Edward Fields, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1963

141 N.L.R.B. 1182 (N.L.R.B. 1963)

1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT by soliciting employees to revoke their checkoff authorizations
or withdraw from membership in United Textile Workers of America, Local
120, AFL-CIO, or any other labor organization, or in any other similar or
related manner, interfere with, restrain, or coerce our employees in the exercise
of their rights guaranteed in Section 7 of the Act
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named union or any other labor organization.
NEWBERRY MILLS, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Tele-
phone No. 724-8356, if they have any questions concerning this notice or com-
pliance with its provisions.
Edward Fields, Incorporated and Amalgamated Union Local 55,
affiliated with District 5. Cage No. 2-Cpl--8705. April 10, 1963
DECISION AND ORDER
On January 21, 1963, Trial Examiner Robert E. Mullin 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 attached Inter-
mediate Report. Thereafter, the Respondent filed a motion for re-
hearing, the General Counsel opposed this motion and the General
Counsel and the Respondent filed exceptions to the Intermediate
Report with supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
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,2 including the Intermediate Report and the excep-
tions and briefs,' and hereby adopts the findings, conclusions, and
'We deny the Respondent's motion for rehearing based on new evidence bearing on
alleged bias of witness Richard Miller. As the Trial Examiner considered the possibility
of bias or prejudice in connection with Miller's testimony we find additional evidence on
this point to be cumulative
The Respondent's request for oral argument Is hereby denied as, in our opinion, the
record, including the Respondent's exceptions and brief, adequately presents the issues
and positions of the parties
The Intermediate Report shows the following error. On page 1190. "June 5" should be
changed to read "June 15 " We hereby correct this inadvertent error.
3 The Respondent's exceptions are directed to the status of Amalgamated Union Local 55,
affiliated with District 5, herein called Local 55, and to the credibility resolutions of the
141 NLRB No. 106.
EDWARD FIELDS, INCORPORATED 1133
recommendations of the Trial Examiner,' with the additions and
modifications as indicated herein.
Upon the basis of the foregoing and the entire record in this case,
we renumber the Trial Examiner's conclusions of law numbers "5"
and "6" as numbers "6" and, "7" and make the following additional:
CONCLUSION OF L.\w
"5. (a) By unilaterally promising to grant its employees July 4 as
an additional paid holiday, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
"(b) By threatening to deprive its employees of their accrued vaca-
tion rights, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (1) of the Act."
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner, with the following modifications:
1. In paragraph 1(e) change "reason; and" to read "reason."
2. Renumber paragraph 1(f) as paragraph 1(h) and add the fol-
lowing new paragraphs :
"(f) Unilaterally promising to grant its employees July 4 as an
additional paid holiday.
"(g) Threatening to deprive its employees of accrued vacation
rights." s
Trial Examiner. We find these exceptions to be without merit We approve of the dis-
position made by the Trial Examiner of the status of Local 55 Alto Plastics Manu-
facturing Corporation, 136 NLRB 850 . We will not overrule the Trial Examiner' s resolu-
tions as to credibility , unless a clear preponderance of all relevant evidence convinces us
that they are incorrect . Upon the entire record, such conclusion is not warranted here.
Standard Dry Wall Products, 91 NLRB 544 , enfd . 188 F. 2d 362 (CA 3)
We find that the General Counsel 's exceptions , in part, have merit and accordingly we
find that Respondent 's unilateral promise to grant July 4 as an additional paid holiday,
and its threat to deprive its employees of accrued vacation rights , constitute a promise
of benefit and threat of reprisal , respectively, and that each is an independent violation of
Section 8(a) (1) of the Act. The remainder of the General Counsel 's exceptions are
merely cumulative or else are not supported by the record.
4 Member Leedom does not adopt the Trial Examiner's statement that "a bargaining
order . . . Is tantamount to certification ," and deems it unnecessary in the absence of
evidence that the Union is not fulfilling its bargaining obligation to decide what action
would be appropriate in the event it did not fulfill that obligation.
5In conformity with the changes in the Order , the second indented paragraph of the
notice shall be changed to read as follows:
Wig WILL NOT ask any employee to report about union organizational activities be-
cause we would like to keep the Union out or for any other reason ; participate in the
circularization of antiunion petitions among employees to induce their withdrawal
from the aforesaid Union ; unilaterally change the working conditions of our em-
ployees or by any other unlawful means endeavor to persuade them 'to abandon their
membership in the Union ; coercively , or otherwise unlawfully, interrogate our em-
ployees concerning their union activities or sympathies ; unilaterally promise to grant
our employees July 4 as an additional paid holiday ; threaten to deprive our employees
of accrued vacation rights; or refuse to bargain collectively with the Union as the
exclusive representative of the employees in the bargaining unit described above.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Relations
Act of 1947, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, was
heard in New York City, on September 24 to 28, 1962, pursuant to due notice to
all parties. The complaint, issued by the General Counsel of the National Labor
Relations Board, and based on charges duly filed and served, alleged that the Re-
spondent had engaged in unfair labor practices proscribed by Section 8(a)(1) and
(5) of the Act. In its answer, duly filed, the Respondent conceded that it was
engaged in commerce within the meaning of the Act, but it denied the commission
of any unfair labor practices.
At the hearing all parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence and to argue orally.
Oral argument was had by the General Counsel. The Respondent waived oral
argument but submitted an able and comprehensive brief on the facts and the legal
issues involved. A brief was likewise submitted by the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent herein is a New York corporation with its principal office and
plant in the Borough of Queens, city and State of New York, where it is engaged
in the manufacture, sale, and distribution of carpets, window blinds, and related
products. During the year ending May 31, 1962, a representative period, the Re-
spondent purchased wool and other goods and materials valued in excess of $50,000,
which were shipped from other States, as well as from foreign countries, to the plant
in New York. During that same period, the Respondent sold and shipped finished
products, valued in excess of $50,000, to points outside the State of New York.
