Chem-Spray Filling Corp.

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chem-Spray Filling Corp. and Local 945, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 22-CA-3477 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE June 17, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On December 16, 1968, Trial Examiner Herman Tocker issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Respondent filed cross-exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 entire record in this case, including the Trial Examiner's Decision, the exceptions and briefs, and hereby adopts the finding, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, Chem-Spray Filling Corp., Cedar Grove, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices other than those found herein by the Board. 'In adopting the Trial Examiner's conclusion that employee Fred Morton was not unlawfully discharged, we also rely upon the absence of any evidence which would serve as a basis for concluding that employee Morton was provoked into shoving his supervisor. HERMAN TocKER, Trial Examiner: This proceeding, with all parties represented, came on to be heard before me, at a hearing in Newark, New Jersey, commencing July 15, 1967, and concluding July 18. A charge was filed on behalf of Local 945, International Brotherhood 'of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereafter the Union or Charging Party) on May 14, 1968, alleging that Chem-Spray Filling Corp., after recognizing it as the majority representative of the employees in the unit involved in this proceeding, thereafter repudiated that recognition and "refused to enter into an agreement with the union as representing his [sic] employees and by his [sic] actions, conduct, communications, and representations to the employees has attempted to diminish the majority which the Union had." An amended charge was filed June 17. It was substantially the same but added a claim that Respondent had discharged an employee, Fred Morton. The complaint was issued June 20 and alleged in' substance (a) that Respondent had violated Section 8(a)(l) of the Labor Management Relations Act of 1947, as amended, by reason of conduct of its Vice President, Sylvio DelVecchio, consisting of interrogation, threats of discharge, and threats of loss of benefits; (b) that it had violated Section 8(aX3) of the Act by dischargttg an employee, Fred Morton, on May 3, 1968, who, however, had been reinstated to his former position on the same day; and (c) that the Union had been selected by a majority of the employees in the unit involved in this proceeding as their representative for purposes of collective bargaining but that the Respondent, in violation of Section 8(aX5) of the Act, has on and since May 3, 1968, refused to recognize and bargain collectively with it. Respondent's answer was filed June 25. It denied the alleged interrogation of and threats to its employees, admitted that Fred Morton had been discharged and reinstated but denied the discharge was in violation of the Act, admitted the unit as described in the complaint but denied the Union had been selected by a majority of the employees in that unit and it was and is such representative, admitted its refusal to recognize and bargain with the Union but denied all allegations on ,the basis of which a finding might be made that it had engaged in any violation of the Act. Although the answer was not amended formally, those portions which denied the allegations of interrogation and threats appear to have been abandoned and the Respondent has admitted, by testimony presented by it during the hearing, that Vice President Sylvio Del Vecchio did, in fact, engage in a number of acts of interrogation and threats. This testimony, while resulting in this admission, established as well that his conduct was an emotional response to the surprise organization campaign waged by the Union, that it was a rather precipitous reaction within 2 1/2 hours after the commencement of work on the day of organization and not only was quickly halted by other officers of the Respondent but never was repeated or resumed. 176 NLRB No. 103 CHEM-SPRAY FILLING CORP. 755 The Issues The allegations with respect to interrogation and threats no longer being in issue, there remain only two issues: One is the allegedly wrongful discharge of Fred Morton, which Respondent contends was not wrongful but because of Morton's "shoving" of Del Vecchio at the time that Del Vecchio had interrogated him about his signing of a union card. The other is whether , in fact, there has been a wrongful refusal to bargain with the Union which would support or require the issuance of an order so requiring Respondent to do. Preliminary In addition to the issues thus set forth, Counsel supporting the complaint seeks to bring up for further consideration his application twice made to have the complaint amended to include an additional charge that Respondent had violated Section 8 (a)(3) of the Act by constructively discharging another employee , Jesus Torres. Torres was a Spanish-speaking employee but initially was interrogated and answered in the English language. He testified that Del Vecchio had approached him and a group of other employees and had said to him , . . [Y]ou signed that card." Following his response that he had, DelVecchio told him that he "should be ashamed of" himself for having signed . Following this and his testimony that DelVecchio had not interrogated the other persons in that group, upon protest by counsel supporting the complaint that the witness did not seem to understand, the services of the interpreter were enlisted. Thereafter, the testimony was elicited with the aid of the interpreter. Torres again insisted that DelVecchio had interrogated only him and , when asked whether anything else had been said to him , he answered that Del Vecchio said , ". . . [I]f I signed he' s going to fire me." Torres testified that nothing else was said by either of them and he went home at 12 noon, the end of his working day, and did not return to work thereafter . He gave as his reason for not returning, "Since he told me he was going to fire me, I didn't come back. I didn' t go back before, before he fires [sic] me." At