Teledyne Dental Products Corp.

TELEDYNE DENTAL PRODUCES CORP. Teledyne Dental Products Corp . and Electrical, Pro- duction, and ' Industrial Workers Union, Local 118, International Union of Dolls, Toys, Playth&gs, Novelties and Allied Products of United States and Canada, AFL-CIO. Case 29-CA-3379 April 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 26, 1973, Administrative Law Judge Irving M. Herman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, the General Counsel filed cross-exceptions with supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the Administrative Law Judge's rulings, findings,' and conclusions to the extent consistent herewith,2 and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge in his conclusion that Respondent violated Section 8(a)(1) through its plant manager's solicitation of grievances with promises of rectification. After initially refusing to meet and bargain with the Union, the plant manager, Opotow, had two meetings with the employees which can only be viewed as unsuccessful attempts to discern the causes for the employees' prounion sentiment. After the second attempt proved fruitless, Opotow had his secretary try to find out why the employees wanted a union. She succeeded in having the employees list their demands for presenta- tion to Opotow. She carved this list into Opotow's office and later returned to inform the employees that the demands had been "okayed," and for them to sign the list. The Administrative Law Judge found and we agree that Opotow's secretary was acting as an agent of the Respondent in performing these activities. The following day the shop supervisor also informed the employees that they had "got what [they] want" and implemented one of their demands. Shortly thereafter the employees told the union The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 363 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 210 NLRB No. 64 435 representative who had been in charge of their organization that they were no longer interested in the Union because they had signed an agreement with the employer and had "got what [they] wanted." The Administrative Law Judge found this to be a clear example of solicitation of grievances with promise of satisfaction in violation of the Act and we agree. In passing upon the complaint' s 8(a)(5) refusal-to- recognize and bargain allegation, the Administrative Law Judge concluded that a bargaining order would not be appropriate because, in his view, the Respon- dent's unlawful conduct had only a minimal impact on the election machinery and did not make "the holding of a fair election impossible or unlikely." He further felt that Respondent's conduct would "re- bound to the advantage of the Union" and that the nonfulfillment of promises was not "calculated to win friends and influence voters." We disagree.3 While it is true that the employees would wonder, and in fact, have questioned Respondent's failure to implement, to date, the balance of its agreement, it is not unlikely that, in the circumstances presented here, the employees could view the Union as being responsible for Respondent's failure to deliver as promised. Indeed, there is some testimony indicating that the onus for this may already have been placed on the Union. Thus, employee Clarence White testified that he spoke to Ruth Rothman, an agent of the Respondent, concerning the fact that the employ- ees had not received the promised wage increase. According to White, Rothman indicated that the Union had something to do with the delay and then added, but "its not over yet." Certainly, the Respon- dent has already indicated its willingness to comply with the employees' demands by the implementation of the coffeebreak policy and, at the same time, has given the employees reason to believe that it is equally anxious to satisfy their other demands. In essence, we are presented with a situation wherein the Respondent has deliberately embarked upon a course of action designed to convince the employees that their demands will be met through direct dealing with Respondent and that union representation could in no way be advantageous to them. Obviously such conduct must, of necessity, have a strong coercive effect on the employees' freedom of choice, serving as it does to eliminate, by unlawful means and tactics, the very reason for a union' s existence. We can conceive of no more pernicious conduct than 2 Respondent's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and positions of the parties 3 Chairman Miller does not join his colleagues in their decision to issue a bargaining order. He would adopt in their entirety the findings , conclusions, and recommended order of the Administrative Law Judge 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that which is calculated to undermine the Union and dissipate its majority while refusing to bargain.4 Neither is there any conduct which could constitute a greater impairment of employees' basic Section 7 rights under our Act, especially since such conduct by its very nature has a long-lasting, if not perma- nent, effect on the employees' freedom of choice in selecting or rejecting a bargaining representative. Accordingly, we find, contrary to the Administrative Law Judge, that the issuance of a bargaining