On the foregoing facts, the Respondent concedes, and I find, that Edward Fields,
Incorporated, is engaged in commerce within the meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
At the outset of the hearing, the Respondent raised the question as to whether the
Charging Party, Amalgamated Union Local 55, affiliated with District 5, herein
called Amalgamated or Local 55, is a labor organization within the meaning of
the Act.
Bert Fisher, who identified himself as a business agent and organizer for Amal-
gamated, testified that this organization is engaged in collective bargaining on behalf
of employees, that it negotiates contracts with employers covering wages, hours, and
working conditions, that it has collective-bargaining agreements with three named
employers, and that it has elections at which officers are elected. He further testi-
fied that one Benjamin Ross is the secretary-treasurer and general manager and that
District 5 is the "international" organization for Amalgamated Union Local 55.
The definition of a labor organization in Section 2(5) of the Act is exceedingly
broad. In order to qualify it is necessary only that the organization be one in
which employees participate and that it exist for the purpose, in whole or in part, of
dealing with employers concerning wages, hours, and other terms and conditions of
employment. On the basis of the evidence in this record it appears that the Charging
Party qualifies as a labor organization under the Act and I so find. William I
Burns International Detective Agency, Inc., 138 NLRB 449.
Counsel for the Respondent, however, contends that Amalgamated is not a true
union, that it is a racketeer union under the domination of Ross and that it is not
entitled to use the Board's processes. In support of this contention, the Respondent
asked that the Examiner take official notice of a decision of the New York State
Labor Relations Board in Aly's Hat Box, 47 LRRM 1197 (1961), and of a court
decision in that State, Yellin v. Schaefer, 143 NYLJ No. 124, page 7, 46 LRRM
2723 (1960). The Respondent also offered in evidence a release that was issued
on January 23, 1961, by Mr. Jay Kramer, chairman of the New York State Labor
Relations Board. This memorandum was published at the time the New York State
Board issued its decision in Aly's Hat Box, 47 LRRM 1197, a representation case in
which that agency ruled off the ballot a local union affiliated with District 5. In
this release Chairman Kramer referred, as follows, to the unions affiliated with Dis-
trict 5.
EDWARD FIELDS, INCORPORATED 1185
These ten outfits are effectively headed by Benjamin Ross, of whom we have
found it "necessary as a public duty" to record certain events at a formal hear-
ing so that employees in this State be "given the facts to undertake a meaningful
and understanding choice in representation cases," when they are asked to
designate Ross as a collective bargaining representative. We do so because
we believe that "democracy deserves, indeed demands, no less of this agency."
With reference to Ross' criminal record, Chairman Kramer stated:
The Board's decision notes that testimony in the record shows that Ross was
convicted in 1933 of a misdemeanor for stealing magazines; in 1935 of robbery
in the second degree; in 1947 of illegal possession of drugs and in 1955 of
assault. The Board censured, in its decision, current tactics of "muscle and
vituperation" engaged in by Ross at its formal hearings and condemned his
"misconduct" as "thoroughly reprehensible and clearly contumacious."
The Respondent has raised serious allegations as to the management of the
internal affairs of the Charging Party. This is an issue which the Board considered
in a recent case, Alto Plastics Manufacturing Corporation, 136 NLRB 850, wherein
it concluded that, notwithstanding evidence of improper or corrupt practices in the
administration of a union's affairs, Congress did not authorize the Board to with-
hold its processes from such an organization. Because of their relevance to the
question at issue I shall set forth at some length the Board's conclusions in that
case (ibid.):
In Titles I through VI of the Labor-Management Reporting and Disclosure Act
of 1959, Congress expressly dealt with such matters. It is particularly signifi-
cant that the remedies provided in the LMRDA were given to individual
employees directly, and to the public through the intervention of the Secretary
of Labor or the Department of Justice. The theory underlying this type of
remedial legislation is not to "illegalize" the organization itself, but to afford
protection to all parties concerned by creating specific federal rights and remedies
whereby the activities of the organization and its officers and agents are regu-
lated and subjected to judicial review in the vindication of those rights. Had
Congress desired to strike directly at the organization itself, Congress would
have said so. . Congress provided certain remedies in the LMRDA for
parties aggrieved as a result of unlawful activities in the conduct of internal
union affairs. It would be manifestly improper for the Board to fashion a
remedy under the National Labor Relations Act which Congress did not see fit
to authorize. There is not the slightest indication in the LMRDA that Congress
intended to place the regulation of internal union affairs within the Board's
province. Nor did Congress, in amending the Act, seek to amend it in this
respect. On the contrary, Section 603(b) of the LMRDA provides: ". . . nor
shall anything contained in [Titles I thru VI] . . of this Act be construed
to confer any rights, privileges, immunities, or defenses upon employers, or
to impair or otherwise affect the rights of any person under the National
Labor Relations Act, as amended." [Emphasis supplied.] Thus Congress
gave very explicit expression in the law to its intent that the Board should not
withhold its procedures or remedies where unions or employers, or their officers
or agents, breached the obligations laid down in Titles I through VI of the
LMRDA.
In view of the Board 's position , as set forth in the above decision , the Respondent's
contention with respect to the Charging Party must be rejected.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and sequence of events
Late in May 1962, Amalgamated initiated an organizational campaign among the
employees of the Respondent. In a letter dated June 5, Amalgamated wrote the
Respondent that it had been designated by a "majority of your employees in all
branches" and that it desired a meeting for the purpose of negotiating a contract.
