Direct Image Corp. of New York

DIRECT IMAGE CORPORATION Direct Image Corporation of New York, a subsidiary of Direct Image Corporation and Pocketbook and Novelty Workers Union, N.Y., Local 1, AFL-CIO. Case 2-CA-14327 November 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On August 3, 1977, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and General Counsel filed limited exceptions and a brief in support of that Decision. 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 rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Direct Image Corporation of New York, a subsidiary of Direct Image Corporation, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except that the attached notice shall be substituted for that of the Administrative Law Judge. We affirm the Administrative Law Judge's findings that Jaime Rarmrez is a supervisor and Pnscilla Tuzzo is an office clerical and that as a result both are excluded from the unit. Accordingly, we find it unnecessary to pass on the placement of employees Leroy Roper, Arthur Braun. and Jenny Moye since even with their inclusion in the unit they could not affect the Union's majonty status. 2 The General Counsel excepted to an inadvertent omission in the notice to employees attached to the Administrative Law Judge's Decision. We find merit in this exception. The notice has been modified accordingly. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate our em- ployees concerning their membership in, or sympathies for, Pocketbook and Novelty Workers Union, N.Y., Local 1, AFL-CIO. WE WILL NOT poll our employees regarding their membership in or sympathies for the above- named Union without observing the objective safeguards required by the National Labor Relations Board to assure our employees the protection of their rights guaranteed under the National Labor Relations Act, as amended. WE WILL NOT refuse to bargain in good faith with the above-named Union, upon request, over wages, hours, and other terms and conditions of employment for all production and maintenance employees at our New York plant. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL bargain, upon request, with the above-named Union as the exclusive representa- tive of all employees in the unit described above with respect to wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed contract. All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. DIRECT IMAGE CORPORATION OF NEW YORK, A SUBSIDIARY OF DIRECT IMAGE CORPORATION DECISION MAX ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in New York, New York, on October 21, 22, 28, and 29, 1976. on a complaint filed by the General Counsel of the National Labor Relations Board and an answer filed in opposition thereto by Direct Image Corporation of New York, a subsidiary of Direct Image Corporation, herein called Respondent.' At issue is whether Respondent I The complaint, which issued on July 30, 1976, is based upon a charge filed on June 6, 1976, and served on June 9, 1976. 233 NLRB No. 55 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter. Briefs have been received from the General Counsel and Respondent which have been duly considered. 2 Upon the entire record made in this proceeding, including my observation of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, a California-based corporation, maintains an office and place of business in New York, New York, where it is engaged in the manufacture, sale, and distribu- tion of graphic arts materials and related products. During the annual period material to this proceeding, Respondent manufactured, sold, and distributed at its New York place of business products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said facility in interstate commerce directly to States of the United States other than the State of New York. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that Pocketbook and Novelty Workers Union, N.Y., Local 1, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that on or about May 19, 1976,3 Respondent, unilaterally and under conditions of its own choosing, conducted a poll among its employees in an appropriate unit to determine the Union's majority status in that unit, and coercively interrogated employees con- cerning their membership in, and activities and sympathies on behalf of, that labor organization, all in violation of Section 8(a)(l) of the Act. The complaint further alleges that Respondent contravened the provisions of Section 8(a)(3) of the statute when, on or about May 20, it reduced the lunch hour of its cmployees from 45 to 30 minutes, thereby requiring them to work an additional 15 minutes more per day without any corresponding increase in their compensation, because the employees had joined and assisted the Union. Finally, the complaint charges that, on or about May 19, and continuing to date, Respondent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union as the duly designated bargaining representative of its employees in an appropri- ate unit, 4 despite the demonstration of the Union's majority status which resulted from the conduct of Respondent's poll. For its part, Respondent generally 2 The General Counsel's unopposed motion to correct the transcnpt in certain minor respects is hereby granted. 3 Unless otherwise indicated, all dates herein fall in 1976. 4 The parties stipulated and I find that all production and maintenance employees at Respondent's plant at 41 West 25th Street. New York. New denies the commission of any labor practices banned by the Act. More specifically, it asserts that no supervisor was authorized by Respondent to poll the employees' senti- ments for unionization and that, even if such a sampling did take place, the results did not establish that a majority of the personnel in the unit favored the Union. Respondent is engaged in the manufacture and sale of various graphic arts and related products, including molletin covers, speedee sleeves and mats, cleanup sheets, and commercial screen tints, which are used primarily in the printing industry. The home office is located in Monterey, California, where Respondent operates its major manufacturing plant and handles all the administrative functions of its farflung enterprises, including customer billing, auditing, sales, preparation of payrolls, and em- ployee relations matters. As part of its business empire, Respondent maintains facilities in Denver and Wheatridge, Colorado; Warminister, Pennsylvania; Elmhurst, Illinois; and New York, New York. The offices in Colorado and Pennsylvania function as a base for local resident salesmen who procure customer orders and transmit them to California for fulfillment. The New York branch manufac- tures approximately 20 