considered, 13 were authen- ticated by the employees personally at the hearing. Of these Felipa Figueroa testified directly "I signed it to join the union." She also said "I didn't sign it because I didn't know how to read or write without my son at my direction." I find no merit in the Respondent's contention that this testimony does not suffice to prove this em- ployee intended to and in fact authorized the Union. The remaining eight cards are supported by the testimony of Juan Perez, who worked during July and sol- icited these people; the employees themselves did not ap- pear at the hearing.2 Perez testified that he distributed the eight cards in question to these employees personally, that he told each what it was for, and that soon thereafter, in some cases as long as several days, each one of the em- ployees returned the card to him signed. Subject to insig- nificant variances, he testified as follows about what he told each person when delivering the card: "I told him this card was for the purpose of bring the Union to the factory and he agreed."3 Perez also authenticated his own signature. While the date appearing on the card seems to have been written in someone else's handwriting, it is stamped "August 1-NLRB" on the back, and the Respondent stipulated he left the Company's employ on August 2, 1966. His card is therefore valid here, and the total number of em- ployees in the unit as of August 1, 1966, now becomes 39. The Respondent objects to reliance upon these eight cards as proof of union authorization because there is no eyewitness testimony going directly to the signing of the cards. There need be none.4 The Respondent has not as- serted that these, or any of the other cards received in evidence, were not in fact signed by the employees whose names appear both on the cards and on the payroll list. As stated above, it offered no evidence in defense, although it might have produced other record documents in its pos- session bearing the signatures of its employees. There is therefore no reason to question the reliability of the signa- tures. A more pressing argument of the Respondent is that the cards may not be used to prove majority authorization because almost all of the employees involved cannot read or speak English, and the cards are printed in English. As to the 13 which were identified by the individual em- ployees themselves, each testified either that he was told in so many words by the solicitor that the card was "for the Union," or that he signed because "he wanted the Union." In the context of their total testimony, and of the situation and general activity then in progress in the shop, it is clear to me that this latter group, when saying they "intended" by signing to join the Union, really meant that their frame of mind was shaped by what they were then told to be the purpose of the cards, whatever language was spoken among them at the time. They are largely Puerto Ricans and South Americans. If Spanish-speaking people in the United States can vote in political elections even before they master our own language, I see no reason why they cannot also indicate their attitude toward union representation by signing a card printed in English. And the Respondent has not advanced persua- sive argument to the contrary. Moreover, the word "union" appears several times in large and small letters on each side of the card. The very fact some employees kept the cards in their possession a day or more before returning them signed, is strong indi- cation they studied the matter well before deciding. The probability they knew what they were doing therefore becomes much higher. That the employees of the factory as a group in July and August well knew what all this card-signing activity was about, cannot be doubted, if only because of the many conversations between in- dividual workmen and the Fontana brothers, including the extended group conference of August 29, where much was said by the more articulate employees in Spanish. I think these cards are adequate proof of written authorization of the Union before the demand and refusal date. I find that on August 1, 1966, when the demand was received and bargaining did not take place, the Union in fact represented a majority of the employees in the ap- propriate bargaining unit and was, by virtue of the statute, the exclusive bargaining representative of all the em- ployees in the unit. Not every situation where a demand for immediate bar- gaining is followed by an election which the Union loses ends with an affirmative Board order to bargain forthwith. The test distinguishing one case from another has been variously stated as good or bad faith, as proof of an intent to dissipate the Union's established majority status, or as an inferred objective to deprive employees of their statu- tory rights to self-organization.5 However the question be phrased, it is not enough that the employer did not bar- gain and chose to go to an election; there must be something more to prove a violation of, Section 8(a)(5).6 2 The eight cards in question are signed by Ismael Gerena, Gladys Nu- nez, Gilberto Lopez, Jose Ramirez, Carmelo Mendez, Carmen Bonilla, Israel Cruz, and Valerio Soto 3 I Taitel & Son, 119 NLRB 910. Perez testified in Spanish through an interpreter . On cross-examination counsel