On June 11, Amalgamated filed a petition for an election at the factory of "Edward
Fields, Inc., and subsidiaries." On June 13, representatives of the Respondent and
the Charging Party held their first conference. On June 19, the same parties met
with a representative of the Board's Regional Office to discuss the terms of a consent
election. No agreement was reached, however, because the Company wanted the
election before the plant closed for the summer vacation and Amalgamated wanted
the election deferred until later. That same day, Local 55 withdrew its representa-
tion petition and filed charges alleging that during the month of June 1962 the
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had engaged in various acts and conduct violative of Section 8(a)(1)
and (5) of the Act. It is upon these charges that the instant complaint is based
B. The evidence as to alleged violations of Section 8(a) (1) of the Act; findings
and conclusions with respect thereto
During the latter part of May and the first week of June 1962, Bert Fisher and
Samuel Zakman, organizers for Amalgamated, met with employees of the Respond-
ent on various occasions and distributed authorization cards among them. A num-
ber of the employees signed these cards and mailed them to the office of the Charging
Party. On June 5, Zakman dispatched the following letter to Edward Fields, presi-
dent of the Respondent:
This is to inform you that the majority of your employees in all branches
of your company have designated Amalgamated Union Local 55, Affiliated
with District 5 as their agent for the purpose of collective bargaining.
We would appreciate a meeting at your office on Monday, June 11, 1962, at
10:00 A.M. for the purpose of negotiating a contract. Kindly respond and
let us know if the time and hour are convenient for you.
This letter was delivered sometime on the afternoon of June 6.1 On the following
day, Elliott Fields, vice president of the Respondent, replied to this letter as follows:
We acknowledge receipt June 7th, of your letter dated June 5, 1962.
Until we received your letter, we were not aware of your claim that you
represent our employees.
We will be glad to meet with you for the purpose of determining whether
your union represents a majority of our employees, and to determine whether
you have bargaining rights in their behalf.
The date you suggest for a meeting, June 11, 1962, is not convenient because
of the short notice we have received. We will be able to meet your representa-
tives at our factory office at the above address on June 13, 1962, at 10:00 A.M.
for the above described purpose.
Please let us know whether that date and time is acceptable to you.
On June 11, Amalgamated filed a representation petition in Case No. 2-RC-12126
in which it named the employer as "Edward Fields, Inc. and subsidiaries" and
described as appropriate a unit which included production, maintenance, shipping
and receiving employees and excluded office clericals, professionals, guards, watch-
men, and supervisors.
On about June 8,2 from 12 to 15 of the employees met at the "Hideout," a
tavern near the plant. According to Jay Williams, one of their number, the or-
ganizers for Local 55 had suggested that the employees meet at this time to select
a committee which would accompany the union representatives to the meeting that
had been requested with the Respondent's officials. Although there was no repre-
sentative of Amalgamated present, the employees discussed their various grievances
and designated Alvester Baker, Jay Williams, William Bernardini, and James Rainone
as their committee.
On the morning of June 11, the employees learned that there would be no meet-
ing between the company and union representatives that day. According to Joseph
Militello, one of the employees, Fisher notified them to this effect by standing out-
side an open window at the plant and calling out this announcement. At some
time later that morning, Baker and Jones discussed with each other the advisability
of having the employee committee meet separately with the management Earlier,
on about June 7,3 Elliott Fields had posted a notice on the plant bulletin board
which read as follows:
1 The Respondent conceded that the letter was received on or about June 7 The record,
however, contains the postal return receipt for the Union's registered letter According to
this document, the letter arrived at the post office in Flushing, New York, on the after-
noon of June 6 and was delivered to the Respondent's plant that same day
2 The finding as to this date is based on the testimony of Jay Williams, Elroy Jones,
and James Rainone.
S There was much confusion in the testimony as to when this notice was posted Elliott
Fields testified that he believed that it was put up about June 1 at the suggestion of
Richard Miller, the plant manager . Miller, however, testified that it was posted about
June 7 or 8. The employees gave varying dates. Tony Valos thought he first saw it
about June 7 or 8, Jay Williams recalled only that he saw it "early" in June, Charles Cox
and Rainone thought it was shortly after June 7, Joseph Militello and James Zanata
testified that it was after June 12.
EDWARD FIELDS, INCORPORATED
NOTICE
1187
TO WHOM IT MAY CONCERN:
IF THERE IS ANYONE THAT WOULD LIKE TO DISCUSS ANY-
THING ABOUT THE UNION SITUATION WITH ME, THEY MAY DO
SO IN PRIVACY.
IF THERE IS ANYTHING YOU DO NOT UNDERSTAND, OR ANY
QUESTIONS TO ASK, PLEASE FEEL FREE TO ASK ME
ELLIOTT FIELDS
Plant Manager Miller testified that at some time on the morning of June 11, Tony
Vaios told him that he and three other employees, Jay Williams, James Rainone,
and Elroy Jones would like to see Elliott Fields on behalf of the men 4 Miller
promised to take the matter up with Fields. Vaios testified that he told Miller at
the time "that if we can get something without the Union, it would be better for
us." Shortly thereafter Miller brought word that Fields would meet with the em-
ployee committee.
In addition to the four employees mentioned above, the meeting was attended by
Elliott Fields, Miller, and Christine Gifford, secretary to Fields. It began early that
afternoon and lasted throughout the rest of the day. The employees present were
paid for the time spent at the meeting .5 Fields testified that at the outset of the
conference one of the committee members, either Williams or Rainone, stated "Mr.