percent of the items which it sells and warehouses the balance of the products which it apparently receives from the California plant for sales in its territory. The New York branch, which is the only one of Respondent's installations involved in this proceeding, services the entire eastern seaboard. Fern Haberman occupies the position of president of Respondent and Peter J. Di Noto is listed as the vice president. Both are headquartered in Monterey, California. Manuel Aranda, who heads the New York branch, is classified as the eastern regional sales manager and is concededly a supervisor within the meaning of Section 2(11) of the Act. The New York premises consist of two floors, one in the basement and the other on the first level of a building in midtown Manhattan. The first floor contains two offices, one of which houses Manager Aranda. The second is reserved for the secretary, Priscilla Tuzzo, and Technical Sales Representative Arthur Braun. A large area behind the offices is utilized as a stock storage location for Respondent's products. Jaime Ramirez, the head shipping clerk, works at a desk in that area, and Alberto Leon, the assistant shipping clerk, performs his shipping duties at a nearby packing table. At the far end of the floor is a darkroom where Leroy Roper is employed in what is styled as the screen tint department. There, he produces commer- cial screen tints through the use of photographic equip- ment. Roper was assisted in his darkroom chores by Jenny Moye who worked under his direction until mid-May when she became ill and left Respondent's employ. In the basement, Respondent employs four sewing machine operators, Miguelina Castillo, Aldagracia Guzman, Aura Keppis, and Daisy Moreira, who sew such items as cotton molletin covers which are cut to size by Antonio Garcia who is classified as a cutter. Following the sewing operation, the covers are transported to a table utilized by York, excluding all professional employees, office clencal employees, watchmen, guards, and all supervisors as defined in Sec. 2(11) of the Act. constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. 366 DIRECT IMAGE CORPORATION production helper Osvaldo Castaing Colon where they are stamped and placed in a sealed bag. The bags are then taken upstairs to Leon who prepares the boxed items for shipment to customers. In addition, Ismail Claudio, another production helper, receives speedee sleeves from the sewing machine operators which he packs in boxes, appends labels to them, and conveys the boxes to Leon for shipment. Finally, Mario Alcazar, also classified as a cutter, prepares quick clean sheets in different sizes, packs them, and delivers them to Leon for the fulfillment of orders. Thus, with the exclusion of Manager Manuel Aranda, an admitted statutory supervisor, Respondent carries 14 New York branch individuals on its payroll. It is undisputed and I find that, on the morning of May 18, Alberto Leon placed a call to the Union's offices where he reached Miguel Garcia, a union organizer. Leon informed Garcia that he and his fellow workers were desirous of collective representation at Respondent's plant, and asked whether they could enlist the support of that labor organization to represent them. After explaining the Union's benefits to Leon, Garcia arranged to meet with the former that day. At the noon hour, Garcia, in company with Alex Schwartz, another union organizer, met with Leon outside the plant. Leon repeated that the employees were interested in union representation. Garcia agreed to undertake the organizational task, and proffered 15 authorization cards to Leon with instructions to take them inside the facility and solicit the signatures of his fellow employees on the designations. After a further discussion of the Union's representational goals, Leon entered the plant during the lunch hour and distributed the cards. Leon testified and I find that he read the contents of the designations to the assembled workers in Spanish and assisted them in their execution. 5 Seven employees, including Leon, signed the documents. One employee, Mario Alcazar, hesitated to do so at the time because he was unsure whether he wanted to be represented by the Union. However, a short time later, he initialed the card and remitted it to Garcia through Leon, thus bringing the Union's representative total to eight. When Leon finished his solicitation, he and the employees walked outside where he turned over the eight signed cards to Garcia. Garcia proceeded to explain the Union's benefits which the employees would receive after it attained representational status. The meeting ended with Garcia and Schwartz assuring the new members that the organizers would call upon their "boss" after the lunch hour. Miguel Garcia testified without contradiction and I find that, at 1:30 p.m., he and Schwartz visited the plant in quest of the boss and informed the secretary in the office, Priscilla Tuzzo, that they wished to speak with him. When Tuzzo replied that he would be back at 3 p.m., the men left the premises and returned at that hour. Garcia and Schwartz again requested to see the boss, and Tuzzo stated, "All right, Mr. Aranda is here, he is the boss." The organizers entered Aranda's office and informed the latter that "we would like to represent the workers in the shop and we have a majority of cards. If you would like to sit down and negotiate a contract with us in good faith." Aranda replied, "I'm the boss here but I think that I need . . . the approval of the boss in California." Aranda added that the owner of the Company, Fern Haberman, was located in California and that "I'm going to be in touch with California this afternoon. I'm going to give you [Garcia and Schwartz] a call in the morning and I'm going to let you know." It is undisputed and I find that, after Garcia and Schwartz concluded their conversation with Aranda on May 18 and departed the plant, Aranda summoned Leroy Roper and Jaime Ramirez and, within earshot of Leon, inquired whether they knew the identity of Garcia and Schwartz. When the men answered in the negative, Aranda announced that "those were men from the Union." Upon gaining this intelligence, Roper exclaimed, "Oh, shit." Following this colloquy, Aranda, Ramirez, and Roper approached Leon's worktable. When they arrived, Aranda asked Leon whether any union representative had spoken to him. Leon replied, "No, I went to them." Aranda inquired, "Why you do that," and Leon responded, "because I want my own, I wanted benefits." Aranda retorted, "Why didn't you talk to me first before you went to that?" Leon answered that "I didn't know." Aranda and Ramirez then left the area while Roper remained. After their departure, I