Arts & Crafts Distributors, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1961

132 N.L.R.B. 166 (N.L.R.B. 1961)

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 20, 1960, or thereafter. In the event employment is not then available for
Rackley and Hamilton, it is recommended that they be placed on a preferential list
with priority for hiring in accordance with nondiscriminatory standards heretofore
used by Respondent and thereafter offer them employment as such employment be-
comes available and before other persons are hired for such work.
Backpay is recommended to make whole the above employees against whom Re-
spondent has discriminated for any losses they may have suffered by reasons of the
discrimination. The period of the computation is to be from the date of discrimi-
nation to the date of the offer of reinstatement or reinstatement, whichever is earlier,
or placement on a preferential list, as the case may be.
In view of the fluctuating nature of Respondent's business and the effect thereof
upon the employment complement this factor is to be taken into consideration in the
backpay computation. Also, because there is evidence that Rackley, at least, was
attending school, such factor or related appropriate factors bearing on the discrimi-
natees' normal absence, if any, from the labor market, is to be taken into consider-
ation in computing backpay.
In summary, it is recommended, that Respondent make whole Rackley and Hamil-
ton for any losses they may have suffered because of the discrimination against them,
by payment to each a sum of money equal to the amount he normally would have
earned as wages from the date of the discrimination to the date of the offer of rein-
statement, or placement on a preferential list, as the case may be, less their respective
net earnings during said period The backpay is to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
1. By failing and refusing to rehire and reemploy Roy J. Rackley and John L.
Hamilton on or about June 20, 1960, as found in section III, hereinabove, Respondent.
has discriminated in regard to their hire, tenure, and conditions of employment,
thereby discouraging membership in a labor organization or in concerted activity,
and the exercise of rights guaranteed by the Act, and has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of
the Act.
2. By interrogating employees concerning their union or protected activity on
June 2, 1960, Respondent has interfered with the rights of its employees within the
meaning of Section 8(a) (1) of the Act.
3. By conditioning the grant of a wage increase and other benefits to its employees
on May 18 or 19, 1960, upon their agreement to abandon their union activity, Re-
spondent has interefered with the rights of its employees within the meaning of
Section 8 (a)( I) of the Act.
4. Respondent has not engaged in unfair labor practices in those respects de-
scribed in section III, above, wherein a recommendation of dismissal of the par-
ticular complaint allegations has been made.
[Recommendations omitted from publication.]
Arts & Crafts Distributors, Inc. and Warehouse Employees
Union Local 730, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. Case
No. 5-CA-1726. July 14, 1961
DECISION AND ORDER
On November 16, 1960, Trial Examiner Louis Plost issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. He also found that Respondent had not
engaged in certain other unfair labor practices as alleged in the com-
132 NLRB No. 14.
ARTS & CRAFTS DISTRIBUTORS, INC. 167
plaint. Thereafter, exceptions to the Intermediate Report were filed
by the Charging Party, the Respondent, and the General Counsel,
and supporting 'briefs were filed by the latter two parties.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only insofar as they are consistent
with this Decision and Order.
1. For the reasons stated in the Intermediate Report, we agree with
the Trial Examiner that the Respondent violated Section 8 (a) (1)
of the Act, by offering and granting changes in hours, wages, and
working conditions and by interrogating employees with respect to
their union membership, after the Union demanded recognition.
2. The Trial Examiner found that Respondent did not refuse to
bargain with the representative of a majority of its employees in
violation of Section 8 (a) (5) and (1) of the Act as alleged in the com-
plaint. We do not agree.
Respondent is a wholesale distributor of art supplies with an office
and warehouse at College Park, Maryland, under the supervision of
General Manager Albert Ellerin. On May 31, 1960, Henry G. Butler,
business manager of the Union, telephoned Ellerin. Butler stated
that the Union represented a majority of the truckdrivers and ware-
house employees and that his purpose in calling was to request recog-
nition as their bargaining representative. He also indicated it will-
ingness to establish the Union's majority status through a cardcheck
by a member of the clergy or other disinterested party. In his tes-
timony, Ellerin, without denying the content of this conversation
given by Butler, characterized it as a conversation in which Butler
was letting him know ". . . that there was going to be negotiations .. .