Fields, we don't want a union and we. are here representing the boys to discuss other
points of the company policies ... we just as soon negotiate with you and settle
all these problems the best way." Miller testified that he brought the committee
into Fields' office and told the latter that the men wanted to know what he thought
about the Union and what assurance they could have as to their future with the
Company. According to Miller, at this point, Rainone told Fields that although
"he didn't particularly want the Union ... he didn't see any alternative if he didn't
get any assurances now Thereafter, Fields and the employee committee
conducted a lengthy review of almost every aspect of their current working conditions
One of the first subjects discussed was sick leave. At that time the employees were
getting 5 days of such leave each year, but could not accumulate it from year to
year. Williams told Fields that he felt the Company owed him more than the
amount with which he was credited, and that the employees should have an op-
portunity to accumulate it for more than 1 year. Fields told the committee that
the Company could not give them more sick leave than they were getting, but that
he would permit them to accumulate it for a 2-year period and that this policy
would appear in a booklet which he planned to prepare for the employees and which
would contain all of the Company's policies.
Rainone asked about a more liberal hospitalization plan and stated that the Union
promised that it would try to get them such insurance free. Fields told the com-
mittee that for several months Mr. Maurice Feldman, counsel for the Respondent,
had been endeavoring to get a better hospitalization insurance contract. Tony
Vaios testified that during this discussion Fields told them that the Company could
secure a better plan than the Union could offer and that it would not cost the em-
ployees anything.
Some of the committee members complained about a current practice of the
Company in not posting the vacation schedule until the late spring or early sum-
mer. They asked that this schedule be announced at the beginning of the year
instead. Elliott Fields testified that he told the employees that he approved of
their suggestion and that it would be followed. At the time the employees with
less than 1 year with the Company received a 1 week's vacation and for each sub-
sequent year of employment they were credited with an additional day of vacation.
Miller testified that Fields told the committee at this meeting that if a union came in
the employees might lose their accrued vacation rights, since the computation of
vacation time would start with the signing of the contract. Fields denied that he
told the men that they would lose any vacation time with the advent of a union.
According to Fields, he merely told the men that if a union came to the plant their
vacations would be a matter for negotiation between it and the Company. However,
* Bernardini, who had been designated by the employees as a committee member at the
meeting several days before, was absent from the plant on this particular day Jones
acted in his stead.
5 Elliott Fields testified that the meeting continued for about 4 hours ; according to
Elroy Jones it did not adjourn until after 7 p.m
708-006-64-vol. 141-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elroy Jones, one of the committee members, corroborated Miller's version of the
discussion on this subject. I credit his testimony.
Rainone asked if the Company would ever have a pension plan for the employees.
Fields told the group that the Company had considered the matter but that it was
very costly. He then suggested to the committee that rather than pay union dues and
initiation fees they could put the same amount of money in a fund for which the
Company would supply the bookkeeping and legal services. He further suggested
that if this were done the Company might be able to match the contributions of
the men to the fund and that the policy in this connection would appear in the
forthcoming booklet which he had mentioned earlier.
At sometime during the meeting, Jones asked Fields if the employees would
receive pay for the July 4th holiday. Fields stated that they would. Miller testified
that prior to the meeting when employees had asked him this question he had been
unable to tell them because the management had never given him the answer. At
this same time the employees asked for more holidays. Fields did not accede to this
general request, but he did tell them that they could get off a half day on Good
Friday and that a reference to this effect would also appear in the booklet. He
further agreed that on election days the plant would not open until 10 a.m. in order
that employees have an opportunity to vote.
Williams introduced the matter of a pay raise by stating that the Union promised
that it would try to get it for them. In response to questions on this subject, Fields
told the committee that the Company was financially unable to grant any increases
at that time. He announced, however, that the booklet would set forth a company
policy whereby twice a year raises would be given to those employees who deserved
them and that at the same time any employees who did not receive a raise would be
given an opportunity to discuss the matter with him.
Fields made numerous references to changes which would result if a union orga-
nized the plant. Miller testified that the vice president told the men that, whereas at
the present time the Company kept the employees at work even during slack periods,
if the plant was organized he would only need to pick certain men to stay on the pay-
roll when business was slow. According to Vaios, Fields also told them that the cur-
rent practice of providing free coffee and cake and a lenient policy on smoking would
all be lost if the Union succeeded in organizing the men. Miller likewise testified
that Fields told them that his practice of freely consulting with them would also have
to be discontinued. Miller and Vaios further testified that at this meeting Fields
suggested that the best way to illustrate to the men what they would lose if a union
arrived would be to have a "union day" at which time everyone would be deprived
during an entire shift of all privileges which they would forfeit with the advent of a
union.6 Near the end of this discussion, Rainone asked Fields what the obligations
were as to those who had signed union cards. Mr. Fields testified at the hearing
that in response to this question, "I told him that by signing those cards they have
9 The foregoing findings in this paragraph are based on the credited testimony of Valos
and Miller This testimony was not denied by Mr . Fields.