for the Respondent asked did he know the name of the Union, and the answer was "Local 66 " In fact it is Local 60. After the transcript of the hearing was received by the parties the Respondent filed a motion "To Amend Official Report of Proceedings" to reflect brief comments voiced by the General Counsel and by Mr. Rosenberg, counsel for the Union, im- mediately after this response by the witness. Those words do not appear on the record because the lawyers were then speaking simultaneously; nor does the transcript reflect the Trial Examiner's statement then to the General Counsel not to interrupt the cross-examination or prompt the wit- ness. It is possible the General Counsel may have been under the impres- sion the interpreter had misquoted the witness speaking in Spanish. The Union filed no objection to the motion to amend, and the General Counsel filed a reply saying he did not object to any correction . I grant the motion because I clearly recall the General Counsel's statement at that moment that the Union was "Local 60." The transcript is accordingly corrected to show this statement of the General Counsel . Later, on redirect, he asked Perez for the name of the Union, and the answer was "Local 60." In the circumstances I have ignored this last answer I do not believe, however, considering the record in its entirety, that the evidence fails to prove the authenticity of the cards or the intent of the employees who signed. 4 J Duncan Company, 159 NLRB 112. Joy Silk Mills, 85 NLRB 1263. ' John P. Serpa, Inc., 155 NLRB 99. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor does it suffice that some violation or other of Section 8(a)(1) has been established.' As is true of any unfair labor practice complaint, there rests an affirmative bur- den of proof upon the Government , and it is not a trivial one. That the refusal to bargain was illegal must be shown by a preponderance of the substantial evidence consider- ing the record as a whole .8 This means that all pertinent factors must be appraised in their relationship to the heart question, those which indicate bad faith as well as those which point to the absence of unlawful motivation. I be- lieve the total evidence in this case does not support the complaint allegation that the Respondent violated Section 8(a)(5) of the statute. The one clear unfair labor practice committed by the Respondent is Nicholas Fontana's statement to em- ployees Davila and Cruz: "Today you sign for the Union and tomorrow we close the factory." This was illegal coercion in violation of Section 8(a)(1), and I so find. Marino told Miguel Olmo "when somebody doesn't like the place can get divorced here." He said the same thing to Heriberto Hernandez , who in fact was in process of divorcing his wife . This was sarcasm and certainly indica- tive that the Fontana brothers did not like the idea of a union in the shop and preferred these men should quit. But it requires a straining of words to hold, as the General Counsel suggests , that Marino was threatening to discharge the men . On August 29, he also said , if Diaz quoted him correctly, the men would be his "enemies" if they voted for the Union . It is also possible he used less intimidating language , for as Davila remembered it, the statement was Marino would no longer consider the em- ployees his "friends." Of course, he was not obligated to like the help ; the law only demands that the employer not hurt or threaten them if they choose to act through a union.9 There was much interrogation of whether the men had really signed cards and why they wanted a union at all. But not all interrogation is illegal . 10 And when the Board is faced with deciding whether such questioning during a union organizational campaign is or is not unlawful, the most critical aspect examined is whether or not the em- ployer gave assurance to the employees that his purpose in asking was not to threaten them with reprisal. Here time and again the Fontana brothers told the employees they were free to act as they pleased ; even Nicholas, the offender, said it was the employees ' privilege to join or not to join the Union. The complaint lists all sorts of promises of benefits, promotions , threats of discharge, invitations to form an employee committee instead of attempting to bargain through the Union, and direct bargaining with the em- ployees behind the Union's back. The only real evidence touching on these subjects is testimony that at the August 29 meeting Diaz - not any of the Fontanas - suggested there might be a committee in the event the Union lost the election the next day. I t Other things must also be considered . The demand letter and the . Regional Director's invitation to a con- ference in an office of the Federal Government reached Leonard Fontana almost simultaneously. On Monday he received the Union's letter, and on Tuesday a copy of the representation election petition with the Regional Director's communication. If he took time to think on Monday , this is to be expected of a small businessman acting without a lawyer. The demand letter said nothing of majority in so many words , and he could well have thought the Regional Director's invitation was a more pressing claim upon his attention. He answered promptly and agreed to an election without delay . And at