;between our company and the Teamsters. . . ." The record clearly
•establishes, and we find, that a demand for recognition as representa-
tive of the employees named was made on May 31, 1960.
Ellerin gave Butler no definite answer but promised to have his
attorney call Butler. Later in the day Ellerin advised Butler that he
had been unable to reach his attorney, and Butler then proceeded to
mail a petition and the showing-of=interest cards to the Regional
Office of the Board.' On June 2, 1960, Respondent's attorney did
call Butler and, after Butler reiterated the Union's claim as majority
representative and request for recognition, it meeting date was set
for the afternoon of June 6 to discuss'the matter.
'The petition , docketed the following morning, June 1, 1960, set forth a unit of "all
warehousemen and truck drivers" at the - Respondent 's warehouse "excluding clerical em-
+_ployees , watchmen , guards, and supervisors as defined in the Act"
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted, the unit described by the Union in its demand and in its:
petition was a warehousemen and truckdrivers unit. On May 31,.
Respondent had a total regular working complement of 21, including
Ellerin, and 2 other supervisors. Of the 18 nonsupervisory em-
ployees, 8 are office employees 2 and 10 are warehouse employees and
truckdrivers.3 In wholesale operations the Board commonly finds-
units of warehousemen and drivers appropriate and customarily ex-
cludes office clerical employees from such a unit if any party objects
to their inclusion, even in the face of a contrary bargaining history .4
There is no bargaining history here and the Union did not seek to
include office clerical employees. Accordingly, we find that a unit of
all warehouse employees and truckdrivers at Respondent's College
Park, Maryland, facility, excluding office clerical employees, watch-
men, guards, and all supervisors as defined in the Act, is appropriate.
At the time of the Union's demand for recognition, May 31, 1960,
in the unit hereinabove found appropriate, there were 10 employees,
7 of whom signed authorization cards on May 29, 1960. Thus, at the
time of the demand for recognition, the Union had been designated
bargaining representative by a clear majority of the employees in the
appropriate unit 5
On the morning of the scheduled meeting, June 6, Respondent's
president, Charles Ellerin, and General Manager Albert Ellerin called
eight or nine of the warehouse employees as a group into the office,
expressed displeasure with the employees' interest in the Union, solic-
ited their individual complaints, and announced changes in hours,
2 of these , six i i e admittedly office employees They are an invoice payment clerk,
switchboard operator , bookkeeping machine operator , invoice auditor , secretary, and
buyer A question concerning the unit placement of the following two was raised
Gordon Campbell is the assistant buyer . He takes the inventory cards for any line in
which buying is indicated into the warehouse , fills in the quantities on hand, and writes
up orders We find that the assistant buyer is an office employee . Walter Nieman, as
of May 31, was working on a special planning project to update and rearrange the
physical layout of the merchandise in the warehouse His regular duties are in the office
where he takes over for the office manager in the latter 's absence We find that he is an-
office employee who was only temporarily working in the warehouse on a managerial'
project on May 31.
3In addition to the two drivers there were three stock pickers , a receiving clerk , packer,
shipping clerk , and janitor-wrapper, all admittedly a part of the warehouse group. The
unit placement of Alice Bateman was questioned . She has a desk near that of the ware-
house manager and assists him by taking telephone orders , attaching packing slips to in-
voices, typing orders, and preparing orders for stock pickers to pull . We find that her
duties are those of a plant clerical and that she is appropriately a part of the warehouse
unit.
* See Schieffelin it Co , Wine it Spirit Import Division, 129 NLRB 956.