order would be both a necessary and proper remedy for the unlawful conduct found herein. Finally, the Respondent argues that the authoriza- tion cards are not valid in that the union representa- tive secured the employees ' signatures on the basis that they would only be used to secure an election and for no other purpose. The Administrative Law Judge did not make a determination on the validity of the cards because it was unnecessary for the purposes of his decision. However, in a footnote he did allude to some evidence which suggested that there had been material misrepresentations as to the purpose of the cards while they were being solicited. We have reviewed the evidence and find no justifica- tion for such a conclusion. In Levi Strauss & Co.,S we stated at footnote 7: The Board looks to substance rather than to form. It is not the use or nonuse of certain key or "magic" words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election. We are satisfied that no such assurances were made to the employees. While the testimony of the union organizer who spoke with the employees at the time that they signed the cards is somewhat confused, there is no indication of conduct which could be said to have misled employees as to the purpose of the cards. Further, it is evident from the testimony of the employees that an election was not stressed as the sole purpose for signing the cards. We therefore conclude that the cards. signed by the employees are valid and constitute a clear expression of their desire to have the Union serve as their representative, and that, at the time the Union demanded recognition and bargaining, it was the designated representative of a majority of the unit employees. In view of the foregoing and on the record as a whole, we find that by refusing to recognize and bargain with the Union the Respondent violated Section 8(a)(5) and (1) of the Act, and that the policies of the Act will be effectuated by the imposition of a bargaining order as a remedy for such conduct. THE REMEDY We have found in agreement with the Administra- tive Law Judge that the Respondent engaged in conduct violative of Section 8(a)(1) of the Act and, accordingly, we adopt his remedial recommendations in that regard. However, we have found, contrary to the Administrative Law Judge, that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. We therefore order that the Respondent cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees including shipping and receiving employees of Teledyne Dental Products Corp., employed at its plant, exclusive of office clerical employees, profes- sional employees, guards and all supervisors as defined in the National Labor Relations Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Respondent has violated Section 8(a)(1) of the Act by soliciting the employees' grievances underly- ing their union activity, promising to redress such grievances, and granting a coffeebreak. 5. By refusing to meet and bargain collectively with Electrical, Production and Industrial Workers Union, Local 118, International Union of Dolls, Toys, Playthings, Novelties and Allied Products of United States and Canada, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the appropriate unit described above. with respect to rates of pay, wages, hours of employment and other terms and conditions of employment, Respondent has engaged and is engag- ing in unfair labor practices within the meaning of Section 8(a)(5) of the Act, and has thus interfered with, restrained, and coerced employees in the 4 Texaco, Inc., 178 NLRB 434 (1969). 5 172 NLRB 732 (1968). TELEDYNE DENTAL PRODUCTS CORP. exercise of their rights guaranteed by Section 7 of the Act, and has thus engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the recommended Order of the Administrative Law Judge, as herein modified, and orders that Respon- dent, Teledyne Dental Products Corp., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as so modified: 1. Insert the following as paragraph 1(a) of the Administrative Law Judge's recommended Order, relettering the remaining paragraphs accordingly: "(a) Refusing to bargain collectively with Electri- cal, Production and Industrial Workers Union, Local 118, International Union of Dolls, Toys, Playthings, Novelties and Allied Products of United States and Canada, AFL-CIO, as the exclusive collective-bar- gaining representative of its employees in an appro- priate unit composed of `all production and mainte- nance employees including shipping and receiving employees of Respondent, employed at its plant, exclusive of office clerical employees, professional employees, guards, and all supervisors as defined in Section 2(11) of the Act.' " 2. Insert the following as paragraph 2(a) of the Administrative Law Judge's recommended Order, relettering the remaining paragraphs accordingly: "(a) Upon request, recognize and bargain collec- tively with Electrical, Production and Industrial Workers Union, Local 118, International Union of Dolls, Toys, Playthings, Novelties and Allied Prod- ucts of United States and Canada, AFL-CIO, as the exclusive bargaining representative of its employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed contract." 3. Delete the last paragraph of the Administrative Law Judge's recommended Order which begins "It is further ordered ...." 