this point in the testimony, following inquiry by both Respondent's attorney and myself, Counsel supporting the complaint agreed that the testimony had been given only in support of complaint paragraphs 9 and 10 (those having to do with interrogation and threats) saying, "Right. We are not claiming him to be an 8(a)(3)." The cross-examination did not become concerned directly with an issue of discharge - either actual or constructive . It brought out, however, that Torres admittedly was not discharged when he told DelVecchio that he had signed the union card, was not told that if he signed a card he would be discharged, but was told only in general language that DelVecchio "would fire those who signed . . . [and]. . . he [which meant anyone] who signed, I'm going to fire him." DelVecchio then walked away, Torres never spoke to him again, never returned to work after punching out at 12 noon, never picketed for the Union , and never tried to return to work. Only after completion of the cross-examination and the statement of the Counsel for the Respondent that he would object to the inclusion of the Torres card because, by Torres' own testimony, he no longer was an employee prior to the demand for recognition , did Counsel supporting the complaint say, "In light of the position that he's [Respondent's attorney] taking, I would like at this point to make a motion to amend the complaint to allege Mr. Torres as an 8(aX3)." I remarked to Counsel that the witness already had testified that he had not been discharged to which he replied that he was claiming the situation, "As a constructive discharge ." My ruling was, "I see no point in granting that motion . It is not a constructive discharge so I'll deny the application." Counsel supporting the complaint renewed his application for the amendment prior to the conclusion of the hearing and has pursued it and stressed my denial in his posthearing brief. Apart from the fact that the testimony was elicited and received upon Counsel's express statement disclaiming any intention to claim Torres as the victim of 8(aX3 ) conduct, my reading of the relevant cases satisfies me that my conclusion that a case for constructive discharge had not been made and that there was no reason to grant the application so to amend the complaint . Mere threats to discharge persons who sign or haved signed union cards are not sufficient per se to justify any employee hearing such threats to quit his job and subsequently claim a constructive discharge . Action Wholesale, Inc. d/b/a A L. French Co., 145 NLRB 627; J. W. Mays, Inc., 147 NLRB 942; Walker Electric Company, 142 NLRB 1214; Community Motor Bus Company, Inc., 141 NLRB 703. These cases all teach that, to support a finding of constructive discharge, an employer must take some overt action and an employee must be subjected to some such overt action, the combination of which results in compelling the employee to submit to an unlawful condition. In the cases cited, the Board specifically addressed itself to the issue of constructive discharge. In A. L. French Co., it reversed the Trial Examiner and ruled that an employee's "private thoughts and feelings, standing alone, do not provide a sufficient basis to support the . . . finding of unlawful discrimination as to her. [The employer's conduct must be] of a kind calculated to force her to quit." It added that even if the employee , "might have had reason to speculate that she too might soon be discharged, her voluntary decision `to beat the gun' is insufficient to impose liability on Respondent." What the Board said in A. L . French Co. has an interesting relation to this case because it appears that their Respondent had the opportunity to, but did not, resist or protest the employee's quitting . In our case, Chem-Spray did not have that opportunity. In Community Motor Bus Company , Inc., 141 NLRB 703, the Board made clear , that the employee actually must be discharged or must be forced to quit - not merely believe that he might be discharged because of his union activities. In essence, in J. W. Mays, Inc., 147 NLRB 942, the Board stated affirmatively that the mere commission of an act normally intended to thwart union activity is not justification for an employee to abandon his employment and claim the benefits of a constructive discharge. Walker Electric Company, 142 NLRB 1214, is to the same effect. The Board there said, "Thus the illegal conditions of employment to which [the alleged 8(a)(3)'s] were subjected were no different from those in the many cases in which employers have engaged in unfair labor practices to thwart their employees' representation desires. Yet, until this time it has not been suggested that the Board should find the mere existence of unlawful conditions, which do not require employees to take affirmative action in derogation of their rights, to be sufficient justification for considering abandonment of employment as a constructive discharge ." (Emphasis 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supplied.) Also, in Community Motor Bus Company, Inc., 141 NLRB 703, the Board said, "Although it is clear that Respondent urged Bell to quit on February 23, we are not wholly satisfied that the record establishes that Respondent discharged Bell on February 23, or forced him to quit. Accordingly, we shall not predicate a finding that the Respondent violated Section 8(a)(3) upon the alleged discharge of Bell on that date." See also, most recently, Big Y Supermarkets, 173 NLRB No. 67. I have considered carefully what might be suggested but what I do not regard as a somewhat contrary ruling by the Trial Examiner in Cramco, Inc., 162 NLRB 1442. He alluded to the fact that the employer knew from the employee's statement, ". . . that if he were going to be laid off or fired that he would just quit now and his actions therewith were caused by the Respondent's fixed intention to so discriminate against [the employee]. The Respondent's failure at that time to cease its fixed intention to discriminate . and its failure to tell him that he would not be laid off constituted in effect a constructive discharge . . . at the time that Respondent allegedly accepted" the quit. The Board adopted the decision without