Chem-Spray Filling Corp.

National Labor Relations Board - Board Decisions

Jun 17, 1969

176 N.L.R.B. 754 (N.L.R.B. 1969)

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