6It is immaterial that the eligibility list attached to a later consent-election agreement
contained 14 names, for a union's majority status in the, appropriate unit is -determined
as of the time of the , demand for recognition See United hatchery 4battoir, Inc, 123
NLRB 946, 956 . Moreover , we note that two of those named were employed after the
date of the demand and we have determined that the other two named were office em-
ployees and not appropriately a part of the unit. The exclusion of the latter two did not
alter the essential nature of the unit requested , nor did it affect the Union's majority
status therein as no authorizations cards bearing their names were submitted. Respond-
ent's challenge of the Union ' s majority status at the hearing on the basis of this eligibility
list is without merit.
ARTS & CRAFTS DISTRIBUTORS, INC. 169'
rates of pay, and other conditions of employment, as more fully set
forth in the Intermediate Report, which conduct has been found to
have violated Section 8 (a) (1) of the Act. That afternoon Respond-
ent met with the Union and, among other things, suggested that be-
cause of the small size of Respondent's operation a unit of all em-
ployees would be more appropriate than that requested by the Union.
When the Union indicated a willingness to accept such a unit if the
Respondent would sign a contract, Respondent then questioned the
Union's majority status in the enlarged unit. The Union reiterated
that it was seeking only the drivers and warehouse unit, and Respond-
ent's attorney stated he would hold a board of directors' meeting and
advise the Union as to whether recognition would be granted. Re-
spondent's board of directors met on June 9 and decided not to grant
the Union recognition without an election, and the Union was so
advised by Respondent's attorney.
At no time prior thereto did Respondent question the appropriate-
ness 8 or identity of the unit sought by the Union nor did it at any
time prior to June 9, question the Union's majority representative
status therein. On the contrary, Respondent demonstrated its clear
understanding as to which employees were involved by calling the
eight or nine drivers and warehouse employees into a meeting on the
morning of June 6, and in the context of other unlawful conduct,
expressing its disapproval of their interest in the Union.' Only after
it attempted to dissipate the Union's majority did Respondent state
its refusal to recognize the Union and demand that it establish its
majority status in an election.
While an employer may request a Board election as proof of a
union's majority status, the right to do so is not absolute. Where
insistence is motivated, not by any bona fide doubt as to the union's
majority status, but rather by a rejection of the collective-bargaining
principle, or a desire to gain time within which to undermine the
union, such insistence is unlawful.' All the relevant facts in this
case, including Respondent's unlawful conduct and the sequence of
events, demonstrate that its delay in responding to the Union's demand
for recognition and its insistence upon an election were motivated by
a desire to gain time in which to undermine the Union's majority
status.
9 Respondent , by suggesting a larger unit on June 6 did not express a doubt as to the
appropriateness of the unit requested by the Union Moreover , had the Respondent be-
lieved that only the larger unit was appropriate , it could rely upon this only at its peril
See United Butchers Abattoir, Inc, 123 NLRB 946, 957
° See Ivy Hill Lithograph Company, and Record Packaging Corporation , 121 NLRB
831, 835, where , because all coercive conduct was directed toward employees in the unit
sought, the Board held no good -faith doubt as to the composition of the unit existed
8Joy Silk Mills, Inc. , 85 NLRB 1263 , enfd. 195 F . 2d 732 (C.A.D.C) United Butchers
Abattoir, Inc., supra ; Laabs, Inc , 128 NLRB 374.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor does the pendency of a petition for certification or the execu-
tion of a consent-election , agreement 9 relieve the Respondent of its
duty to bargain in these circumstances . The filing of a petition does
not constitute an irrevocable commitment by the Union to establish
its representative status only through a representation proceeding.
Confronted as it was with Respondent 's unfair labor practices, de-
signed to destroy its majority in the unit and make a free election
impossible , the Union was forced to choose whether, in the face of
such conduct, it would proceed to establish its bargaining rights
through the representation or complaint proceeding . The Union
chose, before the scheduled election , to file the charges herein and
to withdraw its petition . A selection of forums is timely if made be-
fore the representation election is held, nor does it constitute abuse of
the Board 's processes.