Richard Miller was an employee of the Respondent for approximately 12 years For
much of that time he was the plant manager. In August 1962 he was discharged This
termination is not an issue in the present proceeding , but the element of bias or prejudice
which this might have injected into Miller's testimony has been considered In this con-
nection it is significant that most of his testimony was either undenied or corroborated
by that of other witnesses and in large part by the testimony of Elliott Fields
In one significant respect there was a sharp conflict between the testimony of iMiller
and Elliott Fields. This arose in connection with certain background evidence which the
General Counsel offered. Thus, Miller testified that some 5 or 6 years earlier he was in
charge of the plant when another union attempted to organize the employees At the
time, Elliott Fields was away on a vacation cruise According to Miller, upon contacting
the latter by telephone, Fields ordered him to fire an employee named Scandizzo, the
apparent leader of the unionization campaign Miller testified that the following day he
terminated Scandizzo and that although the union members subsequently went on strike,
the Respondent never recognized the Union Elliott Fields conceded that he had had a
telephone conversation with Miller about the labor dispute at the time, but he denied that
lie had ever ordered the discharge of Scandizzo. The Company's payroll records were later
offered by the Respondent. These tended to corroborate Fields. Thus, they disclosed that
Scandizzo was not at work during the week ending February 27, the time of the strike,
but that he returned to duty the following week and remained in the Respondent's employ
until April 3, 1956. According to Fields, Scandizzo voluntarily quit on about the latter
date to work for a competitor. Although as to most of his testimony I have found Miller
to be a credible witness, as to this incident it is my conclusion that Elliott Fields had the
more accurate recollection of events as they occurred.
EDWARD FIELDS, INCORPORATED 1189
authorized the Union that they are their exclusive representative and I know of
nothing . . . except maybe if they got a petition up amongst the men themselves,
then this may help to revoke their signatures."
At the end of their conference the committee asked Fields for permission to have
a meeting on the following day at which they could tell the rest of the employees
about the Company's attitude toward the Union and determine the preferences of
the men. Fields gave them permission to hold such a meeting at the plant and told
them that "if the men did not want a union, he would like them all to sign a
petition saying that they do not want a union." 7 According to Elroy Jones, Fields
also told them "If everybody signed it, he could turn it in, and that way we could
eliminate the union altogether." 8
On the morning of June 12 a meeting for all the hourly paid employees was held at
the plant. It was held on company time and property and with the official sanction
of the Respondent. Miller, who was then plant manager, testified that he "told
all the men there is going to be a meeting in the back of the building . . . . Who
called the meeting, I guess I did."
During the early portion of this meeting, the committee of employees reported
to the men on all the subjects that had been discussed with Fields and Miller the
day before. After they had completed their report, Elliott Fields came to the meet-
ing at the request of the employees to answer questions. While there, Fields told
them, in response to their questions, that, in the future, vacation schedules for the
following year would be posted at Christmas time, that on election day the shop
would not open until 10 a in. so that employees would have time to vote, and that
everything he had discussed with the committee the day before would appear in the
forthcoming booklet on company policy which very employee would get. Fields
also told the employees if a union came in, the Company would have to eliminate
the current practice of providing free uniforms, free coffee, and doughnuts and insti-
tute a more stringent policy as to their work practices.
At the beginning of the meeting the committee had asked all those present who
had signed union cards to raise their hands. A majority did so. Jay Williams
testified that Fields told them while at the meeting that "the signing of the petition
would absolve the men from the obligation of the cards." According to Alvester
Baker, another employee, Fields told them "that if we voted the union down, he
would try to get those cards revoked." When Fields left the meeting the committee
asked for another show of hands as to the number who still preferred the Union
and this time a majority voted against it.
Immediately after this meeting, Elroy Jones went to Fields to solicit his help in
preparing a petition. According to Fields, "I called for Miss Gifford [his secretary]
to come in and I dictated the petition to her. And Elroy took it." This document
read as follows:
WE, THE UNDERSIGNED EMPLOYEES OF EDWARD FIELDS, INCOR-
PORATED AND ALL ITS BRANCHES, DO HEREBY PETITION AGAINST
UNIONIZING. THIS IS IN RESULT OF A MEETING HELD JUNE 12,
1962, AND WITHOUT PERSUASION OF ANY KIND BY MANAGEMENT.9
After securing the document from Miss Gifford, Jones told Plant Manager Miller
that Fields wanted him to circulate the petition among the employees and the latter
gave his permission to do so immediately. Thereafter Jones went to each of the
employees on duty that day and secured his signature to the petition. Several of
the employees testified as to the circumstances in which they were asked to sign.
Charles Cox was one of these. According to Cox, Jones told him on this occasion,
"this is for me to sign. This is the agreement that we had at the conclusion of the
meeting." Jones secured the signatures of 24 employees on the document and then
returned it to Elliott Fields.
7 The quotation is from the credited testimony of Miller. It was not denied by Elliott
Fields
8 This testimony by Jones was undenied . Jones also testified that he believed that at
one point Fields stated that the Company might have to have its carpets made overseas
There was other evidence that, in response to a question from Jay Williams as to whether
there was substance to certain rumors that the Company was moving, Fields stated that
lie hoped to find another building for the plant which would be more suitable than its
present location. Jones was a generally credible witness but his recollection on this point
was not persuasive and I do not find that at this meeting Fields made any comment which
could be fairly construed as a threat to move the plant overseas or have its products made
elsewhere in the event a union organized the employees
9 Beneath this paragraph the name of each hourly paid employee was typed and to the
right of each name a line was entered for the employee's signature.
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 13, representatives of the Company and Local 55 met at the time which
Fields had suggested in his response to the Union 's original request for a meeting
Present for the Company were Edward and Elliott Fields and Attorney Maurice Feld-
man. Bert Fisher and Benjamin Ross represented Local 55
Only Fisher testified in support of the General Counsel's case. Ross did not ap-
pear and no explanation was offered by the General Counsel or the Charging Party
for his nonappearance. According to Fisher, at their meeting, Ross told the com-
pany representatives that the Amalgamated represented a majority of the employees
and that Elliott Fields thereupon stated that he was not aware that his employees
wanted a union or that a majority of them desired a union . Fisher further testified
that during the course of the conference, he, or Ross, showed the company officials a
sample contract which the Amalgamated had negotiated, and that at the conclusion
of the meeting Attorney Feldman promised to call Ross on June 5 as to whether the
Company would be ready to negotiate a contract. As to this latter point, however,
on cross-examination Fisher conceded that all Mr. Feldman promised was that
after further consideration, by June 15, the Company might negotiate a contract.