find that Roper told Leon that "if California wanted to throw us out and bring employees from California to the Company to back us up that we could get thrown out." At the end of their conversation with Aranda on May 18, and armed with the eight signed authorization cards, Garcia and Schwartz returned to their offices where Union Assistant Manager Domenic Di Paola immediately dis- patched a registered letter to Respondent's New York branch in care of Aranda. The letter read: Please be advised that a majority of your employees have designated [the Union] as the sole and exclusive bargaining representative in regard to wages, hours and all other terms and conditions of their employment. Therefore, we are asking for a conference as soon as possible, to discuss same. Please contact the undersigned upon receipt of this letter. Not hearing from Aranda on the morning of May 19, Garcia and Schwartz went back to the plant that afternoon and were told by the manager that "I called last night to California but they don't give me no answer .... Wait, maybe they are going to call, I let you know something else." Although the union organizers met with Aranda again during the balance of May, they continued to receive the response that "I have no reply from California yet." Finally, on June 1, the Union obtained the following written communication from President Haberman: This is with reference to your request that Direct Image Corporation of New York enter into a recognition agreement with your Union. This request is now under advisement, and we will advise you of our position in the near future. I Most of Respondent's employees are Spanish-speaking. 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since that date, the Union has gotten no further word from Respondent concerning its recognitory demand. Following his meeting with the union representatives on May 18, Manager Aranda commenced to question the employees concerning their sympathies for the Union. Antonio Garcia, a cutter who worked in the basement of Respondent's plant, testified that, on the afternoon of May 18, Aranda entered the area. During his visit, the manager asked each of the four sewing machine operators "Do you want the union, yes or no." Each replied in the affirmative. Aranda then approached Garcia's work station and inquired whether the latter favored the Union. Garcia responded that he did. According to Garcia, Aranda made no mention during the conversation of the purpose of his inquiry, never gave Garcia any assurances that Respondent would take no action against him for answering the query, and never mentioned that the employee had the option of responding in secret to the question. Miguelina Castillo, a sewing machine operator who worked in the basement with Antonio Garcia, testified that, after she signed a union authorization card on May 18, Manager Aranda came to her machine and "asked me if I wanted a union." Castillo replied that she did and, without further comment, Aranda turned away. Aldagracia Guzman, another sewing machine operator, testimonially related that, shortly after she signed the union designation on May 18, Aranda approached the operators at their machines and "asked us one by one" whether they desired union representation. The first such question was posed to Daisy Moreira, after which Aranda turned to Guzman and put the same question to her. Guzman stated that she had authorized the Union to represent her. Aranda then queried the other employees about the matter. Daisy Moreira, who operated a sewing machine adjacent to Guzman's, averred that she signed a union card on a date which she could not remember. She related that, the day after the signing, Aranda came to her machine and asked whether she had executed a union designation. Moreira stated that she had, whereupon Aranda questioned the other employees "one by one [about] the same thing." 6 Aura Keppis, another sewing machine operator, recounted on the stand that she executed a union card on May 18, and that, on the following day, Aranda asked her if she wanted to be represented by the Union. 7 Keppis said she did. According to Keppis, Aranda offered her no assurance against reprisals because of her answer, nor did he indicate to her that she could register her union propensities through secret channels. Finally, Mario Alcazar, a cutter, testified that he initialed a union card on May 18 manifesting his desire to join the Union. That afternoon, Manager Aranda came down to the basement area where 6 In light of the testimony of Manager Aranda, as well as that of employees Leon, Antonio Garcia, Castillo. Guzman, and Alcazar, placing the date of Aranda's polling as May 18, 1 am convinced that Moreira was mistaken when she testified that Aranda interrogated her on May 19 regarding her adherence to the Union and I find that this incident actually took place on May 18. 7 As in the case of Moreira, I find that Keppis was mistaken when she testified that Aranda questioned her on May 19. and I conclude that the interrogation occurred on the afternoon of May 18. 8 During his examination, Alcazar admitted that he knew what he was doing when he executed the designation. explaining that "I knew that the card was for the purpose of the union to get into the company." Alcazar Alcazar worked and inquired of each employee individual- ly whether they had signed a union designation. When the question was put to Alcazar, he replied that he had done so.8 In his testimony, Manuel Aranda traced his employment history in the graphic arts industry and outlined his functions as the eastern regional sales manager for the New York branch office. Aranda recited that he had been hired to fill the position about a year and a half prior to this proceeding by Vice President Peter J. Di Noto in Monterey, California. With regard to the operation of the New York plant, he stated that, unlike the Colorado or Pennsylvania installations, the New York facility manufac- tured 20 percent of its stock and warehoused the balance of its inventory. Sales orders were received either by tele- phone, by mail, or by his personal solicitations. When orders were taken by telephone or by mail, they were normally received and processed by his secretary, Priscilla Tuzzo. After receipt of the orders, Tuzzo would proceed to type them up on an invoice, and then carry them to Head Shipping Clerk Jaime Ramirez who was responsible for filling and shipping the orders. If screen tints were involved, Tuzzo would convey the invoices to Leroy Roper for filling and shipment in his department. In outlining his duties as manager, Aranda described his job as "Primarily to solicit business, service our dealer network on the east coast