4. Substitute the attached notice for that of the Administrative Law Judge's. APPENDIX 437 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT solicit grievances from our employees to discourage their interest in Electri- cal, Production and Industrial Workers Union, Local 118, International Union of Dolls, Toys, Playthings, Novelties and Allied Products of United States and Canada, AFL-CIO, or any other labor organization. WE WILL NOT promise wage increases, paid holidays, work breaks, or any other benefit to our employees to undermine their support for the above-named Union, or any other labor organiza- tion. WE WILL NOT grant work breaks or any other benefit to our employees to undermine their support for the above-named Union, or any other labor organization. WE WILL NOT in any related manner interfere with, restrain, or coerce our employees in the exercise of their rights to engage in organizational activity or collective bargaining, or to refrain from such activities. WE WILL, upon request, recognize and bargain with Electrical, Production and Industrial Work- ers Union, Local 118, International Union of Dolls, Toys, Playthings, Novelties and Allied Products of United States and Canada,AFL-CIO, as the exclusive collective-bargaining repre- sentative of our employees in the appropriate unit composed of all production and maintenance employees including shipping and receiving em- ployees of Teledyne Dental Products Corp., employed at its Brooklyn, New York, operation, exclusive of office clerical employees , professional employees, guards, and all supervisors as defined in the aforesaid Act, regarding their rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understand- ing is reached, embody the same in a signed contract. TELEDYNE DENTAL PRODUCTS CORP. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212-596-3535. DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This case was tried before me on August 13, 1973,1 at Brooklyn, New York. The charge was filed May 3 by Electrical, Production and Industrial Workers Union, Local 118, International Union of Dolls, Toys, Playthings, Novelties and Allied Products of United States and Canada, AFL-CIO (herein called the Union), and was served on Respondent the same day. The complaint, issued June 20, alleges in substance that Respondent violated Section 8(a)(l) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called the Act, by interrogation, promises and grants of benefit; and violated Section 8(a)(5) by refusing to recognize and bargain with the Union and dealing directly with its employees. Upon the entire record,2 including my observation of the witnesses, and after due consideration of the briefs filed on behalf of General Counsel and Respondent, I make the following: FINDINGS AND CONCLUSIONS I. RESPONDENT'S BUSINESS III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Organization of the employees; request to bargain and refusal On April 5, Clarence White, a machine operator who has worked for Respondent for about 8 years, told John Acevedo, an organizer for the Union, that Respondent's production and maintenance employees would like to have a union represent them. The conversation occurred during Acevedo's visit to H & S Tools Corporation in Brooklyn whose employees are represented by the Union and where White also works at night. In response to White's request, Acevedo gave White membership application and authori- zation cards for distribution to Respondent's employees and set up an appointment to meet with them at 4:30 the next afternoon in front of Respondent's plant. White did meet with Acevedo at that time along with three other employees, Albert Thompson, Cephas Roberts, and David Washington. The fifth member of the stipulated bargaining unit,3 Tony Flores, indicated he did not want the Union and left. The others all filled out and signed the cards and returned them to Acevedo .4 The following Monday, April 9, Acevedo delivered the cards to the secretary-treasurer of the Union, George Goldman, who telegraphed Respondent the next morning, advising of the card signing and requesting a meeting at a mutually convenient date for the purpose of negotiating a collective-bargaining agreement. On April 12 Goldman sent a letter to Respondent stating it had received no response and quoting the telegram. On April 13, Ruth Rothman, secretary to Harold Opotow, Respondent's plant manager, telephoned Goldman to say that Opotow was out of town and would contact the Union upon his return the following week. On April 20, Opotow wrote to Goldman that The complaint alleges, the answer admits, and I find that Respondent is a Delaware corporation, with headquarters in Chicago, maintaining an office and place of business at 933 Stanley Avenue, Brooklyn, New York, where it is engaged in the manufacture, sale, and distribution of dental materials and related products; that during the year immediately preceding the complaint over $50,000 worth of its products were shipped directly to States outside of New York; and that Respondent at all material times has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. ... we have a good faith doubt that you represent a majority of our employees and as a result we are unable to comply with your request. However, should you be designated by our employees as their collective bargaining agent at an election properly held under the auspices of the National Labor Relations Board, the appropriate Company representa- tive will, of course, be available. 