In light of all the relevant facts, and upon the entire record, we
therefore conclude that the Union 's demand for recognition and bar-
gaining in an appropriate unit on May 31, 1960, imposed upon Re-
spondent a duty to bargain which Respondent may not evade by
-delaying its response , committing unfair labor practices , and then
belatedly questioning the Union 's majority status. In view of the
Respondent 's unfair labor practices, we find that its refusal to recog-
nize the Union on May 31 , 1960 , and at all times thereafter , was not
-based on any bona fide doubt as to the Union 's majority status, but
was intended to gain time in which to undermine the Union 's repre-
sentative status. Respondent therefore failed and refused to bargain
in good faith with the Union in violation of Section 8(a) (5) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices, we shall order that it cease and desist
-therefrom, and take certain affirmative action designed to effectuate
the policies of the Act.
It has been found that on May 31, 1960, and at all times thereafter,
the Union was and is the authorized and exclusive representative- of
Respondent's employees in an appropriate unit for the purpose of
collective bargaining, and that on and after May 31, 1960, the Re-
spondent refused to bargain with said representative in violation of
the Act. Accordingly, we shall direct the Respondent, upon request,
-to bargain with the Union as the authorized and exclusive representa-
tive of its employees in the appropriate unit.
9 Respondent's actions in consenting to an election do not rebut the indicla of bad faith
evidenced by its unlawful conduct. Traders Oil Company of Houston, 119 NLRB 746,
750, enfd 263 F 2d 835 ( C.A. 5), cert. denied 361 U.S. 829; Taylor- O'Brien Corporation,
112 NLRB 1 ; The Warren Company, Incorporated , 90 NLRB 689, footnote 3
ARTS & CRAFTS DISTRIBUTORS, INC.
ADDITIONAL CONCLUSIONS OF LAW
171
1. All warehouse employees and truckdrivers of Arts & Crafts,
Distributors, Inc., at its College Park, Maryland, warehouse, exclud-
ing office clerical employees, watchmen, guards, and all supervisors
as defined in the Act, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
2. Warehouse Employees Union Local 730, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, has been at all times since May 31, 1960, and now is the
exclusive representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
3. By failing and refusing at all times since May 31, 1960, to bar-
gain with Warehouse Employees Union Local 730, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representative of employees
in the appropriate unit, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a) (5)•
of the Act.
4. The aforesaid unfair labor practices affect commerce within the-
meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Arts & Crafts
Distributors, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Warehouse Employees
Union Local 730, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the exclusive bar-
gaining representative of all warehouse employees and truckdrivers
of Arts & Crafts Distributors, Inc., at its College Park, Maryland,
warehouse, excluding office clerical employees, watchmen, guards, and
all supervisors as defined in the Act.
(b) Offering to or granting any of its employees beneficial changes
in their hours, wages, or working conditions with the purpose of in-
fluencing their activities on behalf of or membership in any labor
organization, or interrogating any of its employees with respect to
their union membership for the same purpose.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form labor organizations, to join or assist Warehouse Em-
ployees- Union Local 730, International Brotherhood of Teamsters,
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
•effectuate the policies of the Act:
(a) Upon request, bargain collectively with Warehouse Employees
Union Local 730, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the exclusive repre-
sentative of all warehouse employees and truckdrivers in the afore-
said appropriate unit, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its plant at College Park, Maryland, copies of the
notice attached hereto marked "Appendix." 10 Copies of said notice,
to be furnished by the Regional Director of the Fifth Region, shall,
after being duly signed by the Respondent, be posted by it immedi-
ately upon receipt thereof, and be maintained by it for a period of
60 consecutive days thereafter, in conspicuous places, including all
-places where notices to employees are customarily posted. Reason-
-able steps shall be taken by Respondent to insure that such notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
11 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
-words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order"
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE wILL, upon request, bargain collectively in good faith with
Warehouse Employees Union Local 730, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of all employees in the
bargaining unit described below with respect to rates of pay,
ARTS & CRAFTS DISTRIBUTORS, INC. 173
hours of employment, and other conditions of employment, and,
if an understanding is reached, we will embody such understand-
ing in a signed contract. The bargaining unit is :
All warehouse employees and truckdrivers of Arts & Crafts
Distributors, Inc., at its College Park, Maryland, warehouse,
excluding office clerical employees, watchmen, guards, and
all supervisors as defined in the Act.