and see that I could help them out with their problems concerning our supplies." Aranda added that he had the responsibility "To effect sales and service any account you have to make sure that the material gets delivered and the material gets manufactured and gets ordered." To discharge his responsibilities, Aranda hired and fired personnel and directly supervised their work. Aranda reported that his sales duties required his absence from the plant for "several hours during the day," and that, in his absence, Tuzzo received his telephone calls and typed his correspondence. When questioned as to who would look after the shop during his daily absences, Aranda replied that "the shipping depart- ment [headed by Jaime Ramirez] would be in charge of packing. The ordering would wait until I got back." The following colloquy then ensued between Aranda and Charging Party's counsel, Bogen: Q. Is there any question that Ramirez in your absence would look after the affairs of the company, in your absence, to make sure that things would run well? A. There is a question. Q. Are you suggesting in your absence nobody in the shop has supervisory authority; is that what you are telling us now? then claimed that he had been pressured into signing by solicitor Leon, that he experienced a change of heart regarding unionization on May 19. and that he subsequently so informed Manager Aranda. Respondent can gain scant solace from either of these claims. Regarding the first, the U.S. Supreme Court has clearly rejected the concept that a signed authorization card is invalid because the employee executed it under pressure from his coworkers. See N.L.R.B. v. Gissel Packing Co. et at., 395 U.S. 575, 603-604 (1969). With respect to the second claim, Alcazar's change of heart is irrelevant because such change, if in fact it took place at all, occurred after the Union's demand for recognition and after Aranda's interrogation of Alcazar. 368 DIRECT IMAGE CORPORATION A. No, sir, I am not saying that. Q. Well, who does, in your absence? If you are not there, who is responsible for the operation of the shop in New York? A. There is no one person that is responsible for the running of the shop. Q. No one at all, the shop just runs by itself? A. Yes, sir. Q. And you heard the people testify, I think you sat through all the testimony of the witnesses and you heard them state their opinion that Ramirez is their supervisor, he tells them what to do? A. I heard that. Q. Are you suggesting that the people are incorrect, that is not the case? A. To a point they were incorrect. Q. Pardon? A. To a point they were - well, no, they were correct in what they were saying. Q. There is no question in your mind that the testimony you heard describing the witnesses, your workers, your former workers telling what Ramirez did or what he told them to do is correct, there is no question? A. That is correct. Aranda testimonially confirmed that, on the afternoon of May 18, he met with union organizers Manuel Garcia and Alex Schwartz at the plant. In response to their demand for recognition, Aranda informed them that "I was no way able to answer their questions or commit the company to anything because I was not in any position of authority as far as that is concerned. I do not have that authority to do it. I would just have to pass it on to my home office, which is California." A few days later, the union representatives revisited the plant and requested that Aranda sign a document recognizing the union as bargaining agent for the employees. Aranda reiterated that "I had no authority to proceed any further with them as far as discussions of any kind. However, I would be in the capacity to relay any information or pass on any documents given to me on to California for their action and that would be taken care of by California." Aranda testified that, after the union emissaries left the plant on the afternoon of May 18, he proceeded to speak "to a few of the employees" concerning the Union. When questioned as to why he did so, Aranda initially replied that he sought "To ascertain whether these two gentlemen who claimed they were from the union, in truth and fact were from the union," and he denied that he had polled the employees concerning their union sentiments or member- ship. Pressed further on the matter, Aranda changed tack and confessed that he had interrogated "Some of them" as to whether they desired that the Union represent them, and these employees responded in the affirmative. 9 Aranda recalled that he spoke to Alberto Leon, the prime movant for unionization, that afternoon and inquired "If he [Leon] recognized the two men who had come into my office." Leon acknowledged that he knew of their identity. 9 Aranda also admitted that "They Ithe employees I all were there." 10 Aranda stated that "I don't remember what I asked her [Moreira]" However, Aranda proclaimed that he did not ask Leon if the latter had joined the Union. Similar interviews ensued with sewing machine operators Daisy Moreira and Alda- gracia Guzman. In each case, Aranda probed into their knowledge of the Union's activities at the plant and each operator replied that they were aware that the organizers sought recognition and bargaining rights.'° Without offering any explanation therefor, Aranda noted that he did not question darkroom employee Leroy Roper about the Union and, so far as appears on this record, he did not poll either Tuzzo, Braun, Moye, or Ramirez about the matter. Rounding out Aranda's testimony regarding the events which transpired immediately after the visit of the union organizers and his questioning of the employees on May 18, he testified that he telephoned Respondent's home office in Monterey, California, and engaged in a confer- ence call with President Haberman, Vice President Di Noto, and Respondent's counsel, which lasted for 15 minutes. According to Aranda, he made it a practice of calling either Haberman or Di Noto "every working day . . .to discuss generally the matters that had come up during that day." He added that the Union's demand for recognition as the majority representative of the employees "was a fairly important decision or hot item or significant matter to discuss with California." While Aranda was not questioned on the stand as to whether he divulged to his superiors any information concerning the results of his interrogation of the employees regarding their union affinities, I deem it reasonable to infer and I consequently find that he conveyed this intelligence to them in light of his testimony that he considered the advent of the Union to be a "fairly important decision or hot item or significant matter." Continuing the narrative, Alberto Leon testified