2. Union's additional contacts with the employees; Respondent's counterefforts Meanwhile, on April 13, Goldman and Acevedo met at a restaurant with the employees to ascertain their desires for purposes of the negotiations. These amounted to a $6 weekly raise every 6 months, two coffeebreaks a day, and an extra holiday, Good Friday.5 A few days later, shortly after April 16, Opotow, having 1 All dates are in 1973. office clerical employees, professional employees , guards, and all supervi- 2 The transcript of testimony was corrected in the interest of clarifying sors as defined in Sec. 2(11) of the Act. the record. 4 White neglected to note the date and sex on his card , and Acevedo 3 All production and maintenance employees including shipping and repaired these omissions in White's presence receiving employees of Respondent , employed at its plant, exclusive of 5 Good Friday this year came on April 20. TELEDYNE DENTAL PRODUCTS CORP. learned of the union activity, admittedly "called the men together before work to ask them what prompted them to go into this, to go into the union." According to Opotow, he received "no specific answers." However, the combined credible testimony indicates that Roberts responded wi4i, "Why not?" followed by either his or Washington's assertion that they would get more benefits through a union, to which Opotow replied by noting benefits they were already receiving and adding that his door was always open for the discussion of any problems they might have. After work on the afternoon of April 23, Acevedo met again with the men and asked if they wanted to go on strike. They answered affirmatively. But the following morning they decided not to strike at that time because Opotow, the only one who could grant their demands, was absent. Opotow appeared later that day, however, and called another meeting of the employees. He told them he was glad they had not struck and again admittedly asked "if there was anything special, any special reason for their activity." No one answered, and Opotow reminded them that his office was always open so they could talk with him "should they have problems or should there be anything that can be changed." Shortly after the men returned to work, Mrs. Rothman entered the powder room where they were working and, according to White, asked him to list on a slip of paper, which she handed him, the benefits that the men wanted and bring it to Opotow. White thereupon consulted with the men and filled out the papers He then took it to the office and headed for Opotow's room but Rothman called him over to her desk and had him read off what he had written which she typed on another paper. She then took the papers into Opotow's room, saying they had to get approval from headquarters in Chicago. White returned to the powder room, and a few minutes later Rothman reappeared, said "they okayed the paper," and gave White his handwritten slip and asked him to have the men sign it. He thereupon obtained Roberts' signature and signed it himself.? He then took it back to the office and returned it to Rothman. Rothman's account of the episode was as follows: She had learned that a plan to strike had been canceled, and, finding herself in the powder room in the course of one of her constant regular trips through the factory 8 and in view of her friendly relationship with the men,9 she asked White what the problem was and whether there was anything she could do. Since his reply was "very unclear," she suggested he speak to the men and write down exactly what was bothering them.10 She testified that Opotow had not told her to do this but that she acted entirely "on [her] own," although admittedly it was not part of her duties to let 9 Although White's testimony, like that of Roberts and Washington (Thompson had apparently quit Respondent 's employ by this time), indicates that the benefits so listed included a $6 weekly raise and two coffeebreaks a day, the list itself states instead a 6-cent-an -hour raise and only a morning coffeebreak . These discrepancies, in my view, do not affect the outcome of the case. 7 Washington chose not to sign it because , in his words, "it didn't look official." 9 The powder room has but one entrance and cannot be traversed Rothman could not recall any particular reason for her presence there. White testified she came "especially to [him] at that time. 9 They come to her with personal problems concerning which she gives 439 Opotow know what was bothering the men. She then took the paper that White gave her and showed it to Opotow.ii On direct examination she stated that Opotow "didn't say anything about it" on seeing the paper but "just received it," and that she did not tell the men whether or not their demands would be granted. On cross, she testified: Q. After you gave the paper that Clarence White had drawn up to Mr. Opotow what happened to the paper? A. He gave it back to me. Q. Mr. Opotow? A. Yes. Q. What did he say if anything? A. He couldn't do anything about it. JUDGE HERMAN: He told you that? THE WITNESS: No, he didn't do anything about it. He just gave it back to me at that time. JUDGE HERMAN: What did you mean "couldn't do anything about it"? THE WITNESS: Just looked at it and gave it back to me. JUDGE HERMAN: What did you mean by "couldn't"? THE WITNESS: I assume that he couldn't do anything about it. She then put the paper into her file tray where it remained until the day of the instant hearing, giving White a copy at his request in the interim.12 Opotow's testimony as to this event on direct examina- tion was that Rothman brought the list in and said she thought he would be interested in seeing it; that he looked at it but "had no interest in it at the time" but that he did discuss it with his supervisor in Chicago who told him "there was absolutely nothing to do about it at this time"; and that he did not say anything to Rothman as to whether he approved or disapproved of the requests. On cross, he testified that after reading the demands he told Rothman "there was nothing that [he] could do about this," and that he gave the list back to her. He also testified, however, that in his discussion with Chicago ("probably the same day") he "read . . . off" the demands, and the following colloquy ensued: Q. You said that you read them off. Did you read them off? A. I may not have read them off. I might have just related them. Q. You said you read them off. Did you have a copy of the demands in your hand at that time when you read them off? A. It is possible. sympathy, advice, or other aid In addition to her purely secretarial duties, she processes orders, makes out shipping papers, occasionally contacting Chicago in connection with shipping problems, sends out purchase orders, and does the billing 10 She testified on cross that she could "usually understand" what the men say to her u Her direct examination failed to mention her asking the men to sign the paper On cross , she acknowledged making that request because the signatures would make her "more sure" that these were the things the men "were really . concerned about." 12 She denied saying anything to White about having to clear the matter with Chicago 440 A. No. After I saw them I no longer requested them. Q. But you read them off to Chicago? A. It is possible. The next day the foreman told the men they had "got what [they] want" and to start taking a regular 10-minute break,13 and within the next few days the men told Goldman that they "didn't want the union any more," saying they had signed an agreement with the employer and "got what [they ] wanted." 14 But when they did not receive the raise they had demanded and mentioned it to Rothman she said, as White testified, "it's not over yet." The raise was not given, however.15 B. Concluding Findings 1. 8(axl) conduct As appears above, upon learning of the employees' interest in the Union, Manager Opotow convoked the men for the express purpose of ascertaining "what prompted them to go into this, to go into this union ." Although he received no specific answer at that time he was informed that the men anticipated improved working conditions generally through the Union. In response he indicated the benefits they were already receiving and suggested contin- ued improvements through his "open door" policy. A few days later, immediately after being informed that the men had refrained from a contemplated strike, he again called them together and asked if there were "special reasons" underlying their union activity. Receiving no more enlightenment than on the first occasion, he again reminded them of his open door for the discussion of "problems or should there be anything that can be changed." Almost immediately thereafter the men were visited, while working in the powder room, by Mrs. Rothman who handed White a slip of paper and asked him to list the items the men wanted and to bring it to Opotow.16 When White brought the list to the office Rothman intercepted him and took the list into Opotow's room herself. I credit White's statement that Rothman told him at the time that it was necessary to get approval from company headquar- ters in Chicago. Again, I rely not only on my overall satisfaction with White's credibility in conflicts with 13 Prior to this, according to the men, they would occasionally "slip out" for coffee or the like or be allowed to do so by the foreman as work permitted. The foreman was not called to testify . Opotow testified: Well, the men always had freedom to have coffee or milk or soda or whatever at anytime In fact, I frequently would ask someone to go out and get something for myself, and tell them if there is anything they like to get it too. This was a policy we had. It was never a formal policy, but there was no restriction. He added that the regularization of the break was instituted for "efficiency of operation" and was not directed against the Union. 14 Although White placed this at 'Is ]bout the 23rd of April," it occurred after the men were given the coffee break, which came on the 25th. 15 The holiday, Good Friday, had already passed. 