comment. Inasmuch as it did not discuss the issue, it would appear that it accepted the Examiner's finding that there had been a "failure to tell [the employee] that he would not be laid off" as coming within what it had said in A. L. French with respect to the failure of the employer "to resist or protest" the quitting by the employee. Another case also somewhat suggests a contrary view found only in the decision of the Trial Examiner. General Adjustment Bureau, Inc., 142 NLRB 723. There an employee in a quasi-professional position was told that a report was being submitted which would require that he be terminated. The Examiner was of the view that he was justified in quitting and that this provided the basis for a finding of constructive discharge because the filing of such an adverse report would have constituted a stain on his employment record, impairing his future advancement in his chosen profession. This does not indicate a trend contrary to the Board's express statements in A. L. French, Co., J. W. Mays, Inc., Walker Electric Company, and Community Motor Bus Company, Inc., above. The explicit statement that the adverse report would be filed and would result in termination constituted an overt act. I adhere to my initial conclusion that no case for a constructive discharge had been made. There is and was no reason to allow the complaint to be amended so to allege. In the resolution of all issues with respect to which credibility or oral testimony became a factor, I have weighed all the probabilities considered the demeanor and conduct of the witnesses, their candor or lack of it, their objectivity, bias, or prejudice, their understanding of the matters concerning which they testified, whether their testimony has been contradicted or sufficiently impeached, whether parts of testimony should be accepted when other parts are rejected, consistency, plausibility and probability, and the effect which leading questions might have had on the answers elicited thereby. After carefully reading the briefs submitted by Counsel supporting the-complaint and by Counsel for Chem-Spray, after my observations of the witnesses, and my taking into consideration the additional factors mentioned in the paragraph immediately proceeding, now, upon the whole record, the following are my FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND JURISDICTION Chem-Spray Filling Corp. is, and at all times material herein has been, a corporation duly organized and existing under and by virtue of the laws of the State of New Jersey, with principal office and plant in Cedar Grove, New Jersey. It is engaged in the manufacture, sale, and distribution of aerosol and related products. As admitted by it, it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Labor Management Relations Act of 1947, as amended. The National Labor Relations Board has jurisdiction of this proceeding and of the Respondent. II. THE LABOR ORGANIZATION INVOLVED Local 945, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. It is the Charging Party. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Interrogation and Threats Violative of Section 8(aXl) of the Act Vice President Sylvio Del Vecchio substantially admitted in his testimony at the hearing that he had engaged in a sequence of interrogations of employees along the production line as to whether they had signed union cards, that he threatened that either the signing of the cards or the organization of the employees in the unit would result in the discontinuance of the practice of providing employees with benefits such as Christmas bonuses and Thanksgiving turkeys, that he had told at least one employee that he would never let him forget about the fact that he had signed a union card, and that he had told another that if it was up to him, he would be the first to go. I interpret the last two as being threats that such employees would be discharged or harassed for having signed union cards. The pattern of interrogation, the threat that benefits such as Thanksgiving turkeys and Christmas bonuses would be discontinued because of, or in the event of, union organization, and the threat of possible, if not probable, future discharge and harassment for having signed the union cards, all tend to, and do, interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them in Section 7 of the Act. B. The Alleged Wrongful Discharge of Fred Nathaniel Morton I am unable, after my observation of and consideration of the testimony of the witness Morton, to come to any reasonably certain conclusion that he, in fact, was discharged either because he had signed the union card or for the purpose of discouraging membership in the Union. After having been interrogated by DelVecchio as to whether and why he had signed a union card, according to Morton, the following transpired: I said so what. So he said he was going to get me, you know, because he was furious at the time, by signing the cards. I told him what, so he so said "You're fired right now." So he went to pass me, I pushed back, gave him a shove. And he fired me on the spot. So CHEM-SPRAY FILLING CORP. 757 from there we went to the local board . (By "local board" he meant the union headquarters.) This appears to be intended to be a complete statement of what transpired . Taken alone and with nothing more, it is inherently contradictory because Morton first testified that he had been fired immediately after responding, "So what," to DelVecchio's threat "to get" him and then he testified that after all this happened he "gave [DelVecchio] a shove and he fired me on the spot ." If, in fact, Morton had been fired after the "so what" remark, then DelVecchio could not have fired him and there would have been no necessity for firing him after the pushing incident. It developed on cross-examination, however, that Morton had not given on direct what actually was a complete recital of all that had transpired. According to his first version , all that had transpired was the interrogation , the alleged threat, the "so what" retort, the first alleged discharge, the shoving of DelVecchio, and then another, but obviously superflous discharge if he already had been discharged, immediately followed by a trip to the union