the con- ference in the Board office the union representatives did not say to him, or to his brothers , that the Union wanted to bargain now, and never mind the election they were then arranging simultaneously. This is a case where the "refusal" to bargain, if refusal it can be called, came in the form of failure to respond to the first letter. The second one also being essentially a communication from the Union , via the Regional Director, there was bound to arise an element of uncer- tainty in the thinking of management. Good faith is a two- way street, and perhaps it would not have been too great a burden upon the Union at least to enlighten Leonard Fontana on what the basic demand was, instead of wait- ing until December before first repeating the demand of August 1 by filing the charge. Of much greater significance to the main question, however, is the meeting with all employees on August 29. The contentions of the complaint and the General Coun- sel's brief to the contrary notwithstanding , the partners did nothing wrong that day . Unless, of course, the law now is that an employer must not only refrain from speak- ing to the employees before an election, but he must also turn away and close his ears if any of them attempt to speak to him. They literally did no more than listen, telling the employees, before the meeting and after they had had their say, that nothing would come of anything they might ask or suggest. They even assured the em- ployees once again that they were free to do as they pleased at the vote the next day . In Diaz' own words, - he was the principal spokesman for the employees , - "they [the Fontana brothers ] said they can do nothing about it, because they have to wait until the next day until the elec- tion finished." With this there is no reason for questioning Leonard Fontana's testimony that "we said, we can't promise you nothing, there's an election coming up the next day. We will listen to you . What do you want? .. . We'll wait until all this is resolved by means of the elec- tion. We'll just listen. We couldn't promise them anything, we told them, sir." The essential theory of the complaint is that the reason why the Respondent did not bargain at the beginning of August was to gain time for undermining the Union. But if such were really the hidden motive, what better oppor- ' Dayton Food Fair Stores, 165 NLRB 14. 1 N.L.R.B. v. Glen Raven Silk Mills, Inc., 203 F.2d 946 (C.A. 4). 9 Cf. Signal Manfacturing Co., 150 NLRB 1162. 10 Blue Flash Express, Inc.; 109 NLRB 591. 11 There is some confused and, at times, unintelligible testimony by Davila on this subject of a committee . He speaks English very poorly. Testifying first without an interpreter, he seemed to say Leonard at this mass meeting told the men "when the election is finished, he going to ask a couple of those guys to go to the office to talk ..." Because the General Counsel was not satisfied the witness ' words were being accurately heard, he asked that an interpreter be used. In this fashion , Davila then said: Leonard said that he could not offer anything. Not until after the elec- tion.... Q. Was anything said about a committee? A. Yes, but I am not sure whether it was right there or it was in the factory ... I am not sure who told me about committee , whether it was Pedro [Diaz] or Leonard or Nick. I don't remember, but they told me, they said that he said that if they won, there would be a com- mittee, if they won the election there would be a committee ... I don't know what the committee was for. FONTANA BROS. 375 tunity for implementing the design than the very moment before the balloting with the employees virtually asking to be bought off? An employer seeking to scuttle the Union's campaign would have seized the moment-at least by some hint of favor -to wean the beginning doubt of the employees and encourage it to grow into confident rejection of the Union. Instead the Respondent brothers were careful to avoid even the semblance of bribery. Their failure to rise to the temptation therefore becomes affirmative evidence of good faith, rather than proof of il- legal intent, as the General Counsel would have it. Cases of this kind always leave a residue of doubt. We look and see with our eyes, but never know the color of the soul of man. Another mind could have another thought. I conclude that the record in its entirety does not prove the bad faith of the Respondent in its initial failure to bargain with the Union. I shall therefore recommend dismissal of the complaint in this respect. Nicholas Fontana's statement to two employees that card signing meant plant closure clearly constituted a violation of Section 8(a)(1) of the Act. The comment was never repeated; instead later assurances to the employees that they should feel free to follow their individual inclina- tions in the election must have had the effect of dissipat- ing, at least partially, the intimidating force of his single statement. In any event I do not think the policies of the Act require a formal cease-and-desist order based upon this isolated unfair labor practice. I will therefore recom- mend dismissal of the complaint in its entirety. RECOMMENDED ORDER It is hereby ordered that the complaint against Fontana Brothers, Brooklyn, New York, be, and it hereby is, dismissed.