16 1 discredit Rothman's testimony that her presence in the powder room DECISIONS OF NATIONAL LABOR RELATIONS BOARD Did you ask Mrs. Rothman for the demands? Rothman but also on the fact that Opotow did discuss the situation with his superiors in Chicago that day. I similarly credit White's testimony that Rothman returned to the powder room after bringing the paper to Opotow and reported that the demands had been approved. It is hardly likely that anything less than such an indication would have produced the men's defection from the Union which they announced to Goldman within the next few days. Moreover, such a statement from Rothman would have been quite consistent with the foreman's statement the following day that the men had "got what [they] want," accompanied by the actual grant of the coffeebreak.17 Opotow's explanation that the coffeebreak was merely the regularization of a prior practice does not ring true. At most, as he testified, the prior practice was for one man to go out and get drinks for the others, not for the men as a group to take a break. A measure of the validity of Opotow's explanation appears in his hyperbolic statement that Respondent had been allowing breaks "at any time ... [without] restriction." No less flimsy, in the entire congeries of events, is Opotow's assertion that the change was instituted not to discourage the men's interest in the Union but for "efficiency of operation," suddenly, after 8 years.18 In sum, the record reveals Opotow's repeated efforts to ascertain the specific reasons for the employees' union leanings by soliciting those reasons from the employees. Such solicitation of itself, on the part of "an employer who has not previously had a practice of soliciting employee grievances or complaints," carries with it a "compelling inference" of a promise to rectify the cause of the dissatisfaction. Reliance Electric Company, 191 NLRB 44, enfd. 457 F.2d 503 (C.A. 6, 1972); cf. Associated Mills, Inc., 190 NLRB 113. This inference derives added strength where, as here, the employer also invites the employees to come to him "should there be anything that can be changed."19 Here, moreover, it is unnecessary to rely on the inference alone in view of the foreman's announcement of the coffeebreak with the statement that the men had "got what [they] want" the very day following receipt of the employees' demands. Hence, whether or not Rothman's activities are attributa- ble to Respondent, its other conduct suffices to establish a purpose to defeat the Union's organizational campaign by soliciting the employee's grievances, promising to correct them, and actually redressing one, the coffeebreak, all in at that time was routine. She was unable to recall any specific reason for being there and she could not have been en route to any other part of the plant because the powder room had only one door. More credible was White's testimony that she came "especially to [him r' since the proximity of this event to Opotow's second attempt to ferret out the employee's aims points to a continuation of Opotow's effort. I was not favorably impressed generally with Rothman's manner on the stand and, as noted below, observed other objective signs of lack of veracity. 17 The testimony as to the foreman's statement was undemed, the foreman not having been called to testify. Cf. K i M Machine Company, Inc., 162 NLRB 83,96. is When asked, near the conclusion of his testimony, why it took 8 years so to improve efficiency, Opotow's answer was, "I have no answer to that." 19 In the past, Opotow had met with the employees "on occasion" to "talk about the business" or "discuss the problems that may be related to the Company." But there was no evidence of such meetings to consider redressing grievances or to "change" working conditions. TELEDYNE DENTAL PRODUCTS CORP. 441 violation of Section 8(axl). However, I find that Respon- dent was responsible for Rothman's conduct in addition, and that such conduct, in conjunction with Opotow's, constitutes further evidence of the violations found above. As already indicated (fn. 16, supra ), Rothman's initial involvement followed so closely upon Opotow's second futile attempt to ascertain the employees' aims as to suggest a third attempt by means of capitalizing on Rothman's personal relationship with the men. The surrounding circumstances tend to confirm this and, at the very least, Opotow's conduct in this connection provides ample basis for the employees to have regarded Rothman as Respondent's agent in this affair. Notwithstanding whatever personal relationship existed between her and the men and despite her nonsupervisory status, the fact is that Rothman occupied a position of confidentiality in the front office and that her duties included the transmission of messages to the men from time to time. Furthermore, her intercession in conveying the men's demands to Opotow certainly gave them reason to believe that she was acting for management in this regard,20 and since Opotow adopted her conduct to the extent of receiving the demands, and discussing them with Chicago, and took no steps to disabuse the employees of the impression that Rothman's actions were on manage- ment's behalf, Respondent must be deemed responsible therefor. Cf. Tred-Air of California, Inc., 193 NLRB 672, 673; see also Sky Wolf Sales d/b/a Pacific Industries of San Jose, 189 NLRB 933, 939. The self-serving denials by Opotow and Rothman of all misconduct related to Rothman's activity are discredited because