offices. When pressed on cross-examination, he filled in his testimony by saying that between the time he had been fired (the first firing) and the time that DelVecchio had threatened "to get" him he had admonished DelVecchio , "you better do it in a nice way." He admitted that he had given DelVecchio "a pretty good push . . . [who] didn't fall down or nothing, just backed up a couple of steps ... about three maybe." During this version Morton also was asked what DelVecchio had said after he pushed him, and he answered only that DelVecchio , "Went into the office." He denied that DelVecchio had asked him to go into the office and answered , "No. We all went into the office together . [No words "really" were spoken but] [h]e was saying that I had hit him but I hadn't so that's why I followed him into the office." When asked whether DelVecchio had told him in the office that he was fired, Morton answered , "Well, he didn't repeat that again, no." It was after this trip to the office, not immediately after the shoving as initially testified, that Morton went to the union headquarters. DelVecchio testified also concerning this incident. During his entire testimony he appeared to me to be a most chastened individual , fully aware of and convinced that he had engaged in certain unlawful conduct which he insisted, under repeated cross-examination , had been because of his personal outrage at what he felt had been ungrateful attitudes following his kindnesses to particular individuals. I have no reason to discredit his testimony. He admitted that he had asked Morton whether he had signed a card and said . that Morton had replied in a sarcastic manner that he had . This caused him to tell Morton that he ought to be ashamed of himself , "and if it's anything possible at all, I will never forget it. I will always remember it. I said, 'I took you from a dollar and a quarter an hour, taught you this and raised you from $1.25 to $3.25 to $3.50 in two years and a half.' And that's when he shoved me and he pushed me back about five to ten feet, if not more ... I got my balance, started to walk toward him and then I looked him in the eye and said 'Just for that you're fired.' " He expressly denied that he had told Morton he was fired before he had been pushed . He then told of the trip to the office and of additional events, not material here, which happened thereafter. The very afternoon that all this had happened, Respondent offered to reinstate Morton to his original position . According to testimony on its behalf, prior to the visit by the union representative complaining of the discharge, Respondent sent the following telegram to Morton: BECAUSE OF YOUR PAST SERVICE WITH CHEMSPRAY WE ARE WILLING TO OVERLOOK THE FACT THAT YOU PUSHED MR DELVECCHIO THIS MORNING WITHOUT PROVOCATION . IF YOU ARE INTERESTED IN RETAINING YOUR JOB PLEASE REPORT TO WORK MONDAY MAY 6 1968 AT YOUR REGULAR TIME While, if the union representative's testimony were credited, an inference might be made that the telegram had not yet been sent, there is no dispute that he was told that Morton would be reinstated and that he was offered the opportunity to read the telegram . Although it could be argued that the statement in the telegram to the effect that Morton had pushed DelVecchio without provocation is self-serving, it does not follow that it must be concluded that the declaration, having been prepared and sent so quickly after the incident, is untrue. It is so close to the happening of the events as to be regarded almost as part of the res gestae. DelVecchio walks with a limp and might have been seriously and physically upset upon being pushed by Morton. I am not satisfied and am unable to conclude that Counsel supporting the complaint has sustained his burden of proof that DelVecchio discharged Morton because he had signed the union card . It seems equally, if not more probable, that Morton , in his own belligerent manner, had given DelVecchio a "shove" which was reason enough for DelVecchio, as the angered response of an employer to the shove and not as a response to the fact that Morton had signed the union card , to discharge him. Despite the fact that numerous witnesses had been called on behalf of the General Counsel and had testified of firing threats, all admitted that following whatever interrogation had been made or whatever threat had been made, DelVecchio promptly walked away and did nothing further. Not one of those witnesses and no other employee had been discharged. Respondent did not discharge Morton unlawfully. C. The Refusal To Bargain The description of the unit, as alleged in paragraph 14 of the complaint, is admitted. Although both charges filed by the Union assert that Chem-Spray actually had recognized it as representing its employees but subsequently "refused" that recognition and "refused to enter into an agreement with the Union," the complaint does not allege an initial recognition but does allege that at all times since on or about May 3, Respondent refused and continued to refuse to recognize and bargain collectively with the Union. The Respondent has injected into this proceeding two large issues going to the question of majority representation . One is whether a number of authorization cards should not be counted because they were tainted by reason of participation or urging of two supervisors, Leroy Brown, a claimed warehouse and shipping manager (whose capacity is disputed by Counsel supporting the complaint), and Lydia McMonigle (whose supervisory capacity is not in dispute). The other issue is whether a number of employees who work from time to time on a night shift and do exactly the same sort of work that the day-shift employees do should be included in the unit. If it 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were necessary to decide these issues, I would hold that Brown is a supervisor but did not participate sufficiently to invalidate cards procured in his proximity and, since I wholly discredit McMonigle, I would find that a number of employees signed their cards upon her urging and solicitation, as testified . As far as the night shift is concerned, without a rather extended study, much more than has been provided in either of the briefs