that, prior to May 19, he normally punched out for lunch at 12 noon, punched back in at 12:45 p.m., and continued on break until I p.m. at which time he reported to work. On May 19, Leroy Roper approached him and remarked that employees were required to punch out for their lunch period at 12 noon, punch back at 12:30 p.m., take a break until 12:45 p.m., and then resume their duties. According to Leon, Roper stated that "California had sent a message and had told Aranda to tell us that the lunch hour was going to be 12:00 to 12:30, punch at 12:00 and 12:30 and fifteen minutes break to 12:45 and then, after 12:45 back to work." Roper added that "that was the way it's supposed to be running all the time." Leon related that this was the first occasion since his employment in September 1975 on which he had experienced any change in his customary practice of taking an hour off for lunch and break. However, Antonio Garcia testimonially recited that it was "the usual thing" both before and after May 19 to punch out at noon, punch in at 12:30 p.m., and return to work at 12:45 p.m., and Garcia was corroborated in this regard by the testimony of Aura Keppis and Daisy Moreira. Moreover, it is undenied that, on March 30, under the signature of Manuel Aranda, Respondent distributed an intracompany memorandum to all employees of the New when quened if he inquired into whether she had signed a union card or embraced the Union's cause. 369 DECISIONS OF NATIONAL LABOR RELATIONS BOARD York branch relating to the subject of "Time Clock." It read: All employees of the New York branch must punch out at 12 o'clock and punch in at 12:30 each and every work day. Please cooperate with us so that your time cards can be made out efficentely [sic] and correctly. Please initial this memo so that we know you have read it and agree to this procedure. The document was signed by Leon, as well as Keppis, Antonio Garcia, Moreira, Guzman, Claudio, Colon, Castillo, Alcazar, and Jenny Moye. Significantly, the signatures of Jaime Ramirez, Priscilla Tuzzo, Arthur Braun, and Leroy Roper do not appear thereon. On the basis of the foregoing, I am convinced and find that, while Leon may have taken a lunch and break period which spanned an hour, it was company policy established long before the employees embraced the Union which required that they ring out on the clock at 12 noon for lunch, punch back in at 12:30 p.m., take a break until 12:45 p.m., and then return to their duties. I further find that the other employees, including Keppis and Moreira, were aware of and observed this protocol both before and after they joined the Union on May 18. In short, I find that Respondent did not shorten the lunch period on and after May 19 to punish its employees for having selected that labor organization as their bargaining agent, and that they therefore did not suffer economic loss by any alteration in their work schedules. As heretofore chronicled, it is undisputed that, on the morning of May 18, Alberto Leon telephoned the Union's headquarters and queried Organizer Manuel Garcia about the prospects of enlisting the Union's support to enhance their working conditions at Respondent's plant. Garcia outlined the Union's benefits to Leon and, at noon that day, Garcia and fellow organizer Schwartz met with Leon outside the shop. Garcia gave 15 union authorization cards to Leon with instructions to return to the plant and solicit the membership of his cohorts during the lunch break. Leon did so and, in the company of his fellow employees, he rejoined the organizers and turned over eight executed designations to them. I find that, later in the afternoon on May 18, Garcia and Schwartz journeyed to the plant and visited with Manager Manuel Aranda. At the outset of their dialogue, Garcia identified himself, stated that he represented a majority of the employees at the New York branch, and demanded exclusive recognition as their collective-bargaining agent. Aranda replied that he had no authority to commit the Company on this matter, and promised to relay Garcia's demand to his superiors in California. At this juncture, the organizers left the premises and proceeded to their headquarters where, under date of May 18, Union Assistant Manager Domenic Di Paola mailed a certified I In his brief, the General Counsel asserted that Aranda had questioned only seven employees on the afternoon of May 18. In my view of the evidence, the General Counsel has underestimated the scope of Aranda's inquiry. Inasmuch as Aranda himself testified that "They [the employees all were there" when he conducted his survey, I can only conclude, as I do, letter to Aranda formally presenting his recognitional claim and requesting an early bargaining session. After the departure of the union representatives, Aranda summoned Head Shipping Clerk Jaime Ramirez and Leroy Roper who worked in the darkroom and, in the presence of Leon, informed them that the two strangers whom he had encountered in his office earlier that afternoon were union agents. During his stint on the stand, Aranda was an evasive witness who did not impress me with his candor, and I discredit his testimony insofar as it collides with that of Leon, Alcazar, Keppis, Guzman, Antonio Garcia, Castillo, and Moreira. Based upon the credited testimony of these employees, I find that, when Ramirez and Roper returned to their work tasks, Aranda approached Leon and, after questioning this employee, learned that Leon had searched out the Union on his own initiative because he desired more favorable benefits from the Company. Hearing this response, Aranda inquired as to why Leon had not consulted with the manager before calling the Union, to which Leon replied that he did not know. I find that, following his interrogation of Leon on the first floor of the plant, Aranda ventured to the basement where he proceeded to interrogate each of the eight employees located in that area "one by one" about whether they desired or favored the Union, and seven replied in the affirmative.' I also find that, during his questioning of the employees, Aranda failed to assure them that no reprisals would be taken against them for their answers, and did not guarantee secrecy to their responses. Thereupon, Aranda telephoned Respondent's home office in California and engaged in a conference call with Respondent President Haberman, Vice President Di Noto, and counsel, during which he reported that the Union had demanded recogni- tion as the majority representative of the New York branch employees. I also find that Aranda relayed the information that he had polled the employees and that eight of them clearly favored the Union. I further find that, on two occasions following the