of the numerous contradictions and inconsisten- cies that mark their testimony as well as the virtually inherently incredible nature of some of the testimony 21 Thus, Rothman testified on direct examination that when she showed Opotow the paper containing the demands he "didn't say anything about it" but "just received it." On cross, in response to the question of what Opotow had said, she testified, "He couldn't do anything about it," but when asked again whether he had told her that, she responded in the negative, adding that "he didn't do anything about it" but "just gave it back to [her]," and she "assumed that he couldn't do anything about it." Opotow's direct testimony, like Rothman's, was that he did not comment on the demands when Rothman presented them to him. But he testified on cross, contrary to Rothman's testimony, that he told her "there was nothing that [he] could do about this." His direct testimony also paralleled Rothman's in respect to his returning the list to her after reading it. On cross, however, he testified that he "read ... off" the demands to his Chicago superiors, and, when pressed as to the inconsistency, qualified the statement by saying he "may not have read them off" but "might have just related them," but that it "[was] possible" that he did read them 20 There was neither evidence nor a contention that Rothman had ever previously undertaken, in the course of her fnendly courtesies, to correct any complaints concerning working conditions. 21 Illustrative of the latter was the explanation for Rothman 's retention of the signed demands while honoring White's request for a copy, to wit, that she could just as easily have kept the copy for herself, that she "automatically" keeps the original of a paper in the files and dispenses copies. But this fails to explain at all why she found it necessary to keep any off. And of particular significance underlying this entire phase of the case was the extent to which his conversation with Chicago belied his initial testimony that he "had no interest" in the demands when he received them from Rothman. 2. 8(aX5) conduct Even assuming the Union possessed a majority of valid cards at the time of the bargaining demand 22 current Board doctrine precludes the finding of a violation in Respondent's refusal of recognition unless its conduct rendered the holding of a fair election impossible or unlikely. Green Briar Nursing Home, Inc., 201 NLRB 503; R & M Electric Supply Co., 200 NLRB No. 59. I can make no such finding on the facts of this case. The sole benefit actually conferred upon the employees here was the coffeebreak, and I think the failure to grant the wage raise and the indication of a similar fate in respect to the holiday are more likely to redound to the advantage of the Union than of Respondent. The nonfulfillment of promises is not calculated to win friends and influence voters.23 Hence I regard Respondent's 8(axl) conduct as having at most a "minimal impact on the election machinery." N.LRB. v. Gissel Packing Co., 395 U.S. 575, 615 (1%9). CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)(l) of the Act by soliciting the employees' grievances underlying their union activity, promising to redress such grievances, and granting a coffeebreak. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate the Act by its refusal to recognize the Union without an election. REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondent to cease and desist therefrom and from infringing upon the Section 7 rights of its employees in any related manner. Moreover, in order to effectuate the policies of the Act, my recommended Order will require Respondent to post the usual notices. Upon the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: record whatever of what she and Respondent urged was a purely gratuitous act on her part undertaken only as a fnendly gesture of a personal character. 22 Although the evidence suggests the possibility of material misrepre- sentations as to purpose in the solicitation of the cards , no such issue is tendered by Respondent's brief. 23 The employees' cooperation in the prosecution of the instant can tends to support this view. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 24 Respondent, Teledyne Dental Products Corp., its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting grievances from its employees to discourage interest in Electrical, Production and Industrial Workers Union, Local 118, International Union of Dolls, Toys, Playthings, Novelties and Allied Products of United States and Canada, AFL-CIO, or any other labor organization. (b) Promising wage increases, paid holidays, workbreaks, or any other benefit to its employees to undermine their support for the above-named Union or any other labor organization. (c) Granting workbreaks or any other benefit to its employees to undermine their support for the above- named Union or any other labor organization. (d) In any related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act. 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business in Brooklyn, New York, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director of Region 29, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 25 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."