submitted, I would be hesitant at this time to rule either that the employees in that shift should be counted or should be excluded . I deem it unnecessary to do this and am of the additional belief that it is unnecessary to discuss at length the card count because of my conclusion that , regardless of whether or not the Union had been authorized by a majority of the employees in the unit (day shift only or both day and night shifts), there was no wrongful refusal to bargain and no violation of Section 8(aX5) of the Act. I do not credit the testimony of the three union representatives, Rivera, Ramos, and Pascarella, that during their meetings with Respondent' s President Feldman , he made admissions that he knew that the Union represented a majority of the employees in the unit, that he realized that it represented a majority, that he had no doubt that it represented a majority, that an offer had been made that the authorization cards be checked by a third party, that there had been remarks about methods whereby it could be ascertained or determined whether the Union represented a majority, that Feldman had refused to discuss the matter of majority - or any other similar remarks, admissions, or conversations . All this is denied by Feldman who testified , in addition, that during conversations with the union representatives, he had told them that if the employees wanted a union , he would have no objection. That he did tell them this is admitted. My conclusions that this testimony by Messrs . Rivera, Ramos, and Pascarella should not be credited rest in part (but only in part) on the fact that Rivera (who was a very experienced union organizer, having been an I.U.E. International representative for more than 7 years prior to becoming an officer of the Charging Party) and Ramos gave no such testimony in prehearing affidavits obtained by Counsel supporting the complaint and Pascarella, who had heard their testimony but had given no statement, merely backed up their testimony. I regard these omissions from the prehearing affidavits , apart from my observation of these witnesses during their testimony, as important and relevant in connection with the testing of their credibility. After a rule of law has been established there is a tendency sometimes to remember only the rule and to forget its reason and purpose . And so, all to frequently, attorneys regard the Jencks rule as just one requiring the production of pretrial statements . They tend to overlook the underlying reason why it has become a frequent tool in the trial of cases following the decision of the United States Supreme Court in Jencks v. United States, 353 U.S. 657 at 667. It is well, therefore, to return to the opinion of the court and its explanation for its ruling. Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory . Flat contradiction between the witness' testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment , are also relevant to the cross-examining process of testing the credibility of a witness' trial testimony. It is wholly beyond my comprehension that remarks and statements such as testified by Rivera and Ramos could have been made during the meeting, and not have been brought to the attention of the attorney taking their pretrial statements and that he would have failed to elicit such evidence, if such remarks and statements had been made, at the time that he took those statements. As will become more apparent below, it well may be that the alleged conversations about majority representation, admissions that the Union represented a majority, offers of card checks, and like events, are of no consequence, whether or not they were injected into the meetings. This case need not be decided on an alleged refusal to recognize that the Union represented a majority of the employees in the unit. The issue is: Did Respondent "refuse to bargain collectively with the representatives of (its) employees, subject to the provisions of Section 9(a)" of the Act? Neither the Union nor any of its representatives had had any contact or communication with Respondent's employees prior to the morning of Friday, May 3, 1968. Approximately at or shortly after 7:30 o'clock on that morning of May 3, they came to the outside of Respondent's premises and blitzed some 23 employees into signing union authorization cards within the lapse of about 15 or 20 minutes. There does not appear to have been any reasoned discussion or presentation of views and, as far as the testimony of any of the employees may disclose, they either were handed cards which they promptly signed or they were urged by Forelady McMonigle to sign them in haste . Having so successfully in this blitz campaign obtained what may or may not have been a majority of signed cards, the Union attempted to blitz a contract out of the Respondent in the same manner . This entire case is pitched to the argument and contention that Respondent's alleged refusal to bargain consists of its refusal to sign that to which the union representatives and counsel so casually refer to as the "recognition papers ." This is as bad a misnomer as any misnomer ever could be, as soon will appear. Before discussing these so-called recognition papers, I note expressly and find that, far from refusing to bargain with the Union, Respondent, by its president, Feldman, gave Union Representative Ramos a very cordial reception on his first visit to and conference in its offices. The purpose of that visit was to complain of the Morton discharge. Whatever the words testified by any of the participants with respect to the conversations at that meeting might be, there is no dispute and it cannot be contravened that Ramos was told that Morton would be reinstated and that telegrams were being or would be sent to all employees to return to work. (There had been a spontaneous, small walkout following Morton's discharge.) To the extent that union representation might have been discussed, far from there having been a refusal to bargain, this can be regarded as nothing else but an actual bargaining meeting. It is true that Feldman's conciliatory attitude during the meeting was marred by DelVecchio's continued agitation resulting from the Union's blitz campaign. This agitation was