Union's May 18 recognitory demand, Aranda informed the Union that he had not yet received a reply from his headquarters. Finally, on June 1, President Haberman notified the Union that Respondent would take the Union's request under advisement and promised a prompt reply. It is undisputed and I find that Respondent never thereafter responded to that request. The complaint alleges that Respondent coercively inter- rogated its employees concerning their membership in and sympathies for the Union by Aranda's conduct on May 18. I have hereinabove found that Aranda engaged in such activity on the date in question. I therefore conclude that Respondent thereby violated Section 8(a)(1) of the Act. The complaint further charges that Respondent offended that section by conducting a poll among its employees on May 18, unilaterally and under conditions of its own choosing, for the purpose of ascertaining the Union's majority status. I have found that Aranda did in fact question each employee individually to determine whether that Aranda also posed his question to Osvaldo Castaing Colon, another card signer, in the course of his "one by one" inquisition, and that Colon gave a similar reply. Accordingly, I find that, on May 18, Aranda became possessed of the knowledge that eight employees had espoused the Union's cause. 370 DIRECT IMAGE CORPORATION they favored union representation, and learned that eight of them had enlisted its collective support. In Struksnes Construction Co., Inc.,12 the Board set forth the guidelines which must be followed before such polling may achieve legal privilege. That tribunal there declared that: Absent unusual circumstances, the polling of em- ployees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmo- sphere. 13 The Board has further ruled that such a poll is presump- tively invalid, and that an employer who conducts it must successfully shoulder the burden of establishing compli- ance with the guidelines enumerated in Struksnes. 14 In view of the fact that neither Aranda nor the questioned employees testified that Aranda informed them of any of the safeguards noted above, I conclude that the conduct of the poll by Respondent was violative of Section 8(a)(1) of the Act. In his complaint, the General Counsel additionally maintained that Respondent ran afoul of Section 8(a)3) of the statute by reducing the span of the lunch hour for employees by 15 minutes, thereby requiring them to toil 15 minutes more per day without any corresponding increase in their compensation for the added time worked because they joined and assisted the Union. The General Counsel does not press this allegation in his brief and, from aught that appears, has abandoned it. In any event, I have heretofore found that Respondent required all employees to clock out for lunch at 12 noon and clock in at 12:30 p.m., with a 15 minute break thereafter, rather than allowing them an additional 15 minutes before reporting to work, and that this company rule existed long before the Union came upon the scene. I shall therefore dismiss this allegation from the complaint for lack of proof. I next turn to a consideration of the final allegation in the affirmative pleadings. The General Counsel therein con- tends that Respondent refused to bargain with the Union on or about May 19 in violation of Section 8(a)(5) of the Act. In this connection, he asserts that, following the conduct of Aranda's poll of the employees on May 18, Respondent learned from him that a majority of the workers had designated the Union as their bargaining representative and that Respondent was therefore bound 12 165 NLRB 1062(1967). 13 Id. at 1063. '4 Montgomery Ward& Co., Incorporated, 210 NLRB 717 (1974). 5S Alternatively, the General Counsel claims that Respondent had indulged in such serious and substantial unfair labor practices concurrent with the Union's recognitional demand as to warrant the entry of a remedial order requiring Respondent to recognize and bargain with that labor organization under the teachings of the United States Supreme Court in N.L.RB. v. Gissel Packing Co., et al., 395 U.S. 575 (1969). In light of my ultimate findings and conclusions herein, I deem it unnecessary to consider this alternative argument. 16 See International Association of Machinists. Tool and Die Makers Lodge No 35, etc. v. N.L. R. B., 311 U.S. 72. 80 (1940): by the results of that survey to recognize and bargain with it.l5 On the other side of the barricades, Respondent denies that Aranda was authorized to act on its behalf in conducting the poll, and that it consequently may not be considered as a substitute for a Board-conducted election. It further argues that, even if Respondent must bear responsibility for Aranda's conduct in this regard, the poll did not demonstrate that a majority of the unit employees had selected union representation. I find no merit in Respondent's defense based upon the conduct of its poll. Aranda is admittedly a supervisor within the purview of Section 2(11) and was the most responsible official in Respondent's hierarchy at the plant. According to Aranda's own testimonial utterances, he was primarily called upon to solicit business and service Respondent's dealer network on the east coast. In the discharge of these responsibilities, he supervised the manufacturing and delivery of Respondent's products to its customers. To accomplish these ends, he possessed and exercised the authority to hire and fire employees and, during his presence in the plant on workdays, he effectively assigned and directed the work of the employees under him, and selected the workers who were destined for layoffs or for overtime duties. However, inasmuch as the officials in Respondent's home office in California con- trolled the business and labor relations policies of its corporate branches, Aranda was obligated to look to and serve as a conduit for the determinations formulated by those superiors on a daily basis. Thus, Aranda testified that he was the only person in the New York branch who was consulted by management concerning operational matters, that these consultations occurred daily, and that the employees knew that when Aranda spoke, he spoke with the voice of President Haberman or Vice President Di Noto. Hence, in the eyes of the employees, they justifiably had reasonable cause to believe that Aranda was acting for and on behalf of management in doing what he did and saying what he said. Moreover, by Aranda's own admis- sion, he was also obligated to keep his superiors in California apprised "every working day" of all matters "that had come up during the day," and he regularly performed this task. Contrary to Respondent's contention, I am far from convinced