WE WILL NOT offer or grant any of our employees any beneficial
,changes in their hours, wages, or working conditions with the
purpose of influencing their activities on behalf of or member-
ship in any labor organization and we will not interrogate our
employees with respect to their membership in or activities on
behalf of any labor organization for the same purpose.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights to
:self-organization, to form labor organizations, to join or assist
Warehouse Employees Union, Local 730, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
All our employees are free to join or assist any labor organiza-
tion, and to engage in any self-organization or other concerted activ-
ities for the purpose of collective bargaining or other mutual aid or
protection or to refrain from such activities except to the extent that
such right is affected by an agreement made in conformity with Sec-
tion 8 (a) (3) of the Act.
ARTS & CRAFTS DISTRIBUTORS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by Warehouse Employees Union Local 730, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the Union, that Arts & Crafts Distributors, Inc., herein called the Re-
spondent , has been engaging in and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended, herein called the Act, the General Counsel of the National
Labor Relations Board, herein called the Board, on behalf of the Board, by the
Regional Director for the Fifth Region, issued a complaint and notice of hearing
pursuant to Section 10(b) of the Act and Section 102.15 of the Board's Rules and
Regulations, as amended.'
The Respondent duly filed an answer denying in effect that it had engaged in any
of the unfair labor practices alleged.
In substance the complaint alleged that since May 31, 1960, the Union repre-
sented an appropriate collective-bargaining unit of the Respondent's employees;
that the Respondent, since May 31, 1960, has refused to bargain collectively with
the Union as the exclusive representative of said appropriate unit, and has engaged
in other conduct violative of the Act, more particularly 8(a) (1) and (5) thereof.
Pursuant to notice, a hearing was held before Louis Plost, the duly designated Trial
Examiner, on September 19 and 20, 1960, at Washington, D.C.
At the hearing all parties were represented and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence bearing
on the issues, to argue orally on the record, and to file briefs and proposed findings
and conclusions. At the close of the hearing the Respondent moved to dismiss
the complaint, ruling was reserved, and is disposed of by the final findings in this
report. The parties argued orally on the record and reserved the right to file briefs.
On October 5, the Trial Examiner was informed in writing that no briefs would be
filed.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material herein, a corporation duly
organized and existing by virtue of the laws of the State of Maryland, having its
principal office and place of business at College Park, Maryland, where it is engaged
in the wholesale distribution of art supplies.
The Respondent, in the course and conduct of its business operations during the
preceding 12-month period, a representative period, transported and delivered more
than $25,000 in value of materials and supplies within the District of Columbia and
in commerce from and through the States of the United States, and purchased ma-
terials and supplies valued in excess of $50,000, which were shipped from places
outside the State of Maryland direct to the Respondent's plant at College Park,
Maryland.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Daniel A. Hennessey, organizer for the Union, testified that he began organizing
the Respondent's employees on May 17, 1960, holding a meeting on that day, a
second meeting on May 19, and a third meeting on May 29, which was attended
by seven of the Respondent's employees, all of whom signed application cards
for membership in the Union. However, on cross-examination Hennessey ad-
mitted that the original (May 17) meeting was merely a "contact" with employee
Carroll Scott at Scott's home; that on May 19, he met only with Scott and employee
Henry Gotschall, also at Scott's home; and that on May 29, the seven employees
who signed cards met with him at the Union's office.