evidenced by his nervous handling of a letter opener and his "spitting" during the meeting. The only conclusion about "these incidents to which I can come, giving the most liberal interpretation to Ramos' and Brown's testimony, is that contrary to what they sought initially to convey to me, DelVecchio did not lunge at either of them with a knife and he did not spit at Brown but only spat in front of CHEM-SPRAY FILLING CORP. 759 him. This emotional display does not negate the fact that the meeting was a bargaining meeting . We all know that worse things than these happen at bargaining meetings and that neither employers nor union representatives have a monopoly on such conduct. During this meeting , and indicative also of its cordial atmosphere , it was agreed by Ramos on behalf of the Union and by Feldman on behalf of the Company that the matter of further relations with the Union would be deferred until Feldman had an opportunity to confer with his attorney by the following Tuesday, May 7. On the following Monday, Rivera, Ramos, Pascarella, and a fourth union representative , Rodrig, proceeded with their attempt to blitz Respondent into a collective-bargaining agreement by demanding, under threat of strike, that Feldman sign the so-called recognition papers. On the first attempt, Monday morning , they were reminded that the agreement had been made to wait until Feldman had an opportunity to confer with his attorney . That this was the agreement is not in dispute . The union representatives returned to their local office and there were instructed by a supervisor, a Mr. Ardis, that the agreement was not to be honored and that Respondent had to sign forthwith the "recognition papers." From here on, there is nothing in the case but blustering and belligerent, continued insistence for immediate capitulation to the Union's demands in complete disregard of and breach of the agreement to wait for Feldman to talk to his attorney on Tuesday. He was told he had to sign forthwith "the recognition papers" and, if he did not, the Union would call a strike. (See attached Appendix A setting forth quotations from the transcript [omitted from publication ].) It appears that it actually sought to call a strike that Monday but was unable to do so because of the desire of the employees that Feldman's consultation with his lawyer be permitted. In any event, confronted with the continued insistence by Feldman that he would not sign the paper called "recognition papers" without prior consultation with his attorney, the Union did succeed in striking Respondent's plant on Wednesday , May 8, following Feldman's failure to sign by the close of business, Tuesday, May 7. I shall hold the matter of these recognition papers in abeyance a little while longer while I review what the courts and the Board have said with respect to demands by unions that employers engage in collective bargaining and what the responsibilities of employers may be when confronted with communications which may or may not be demands. The leading case, of course, is N.L.R.B. v. Columbian Enameling & Stamping Co., Inc., 306 U.S. 292, where the Court said variously on pages 297, 298, and 299: Since there must be at least two parties to a bargain and to any negotiations for a bargain , it follows that there can be no breach of the statutory duty by the employer - when he has not refused to receive communications from his employees - without some indication given to him by them or their representatives of their desire or willingness to bargain . In the normal course of transactions between them , willingness of the employees is evidenced by their request, invitation, or 'expressed desire to bargain, communicated to their employer. However desirable may be the exhibition by the employer of a tolerant and conciliatory spirit in the settlement of labor disputes, we think it plain that the statute does not compel him to seek out his employees or request their participation in negotiations for purposes of collective bargaining, and that he may ignore or reject proposals for such bargaining which come from third persons not purporting to act with authority of his employees, without violation of law and without suffering the drastic consequences which violation may entail. To put the employer in default here the employees must at least have signified to Respondent their desire to negotiate. Measured by this test the Board's conclusion that Respondent refused to bargain with the Union is without support, for the reason that there is no evidence that the Union gave to the employer, through the conciliators or otherwise, any indication of its willingness to bargain, or that Respondent knew that they represented the Union. The employer cannot, under the statute, be charged with refusal of that which is not proffered. Furthermore, it contains no hint that the Union at any time after July 5th and before September communicated to Respondent its willingness to bargain, or that the conciliators , in asking a meeting and discussing the matter with Respondent's president, purported to speak for the Union. * * * * Judged by these tests or any of them we cannot say that there was substantial evidence that Respondent at any time between July 5, 1935, and September, 1935, was aware that the Union desired or sought to bargain collectively with Respondent, or that there is support in the evidence for the Board's conclusion that on or about July 23,1935, Respondent refused to bargain collectively with the Union. Affirmed. [Emphasis supplied throughout.] In N.L.R.B. v. Valley Broadcasting Company, 189 F.2d 582, 586 (C.A. 6), the court said: After a careful examination of the record we are unable to say that there was substantial evidence that the Union through Hirsch ever presented Respondent with a clear demand to bargain. Finally, our conclusion is that in so far as petitioner seeks to establish a violation of Sec. 8(aX5), its petition is dismissed, but in all other respects a judgement will be entered enforcing its order. In The Solomon Company, 84 NLRB 226, the Board said: The Trial Examiner found that the Respondents had violated Section 8(a)(5) of the amended Act by tailing to bargain with the Union after receipt, on September 