Elliott Fields denied that the company representatives made any commitment to
Ross that they would call on this latter date. This denial is credited.
Fisher gave no testimony as to the length of this meeting. According to Edward
Fields it lasted for several hours with much of the time given over to speeches by
Ross in which he set out in vast detail his theories on collective bargaining and his
efforts on behalf of the workingman. On June 11 the Union had filed a representa-
tion petition with the Board. Edward Fields testified that Mr. Feldman told Ross
that the Company would not negotiate or do anything with Amalgamated until the
National Labor Relations Board held an election and a majority of the employees
voted for a union . Elliott Fields testified that in response to a question about
majority, Ross told him "I have enough cards for a vote."
Fisher also testified that at one point in the meeting the union representatives told
the management officials that a committee of employees was supposed to be present,
but that Elliott Fields brushed aside this proposal with the statement that this
was unnecessary since nothing would be done that day about negotiating a contract.
Both Edward and Elliott Fields denied having made such a statement . Fisher con-
ceded that at the end of the meeting Elliott Fields gave him and Ross permission to
go out into the factory and discuss the results of the conference with the employees
Fisher's testimony that during the conference the Union asked and was denied
permission to have an employee committee present was not convincing. At the
hearing it was obvious that Fisher's power of recall left much to be desired. Al-
though he claimed to have a definite recollection of the events which took place
at the meeting with the Employer and as to such critical issues as to whether he and
Ross offered to prove a union majority, when questioned on cross-examination as
to his organizational efforts, Fisher could not recall the name of a single employee
whom he had contacted or with whom he had talked throughout the organizational
campaign or at any time thereafter. It was apparent that after having secured the
authorization cards from the employees, the union organizers made little effort to
stay in touch with the men. On June 11, Fisher stood on the sidewalk outside the
plant and called through an open window to announce that the Union would have no
meeting with the Company that day. While organizing the employees he had en-
deavored to meet them at the plant exits during their recess periods. He gave no
explanation as to why at this time it was impossible similarly to contact any individ-
ual employees or the committee which he had proposed that they designate. Sub-
sequent to the time when the union organizers felt they had a majority at the plant
there was nothing about their evident behavior to suggest that they made any effort
to insure attendance by the rank and file at a bargaining session with the management.
For this reason I do not credit Fisher's testimony that he and Ross sought, and were
denied , permission to have an employee committee present at the conference on
June 13.
The only other meeting between the representatives of Company and Union was
held on June 19 at the Regional Office of the Board at which time the parties con-
ferred as to the possibility of a consent election. Agreement was reached at that
time as to the appropriate unit and the names of those employees within this group-
ing. When, however, a mutually satisfactory date for the election could not be
agreed upon , the Union withdrew its representation petition and filed the unfair
labor practice charges in the present case.
There was testimony that during the first 2 weeks of June both Elliott and Edward
Fields engaged in unlawful interrogation of the employees as to their union activities
To the evidence in that connection we will now turn.
EDWARD FIELDS, INCORPORATED 1191
Miller testified that on about June 7, William Bernardini came to him and Elliott
Fields to request a wage increase and that during the ensuing conversation Fields
told the employee that this would be impossible until the "union situation was all
settled." According to Miller, at this point, Fields asked the employee what he
thought of the Union and Bernardini replied that he not only was not interested,
but that he was not going to attend a union meeting for the employees which was
to be held that evening at a nearby restaurant. Miller testified that when Bernardini
made this comment Fields asked that he attend the meeting for the purpose of
collecting information and that he report back the following day. According to
Miller, the next day Bernardini reported to him that the night before the employees
sought to select three to four men who would sit with the Union in bargaining with
the management. Miller testified that he relayed this information to Fields, but
that the latter told him when he did so that he (Fields) already knew about it.
The foregoing testimony was denied by Elliott Fields, who testified that he never
asked any employee to spy on the Union. It was also denied, in part, by Bernardini,
who was called as a witness by the Respondent. The latter testified that he had
asked for a raise at sometime late in June after he returned from a vacation and that
at that time Fields asked him only whether he had signed a union card. Bernardini's
testimony, however, was contradicted by a preheating affidavit in which he averred
that prior to his vacation he discussed the Union with Fields for from 2 to 3 hours
in the company official's office. Apart from the obvious contradictions between his
testimony and his affidavit, Bernardini, while on the stand, was obviously less than
frank. I do not credit his testimony. Nor do I credit the denials of Mr. Fields in
this connection. Miller's situation has been discussed earlier herein. In this in-
stance, it is my conclusion, and I find, that his testimony represented a more accurate
recollection of what occurred and I credit it.
James Zanata testified that about May 30, Elliott Fields called him into his office
to ask whether he had been approached by the Union. When Zanata replied in
the affirmative and further indicated that he was interested in the organization, Fields
told him that he would not like to see a union in the factory. This testimony was
undenied
Joseph Militello testified that shortly after the employee meeting at the Hideout
Restaurant, Elliott Fields called him into his office to ask whether he or anyone else
had signed a card. According to Militello, after answering this question in the
negative and telling Fields he did not know whether his fellow employees had signed
authorizations, Fields suggested that he "mingle in among the crowd . to find
out what's going on with the union" and report back. Fields denied having made
any such suggestion to Militello. The latter was a credible witness as to this issue.