Hennessey further testified he turned the seven cards over to Henry G. Butler,
the Union's secretary-treasurer and business manager, who in turn testified that
on May 31, 1960, he telephoned Albert Ellerin, the Respondent's manager at College
Park. Maryland, introducing himself and stating the purpose of his call. He further
testified:
3 A copy of the charge filed in this matter on June 21, 1960 , was served on Respondent
on or about June 22, 1960; the complaint was dated August 5. 1960
ARTS & CRAFTS DISTRIBUTORS, INC. 175
Mr. Ellerin professed a doubt as to labor law and his rights. I asked him if
he had an attorney. He stated he did. And I told him there were three methods
that we could obtain recognition by. One was through the National Labor
Relations Board, under the auspices thereof, and I explained it to him quite fully.
Two, by virtue of a card check where we could take a member of Clergy, a
disinterested party, to verify the application signatures against that of the payroll
cancelled checks.
And three, through economic recourse.
Q. What was his reply?
A. Mr. Ellerin did not give me a definite reply. In the absence of reaching
his attorney, Mr. Braiterman, he was to call Mr. Braiterman and he promised
to call me back and give me a definite answer.
According to Butler he did not remember a call by Ellerin, but "subsequently"
the Respondent's attorney did call him.
Albert Ellerin , the Respondent 's manager , with respect to Butler's telephone
call of May 31, testified:
There wasn't too much said during this telephone conversation, because I don't
think it was the type of thing where anyone was going to do any elaborate
discussion. It was merely a call to let me know that there was going to be a
matter to be dealt with between the Teamsters and Arts and Crafts Distributors.
Butler further testified that on the same day, May 31, before he again spoke to
anyone representing the Respondent he filed a petition for a Board determination of a
bargaining representative by an election among certain of the Respondent's em-
ployees; that he filed the petition by mail also forwarding the seven cards signed
by the Respondent's employees. The petition was received in the Board's Fifth
Regional Office on June 1, 1960, and was docketed as Case No. 5-RC-3144 (not
published in NLRB volumes). The seven cards were received at the same time.
These cards remained in the Fifth Region's file and were never seen by the Respond-
ent until produced at the instant hearing. It is clear that at the time the Union filed
the petition in Case No. 5-RC-3144 it had made no actual request for recognition
or offer proof of majority as the bargaining representative of any of the Respondent's
employees, however, the Union may take advantage of the rulings that the mere
filing of the petition sufficiently raised the question of representation with respect to
Case No. 5-RC-3144.
Sheldon Braiterman , the Respondent's attorney, testified credibly that he first spoke
to Butler on June 2 , at which time:
Mr. Butler told me that he represented what he believed to be a majority of
the men ; that they wanted to organize the College Park Warehouse; that he
wanted to speak for the men. And I told him at that time that I felt we should
set up a meeting to discuss the matter togeher.
He told me that he was sorry that he sent in a request , to the Labor Board,
a petition to the National Labor Relations Board. But I had not returned his
call earlier. But he would try and withdraw the petition so he would have an
opportunity to meet .2
Braiterman and Manager Ellerin met with Butler at the latter 's office on the after-
-noon of June 6, 1960 , however , prior to this meeting the Respondent first met with
some of its warehouse employees.
Employee Henry M. Gotschall testified that between 9:30 and 10 a.m., June 6,
"about eight or nine" of the warehouse employees were called into manager Ellerin's
'office; that both Manager Ellerin and Charles Ellerin , the Respondent's president,
spoke to the group; that "Well, he asked what were our gripes, our basic gripes that
we had to negotiate with the union, and why couldn't we-no, strike that one. He
wanted to know our basic gripes. He asked each one of us." That after the em-
ployees voiced their complaints, according to Gotschall-
Then he told us what he was going to do and what he had had in mind for a
period of time; that we were going to have a shorter work week We were
working nine, and he said it was going to be cut to eight.
Also that the pay would remain the same for the shorter period worked, and that