that Aranda served as Respon- dent's agent only "for certain purposes," and I conclude that Respondent was fully responsible for his conduct on May 18.16 With respect to the events which transpired on May 18, I am willing to assume that, after the Union registered its demand for recognition and bargaining rights with Aranda, the New York branch manager, without prior, specific instructions from Respondent's headquarters in California, We are dealing here not with private rights . . . nor with technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compul- sion, domination, or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible. 371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD polled the employees to ascertain whether a majority of them had actually enlisted in the ranks of the Union. However, I have found that, following this inquiry, Aranda notified his superiors of the Union's demand and the positive results of the poll. Despite the receipt of this information on May 18, Respondent never once ques- tioned the accuracy of Aranda's head count, never once publicly disassociated itself from Aranda's survey, and never once insisted that the Union demonstrate its majority status either in a Board-sponsored election or by any alternative method. Indeed, Respondent's lack of a bona fide doubt as to the Union's numerical strength is exemplified by its written reply of June I to the Union's recognitory demand in which it simply stated that it would take the Union's request under advisement and timely respond thereto, a response which was never forthcoming. In sum, I find that, on May 18, Respondent knew that the Union had obtained eight adherents from its work complement, and never doubted the correctness of that count.17 At the hearing, the litigants stipulated to the appropria- teness of a production and maintenance unit described marginally above. However, the General Counsel asserted that the unit should be limited to the inclusion of sewing machine operators Miguelina Castillo, Aldagracia Guz- man, Aura Keppis, and Daisy Moreira, cutters Antonio Garcia and Mario Alcazar, assistant shipping clerk Alberto Leon, and production helpers Ismail Claudio and Osvaldo Castaing Colon, making a total of nine employees. Respondent, on the other hand, countered that Jaime Ramirez, the head shipping clerk, Arthur Braun, the technical sales representative, Priscilla Tuzzo, the secre- tary, Leroy Roper, the darkroom and screen tint man, and Jenny Moye, Roper's assistant, should also be included, thus bringing the unit figure to 14 employees. I have found that, on May 18, the Union had received eight validly executed authorization cards signifying that the employees desired union representation. Accepting the General Counsel's numerical unit contention of nine employees, it is manifest that the Union represented an overwhelming majority on that date. Even were I to adopt Respondent's unit figure of 14 employees, it is also abundantly clear that the Union possessed an unques- tioned majority of 8 out of 14. However, assuming, as the General Counsel presupposed, that Aranda had only polled seven employees on May 18 and conveyed their affirmative responses to Respondent, I am nevertheless convinced that the Union still had a majority showing on that date because neither Jaime Ramirez, Priscilla Tuzzo, Arthur Braun, Leroy Roper, nor Jenny Moye appropriately 17 See N.L.R.B. v. Gissel Packing (o., 395 U.S. 575. 594: Thus, an employer can insist that a union go to an election, regardless of his subjective motivation, so long as he is not guilty of misconduct: he need give no affirmative reasons for rejecting a recognition request, and he can demand an election with a simple "no comment" to the union. The Board pointed out, however, (I) that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union. 18 Ramirez earns between $150 and $200 per week. The parties stipulated and I find that seven of the employees in question earned the weekly wages set forth opposite their names below. belonged in the unit. I therefore turn to a consideration of their unit placement. The record establishes and I find that Ramirez is classified as Respondent's head shipping clerk, spends approximately 15 hours per week performing shipping duties, and devotes 25 hours to nonshipping work. Ramirez assigns work to the employees, monitors their performance, and schools them in the manner in which they are required to execute their functions. During the frequent daily absences of Aranda from the plant, Ramirez is in complete charge and possesses and exercises the authority to grant time off to employees upon their request. Unlike the nine employees in the General Counsel's proposed unit, Rami- rez does not punch the timeclock, does not receive overtime pay, receives a weekly salary almost double that earned by most, if not all, of the designated nine,'8 and has a set of keys with which he opens the plant each morning. On the basis of the foregoing and the record as a whole, I find that Ramirez is a supervisor within the meaning of Section 2(11) of the Act and should be excluded from the unit. Priscilla Tuzzo occupies an office next to Aranda's where she spends practically all of her working time handling telephone calls, preparing outgoing mail, maintaining the files of dealer accounts, and typing timesheets and invoices, as well as correspondence for Aranda. With the exception of Leon's occasional assistance in locating a particular product for her, Tuzzo has little if any daily contact with the other employees. Unlike the designated nine unit employees claimed by the General Counsel, Tuzzo also receives a weekly salary twice as large as the weekly wages paid to them, does not punch the timeclock, and receives no pay for overtime work. In view of the foregoing, I find that Tuzzo is an office clerical employee who should be excluded from the production and mainte- nance unit. "9 Arthur Braun was employed by Respondent on August 17 and immediately embarked upon a course of training to learn the workings of the industry. Braun is carried on Respondent's payroll as a "technical sales representative" and works in Tuzzo's office where he studies the available catalogues and visits Respondent's dealers. Apart from occasionally performing packing duties, Braun does not otherwise work in the plant. Unlike the production and maintenance personnel, Braun does not punch a clock, is not paid overtime, wears a business suit and tie, carries a briefcase, and earns a weekly salary of $165. On the basis of the foregoing, I find that Braun does not share a sufficient community of interest with the production and maintenance employees to warrant his inclusion in the unit. I shall therefore exclude him. Castillo Leon Alcazar Guzman Colon Moreira Keppis $92.00 92.00 92.00 118.00 94.40 92.00 96.00 The record does not disclose the weekly wage of Claudio or Garcia. 