15, 1947, of the Union's letter of September 13,-1947. We do not agree. The letter, which is set forth in .. . the Intermediate Report , notified the Respondents that the Union was filing a petition with the Board requesting- an election "to ascertain whether the employees want us to represent them as their bargaining representatives." The letter went on to request the Respondents to participate in a cross-check of cards to determine the Union's majority. The Respondents contend that they read the letter as proposing a determination of the Union's bargaining 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status, alternatively by a Board election or by a cross-check of cards, and that they decided to await the outcome of the Board proceeding as the petition had already been filed . We find the Respondents' interpretation of the letter, under all the circumstances to be entirely reasonable . . . As the Union did not make a clear and unequivocal demand for recognition, and did not represent a majority of the employees in the appropriate unit either when the alleged demand was made or when it was received , the Respondents have not refused to bargain within the meaning of Section 8(a)(5) of the Act. In Wafford Cabinet Company , 95 NLRB 1407, 1408, the Board said: It is now well established that, absent special circumstances not present here, a prerequisite to a finding of a refusal to bargain by an employer is a clear and unequivocal demand for bargaining by the union. We find no such demand in the instant case. We should recall also the Board's established view as to the nature of the misconduct which always must be established before making a finding of an unlawful refusal to bargain most recently summarized in Derse, Arthur F., Sr. (Wilder Mfg. Co., Inc.), 173 NLRB No. 30: This is usually based on evidence indicating that the Employer has completely rejected the collective-bargaining principle or seeks to gain time within which to unlawfully undermine the Union and dissipate its majority. All other things aside, whatever 8(axl) conduct was committed in this case was committed only in the brief interlude of an hour or two following the blitz card signature campaign and never was repeated once Respondent's President, Feldman, came into the picture on the afternoon of the very first day of organization. Now we come to the "recognition papers." "They" consist of the following, on one single sheet: [Union's letterhead as shown on original letter omitted here] 1. The Employer recognizes the Union as the sole and exclusive bargaining agent for all the Employer's employees, exclusive of nonworking foremen, supervisors, office help , salesmen and executives. 2. The Employer and the Union will immediately enter into negotiations for a labor-management contract. The contract shall be the Union's usual contract for, and shall, provide, among other things for the union shop, checkoff of dues and initiation fees, classifications, holidays, vacations, general increases, welfare payments, etc. 3. All terms finally agreed upon shall be retroactive to Date Chem-Spray Filling Corp. 16 Commerce Road Cedar Grove, N.J. BY: Local 945 Inside and outside workers Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. BY: President President I have said above that the term "recognition papers" for this sheet of paper "is as bad a misnomer as any misnomer could be...." Had Feldman signed it he would have obligated Respondent to a contract with the Union which would have 'ncluded numerous extremely important and controversial clauses which frequently are debated for many hours in many bargaining sessions , and even, although not so frequently, often are not included in whatever contract ultimately may come out of good-faith negotiating and bargaining . Thus, had Feldman signed it, save for the possibility that there might have been room for some discussion as to word structure , the contract would have had to contain clauses providing for (1) union shop, (2) checkoff of dues and initiation fees, (3) job classifications when, for all we know, Respondent's operation did not require them , (4) the same holidays or the same number of holidays which might be found in whatever may be "the Union's usual contract," (5) the same vacations in that "usual" contract , (6) the same formula for general increases in that "usual" contract, and (7) the same welfare payments, whatever they may be - to say nothing of the meaning of, "etc." Faced with the demand that he sign this paper, or else, can Feldman's refusal to sign it be regarded as unreasonable and a refusal to bargain with the Union? Also, was it unreasonable for him to want to consult an attorney as to its meaning and the advisability of signing it? Also, was he under any obligation to do anything other than what he did when confronted with the demand that he sign forthwith? It is hardly necessary to say that the answer to all these rhetorical questions is, "No." Conversely, although the Union is not the Respondent here, it could be held, if it were, that it was culpably wrong first, in breaching its agreement to give Feldman the opportunity until May 7 to consult with his lawyer before signing the paper, and second, that if there was any refusal to bargain here, the refusal to bargain was its adamant position that Feldman sign what, in effect, was a contract without any opportunity for discussion, a position backed up not only by the threat of a strike but an actual walkout on Wednesday, May 8. There was here no rejection of the collective-bargaining principle . Respondent was entirely justified in refusing to sign this contract without having an opportunity first for consultation with its attorney and second for negotiation and bargaining concerning the clauses demanded. IV. THE REMEDY I have found that Respondent, by DelVecchio's conduct, did engage in coercive interrogation, and in threats to discontinue benefits and threats to discharge in the event of card signing or union organization . Except for the fact that he should not be characterized as a "minor supervisor" by reason of his position of vice president, what happened here is not too far different from what happened in Clermont's, Inc., 154 NLRB 1397. Certainly