Upon a consideration of Fields' denial in this instance, and the testimony of
Militello, it is my conclusion, and I find, that the incident occurred substantially as
Militello testified.to
Militello also testified that he had a conversation with Edward Fields shortly after
June 12 in which the Respondent's president told him that if the Union organized
the plant the Company would have its carpeting made in Japan. Fields testified
that he had had a conversation with this employee in one instance and under the
circumstances to which Militello testified. He differed, however, as to the date
of this discussion as well as the details. According to Edward Fields, he assured
the employee on this occasion that there was no substance to the rumors that the
Company might transfer its business to Japan. Although I am satisfied that Militello
was earnestly endeavoring to recall this conversation, his testimony as to the dis-
cussion with Edward Fields was far less convincing than that as to his meeting with
Elliott Fields which I have credited. The plant president, in this instance, on the
other hand, was the more credible and I find that the conversation took place sub-
stantially as he related it at the hearing.
Concluding Findings
On the findings set out above it is apparent that at the outset of the membership
campaign by Amalgamated, the Respondent actively intervened to thwart the em-
ployee desire for outside representation in collective bargaining. Elliott Fields
learned early that the employees were interested in a union. According to his own
testimony, he first gained this knowledge in May. Thereafter, he asked that
IU Two other employees, Charles Cox and Thomas Ingargiola, testified as to conversa-
tions which they had had with Elliott Fields about their union activities. In both in-
stances, however, it was apparent that they had gone to discuss the matter with the plant
official of their own volition and , in so doing, volunteered the information that they had
signed an authorization card.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Bernardini attend an employee meeting and report back to him and that
Joseph Militello mingle with the other employees to learn, on Fields' behalf, what
they were thinking about the Union. During this same period Fields questioned
both Militello and James Zanata as to whether they had been in contact with the
Union or had signed a card. Fields' suggestion that employees engage in surveillance
of their associates' organizational activities and his interrogation of Militello and
Zanata as to their union interests and activities was violative of Section 8(a)(1) of
the Act and I so find.
After the Respondent received a request for bargaining from Amalgamated it held
a lengthy conference with a committee of the employees, on company time, at which
Fields made a number of important concessions to the employees. While it is true
that none of these provided a wage increase to the men, on the other hand, they
represented improvements in the terms and conditions of employment for all those
at the Respondent's plant. Thus, on June 11 the Respondent promised the employee
committee that it would (1) permit them to carry over unused sick leave for as much
as 2 years; (2) assist the employees in establishing a pension fund; (3) establish a
more desirable practice on scheduling vacations; (4) allow the employees a half day
off on Good Friday and time off to vote on election days; (5) establish a new plan
on granting raises at regular intervals each year; (6) attempt to secure a more
desirable hospitalization plan for the employees, and (7) that it would embody these
new policies in a booklet which it would distribute to all the employees. At the same
time Fields told the committee that the advent of a union would mean less employ-
ment for the men during slack periods, more stringent work rules, and the loss of
benefits such as free uniforms and free coffee and cake while on duty. This direct
negotiation with the men by the Respondent at a time when it knew that a union
was actively campaigning to organize the employees, undercut and disparaged Amal-
gamated in a manner that has long been held to be unlawful interference, restraint,
and coercion by an employer. Medo Photo Supply Corporation v. N.L.R.B., 321
U.S 678, 683-687. At the outset of the meeting, Rainone told the plant official
that although he did not care to have a union he saw no alternative "if he didn't get
any assurances now ." According to Mr. Fields, at this point, one of the
committee members told him "we don't want a union . we just as soon negotiate
with you and settle all these problems the best way." Fields' subsequent promise of
benefits, outlined above, and references to privileges which the advent of a union
would cause them to lose, were calculated to keep the employees from becoming or
remaining members of Amalgamated. By such conduct the Respondent violated
Section 8 (a) (1) of the Act. Finally, Fields suggested to the committee on June 11
and to the whole body of employees at the meeting of June 12 that they could revoke
their authorization cards by signing a petition to that effect. Thereafter, Fields
dictated such a petition to his secretary and allowed Elroy Jones to go among the
employees, during working time, to secure their signatures. In sponsoring this peti-
tion, thereby soliciting the employees to withdraw their support from and repudiate
Local 55, the Respondent further violated Section 8(a) (1) of the Act. Decker-
Truck Lines, 128 NLRB 858, 868-869, enfd. 296 F. 2d 338 (C.A. 8).
C. The evidence as to the alleged violations of Section 8(a)(5); finding and
conclusions with respect thereto
1. The appropriate unit
The General Counsel alleged, the Respondent conceded, and I find, that all produc-
tion, maintenance, shipping, and receiving employees of the Respondent, employed
at its Queens plant, exclusive of office clericals, professionals, guards, watchmen,
and supervisors, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act. The parties further stipulated
that during the period in question there were 26-named employees within the fore-
going unit.
The General Counsel offered in evidence the authorization cards of 15 individuals
who were employed within the above unit during the time in question. All of these
cards were dated from May 28 to June 4, 1962. The authorizations were in the con-
ventional form.ii It was not seriously disputed by the Respondent that nine of the
"The cards read as follows:
AUTHORIZATION iCARD
I hereby authorize Amalgamated Union Local 55 to act as my collective bargaining
agent in dealing with my employer in regard to wages, hours and other conditions of
employment, and in proceedings before the NLRB and other governmental agencies.
All previous authorizations made by me are revoked.