59 See Hygeia Coca-Cola Bottling Company, 192 NLRB 1127, 1128-29 (1971). 372 DIRECT IMAGE CORPORATION Leroy Roper works exclusively in the darkroom at the plant where he is responsible for producing commercial screen tints and photographic materials and maintaining inventory records. No other individual at the facility engages in this type of work with the possible exception of Jenny Moye, who devoted approximately 50 percent of her time to the darkroom. Roper does not clock in or out, he receives no overtime compensation, and he is paid on a salary basis which exceeds $165 per week. Roper possesses a set of keys for the plant with which he closes the facility in the evening. On the record before me, I am persuaded and find that he does not share a sufficient community of interest with the other employees who are concededly in the unit. Accordingly, I shall exclude Roper. Finally, Jenny Moye was employed to assist Roper in the performance of his screen tint department chores. On May 17, the start of the workweek at the plant, Moye telephoned Aranda to report that she had taken ill and would not show up for work that day. According to the testimony of Aranda, Moye assured him that "she would be in about the following week or so," although she was suffering from a lung disease and was receiving medical attention. After this conversation, Aranda made no effort to contact Moye to ascertain the full extent of her malady or intended leave of absence. Nor did Aranda testimonially indicate that he had approved her sick leave, or that he had requested a doctor's certificate attesting to the short term nature of her illness. The parties stipulated that Moye last worked for the Company during the payroll period ending May 14, and that she never thereafter returned to work. So far as this record stands, no substitute was ever hired as a replace- ment for Moye. Although Moye's unit placement is not critical to a determination of the issues raised herein, I find that she should be excluded because she quit her work due to illness on May 14, had no reasonable expectancy of returning to her job, and was therefore not an employee of Respondent on the salient date of May 18. In sum, I conclude, in agreement with the General Counsel, that the appropriate production and maintenance unit consists of the nine employees claimed by him, and that the Union represented a total of eight of the nine employees therein on May 18. Accordingly, I find that, following the Union's demand for recognition on May 18, Respondent conducted a poll of its unit employees to determine the former's majority status and discovered that it represented a distinct majority. Having done so, I conclude that Respondent was legally bound by the results of the survey and was statutorily obligated to comply with the Union's demand for exclusive recognition and bargaining rights. 20 By failing and refusing in good faith to respond to this demand, I conclude that Respondent offended the provisions of Section 8(a)(5) of the Act and that a bargaining order should issue in this proceeding against it. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close and intimate relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening commerce and the free flow thereof. v. THE REMEDY I have found that Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them under Section 7 of the Act, and thereby violated Section 8(aXl) of the statute. I shall therefore order that Respondent cease and desist there- from. I have also found that Respondent has refused to recognize and bargain in good faith with the Union concerning the wages, hours, and other terms and condi- tions of employment for its employees in an appropriate unit and thereby violated Section 8(aX5) of the Act. To remedy this violation, I shall order that Respondent, upon request, bargain collectively with that labor organization in good faith over the above-defined subject matters and, if agreement is reached, reduce said agreement to writing and sign it. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record made in this case, I hereby make the following: CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By refusing to bargain in good faith with the Union, upon request, in an appropriate unit of its employees, Respondent has engaged in and is engaging in unfair labor practices within the scope of Section 8(a)5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: 20 Sullivan Electric Compan.v, 199 NLRB 809, 810 (1972). As the Board noted in that decision, an employer cannot "disclaim the results [of the poll ] simply because [he I finds them distasteful." 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 2 ' The Respondent, Direct Image Corporation of New York, a subsidiary of Direct Image Corporation, New York, New York, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Coercively interrogating employees concerning their membership in and sympathies for the Union. (b) Polling employees regarding their membership in or sympathies for the Union without observing the objective safeguards required by the National Labor Relations Board to assure the protection of rights guaranteed to employees under the National Labor Relations Act, as amended. (c) Refusing to bargain in good faith with the Union, upon request, regarding wages, hours, and other terms and conditions of employment for the employees in the following appropriate unit: All production and maintenance employees at Respon- dent's plant at 41 West 25th Street, New York, New York, excluding all professional employees, office clerical employees, watchmen, guards, and all supervi- sors as defined in the Act. 21 In the event no exceptions are filed as provided in 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. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which I deem is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the Union over wages, hours, and other terms and conditions of employment for the unit employees and, if agreement is reached, embody it in a signed, written contract. (b) Post at its plant in New York, New York, copies of the attached notice marked "Appendix."22 Copies of said notice, printed in both English and Spanish, on forms to be provided by the Regional Director for Region 2, after being duly signed by Respondent's authorized representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writing, within 20 days, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. 22 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." 374