whatever he did promptly was nipped in the bud and countermanded once Feldman , Respondent's President, came on the scene . The telegrams sent by Respondent on the organization day overruled and repudiated whatever CHEM-SPRAY FILLING CORP. DelVecchio might have done. Feldman's address to the employees on the very first business day after the organization day made it clear to them that there would be no interference with their rights and that, if they wanted a union or the Union, their wishes would be respected and he would recognize it. It is not disputed that he made a similar statement to the union representatives. Feldman and his other controlling associate , Desai, even though they appeared to have had some difficulty with DelVecchio, effectively overruled him and, as I have said before, he now appears to be very much chastened. What the Board said at page 1401 in the Clermont's case may suggest that perhaps a remedial order should not be entered in this case. If DelVecchio did not appear to be an equal partner with Feldman and Desai and was, in fact, only a minor supervisor, I would be inclined so to conclude. On the other hand, DelVecchio is a vice president . Moreover, Feldman and Desai should have some leverage to control his future actions . They appear to have had problems with him, problems which in fact caused them even to refrain from talking to each other during that weekend commencing May 3 . All things considered, I have concluded that it will serve the public interest and effectuate the purposes (of the Act and also incidently tend to maintain a more harmonious relationship among these three individuals) if a limited remedial order is entered. This order should be signed by DelVecchio on Respondent' s behalf. Now, in view of all the foregoing, the following are my CONCLUSIONS OF LAW 1. Respondent, Chem-Spray Filling Corp., is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local 945, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the Section 2(5) of the Act. 3. By systematically and progressively interrogating its employees whether they had signed union cards and by threatening employees with discharge and harassment or with the withdrawal of or discontinuance of benefits such as Christmas bonuses and Thanksgiving turkeys in the event that they sign or have signed union cards, Respondent did interfere with, restrain, and coerce them in violation of Section 8(a)(1) of the Act. 4. The aforesaid conduct constitutes unfair labor practices and such unfair labor practices are unlawful within the meaning of Section 2(6) and (7) of the Labor Management Relations Act of 1947, as amended. 5. The activities and operations of the Respondent as set forth above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 6. Except for the unlawful labor practices expressly found herein, Respondent has engaged in none of the unfair labor practices alleged in the complaint and such allegations not so found herein should be dismissed. Now, therefore, on the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in' this case , I hereby recommend issuance of the following ORDER Respondent , Chem-Spray Filling Corp., Cedar Grove; New Jersey, its officers, agents, successors, and assigns, SHALL: 761 1. Cease and desist from (a) Interrogating any employee as to whether he, she, or any other employee has signed any union card or card authorizing any labor organization to represent him or her for purposes of collective bargaining or signifying his or her membership in or intention to join any such labor organization, when such interrogation constitutes interference, restraint, or coercion, in violation of Section 8(a)(1) of the Act. (b) Threatening any employee with discharge or harassment because of having signed any such union card or because of his or her membership in or support of any labor organization. (c) Threatening that if any employee or its employees sign any application for union membership, or card for union authorization , or if a union is selected to represent its employees, that it will discontinue any benefits then being enjoyed by them. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by a valid agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(1) and (3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its place of business in Cedar Grove, New Jersey, copies of the attached notice marked "Appendix B."' Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's Vice President, Sylvio DelVecchio, shall be posted immediately upon receipt thereof and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to assure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 22, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.' Those allegations of violation set forth in the complaint which have not been found expressly as heretofore set forth should be, and hereby are, dismissed. ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 22, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith" 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 employees that: WE WILL NOT ask any employee whether he or any other employee has signed any card signifying his intention to join, or his membership in, any labor organization, or whether any other employee has signed any such card, when, by asking any such questions we shall be engaging in interference, restraint, or coercion, in violation of Section 8(axl) of the said Act. WE WILL NOT threaten that any employee will be discharged or harassed or that our employees will lose any benefits or privileges because they engage in union activities or sign any cards requesting membership or providing for membership in any union, or if any union should be selected by them as their collective-bargaining representative. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by a valid agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(axl) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any union or labor organization. CHEM-SPRAY FILLING CORP. (Employer) Dated By (Sylvio DelVecchio) (Vice President) This notice must remain posted for 60 consecutive 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, 16th Floor, Federal Building, 970 Broad Street, Newark, New Jersey 07102, Telephone 201-645-3240.