EDWARD FIELDS, INCORPORATED 1193
employees signed these cards freely and for the purpose of authorizing Amalgamated
to represent them. These were. Elroy Jones, James Zanata, Thomas Militello,
Anthony Vaios, James Ramone, Thomas Ingargiola, Christ Doriza, Oliver Cowans,
and Alvester Baker. The Respondent contends, however, that the authorizations
of six others have no validity. These were the cards of Joseph Militello, Bill
Waldron, Brum Orazio, George Kapsopoulos, Frank Kaval, and Charles Cox. The
issues in connection with these cards will now be considered.
Joseph Militello signed an authorization that is dated June 1, 1962, Militello con-
ceded that he is unable to read or write English or any other language. However,
he credibly testified that Waldron, a fellow worker, read the authorization to him,
explained that it was a card to join the union, and thereafter helped him to fill it
out. Under these circumstances this card must be considered a valid designation of
Local 55 as Militello's collective bargaining agent.
Orazio was another employee who could neither read, write, or speak English.
He spoke only Italian and testified through an interpreter. His card was dated
June 2. Orazio was an exceedingly difficult witness to understand, even through an
interpreter. He testified that he secured the card from "a man in the union" who
had talked to him, that thereafter he signed the authorization while at home and
that he then mailed it to the union. Although at one point Orazio testified that he
did not discuss the card with anyone, he also testified that everyone in the shop
"told me it [the union ] was a good thing, and I signed it [the card]." Later, Orazio
was asked "When the people in the shop told you that the union was good, was
there any other discussion in the shop?" He answered "I liked it, I signed it, and
that's all. And I knew nothing more." On the basis of this testimony it is my
conclusion that Orazio understood the significance of his action in signing the card
and that by so doing he fully intended the union to represent him.
Waldron voluntarily quit the Respondent's employ on July 1 and was not called
as a witness. A card which purported to bear his signature and which was dated
June 1, 1962, was offered in evidence by the General Counsel. According to
Zakman, an organizer for Amalgamated, this card, as well as all the others here in-
volved, was received through the mail at the Charging Party's office. Thereafter it
was kept in the Union's custody until the latter filed its representation petition with
the Board in Case No. 2-RC-12126, at which time it was turned over to the Regional
Office in support of the petition . Joseph Militello testified that at the same time that
Waldron helped him fill out a card, as testified above, Waldron filled out an authoriza-
tion card for himself, and then gave the completed card to Militello for mailing.
The latter testified that thereafter he mailed this card on Waldron's behalf. Militello
testified that he was from 2 to 3 feet away from Waldron at the time the latter was
filling out his card and he conceded that he could not identify Waldron's signature
The card in question is signed "W Waldron " This same signature appears on the
antiunion petition which was received in evidence without objection The signature
"W Waldron" which is on the card appears to be identical with that of "W. Waldron"
which is on the petition. In similar cases the Board has held that an authorization
has been sufficiently identified and may be found to be a valid designation of the
named union as a collective-bargaining agent for the employees in question Com-
bined Metal Mfg. Corp., 123 NLRB 895, 896-897; Philamon Laboratories, Inc.,
131 NLRB 80, footnote 1, enfd . 298 F. 2d 176, 179-180 (C.A. 2). I so find in
this instance.
George Kapsopoulos was an employee of the Respondent until sometime in July.
He did not appear at the hearing. A card purporting to bear his signature was
offered in evidence by the General Counsel. This card was dated May 29, 1962.
Anthony Vaios, a fellow employee testified that Kapsopoulos rode to work with him
every day while employed at the plant, and that on the way home one day during
this period Kapsopoulos had an authorization card and asked Vaios about it Ac-
cording to the latter, he told his associate to do as he wished. Later, according to
Vaios, Kapsopoulos told him that he had decided to join the Union. Vaios further
testified that while Kapsopoulos was in the car on this occasion the latter had Vaios
fill out the card for him and that Kapsopoulos then signed it Thereafter, accord-
ing to Vaios, his associate had him stop at a mailbox where he mailed the card
to the union headquarters. Kapsopoulos was a recent immigrant who spoke only
Greek and could neither read nor write English. Vaios, however, also spoke this
language and it was in that tongue that the two carried on their conversation. The
signature of a "George Kapsopoulos" appears on the antiunion petition referred to
above. This signature and that which is on the card in question appear to be iden-
tical. The Respondent did not question the authenticity of the Kapsopoulos signa-
ture on either the petition or the card. Cf. Combined Metal Mfg. Corp, idem , and
Philamon Laboratories, Inc., idern. It is my conclusion, and I find, that this card
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
constituted a valid designation of Local 55 as the collective-bargaining agent for
George Kapsopoulos. I. Taitel and Son, 119 NLRB 910, 912; Hunter Engineering
Company, 104 NLRB 1016, 1020, enfd. 215 F. 2d 916 (C.A. 8).
The Respondent's objection to the validity of the authorizations signed by Kaval
and Cox is based on certain testimony they gave as to what their intentions were
when signing the cards. Thus, at one point Kaval stated that at the time he signed
the card he understood "That . the card would authorize them [the Union] to
talk for me like I underlined there, it was just a talk, that I wasn't going to sign
nothing that I would be held for there, that it was no contract." 12 During Cox's
testimony he stated that he understood that by signmg the card ". . the Union
representative would come in and we would talk to him about getting a union."
Neither Cox nor Kaval gave any testimony as to any misrepresentation by the union
organizers or anyone else as to what the cards, once signed, would authorize. Neither
testified that his signature had been secured by coercion. There was no dispute as
to whether Kaval and Cox could read. Both of them obviously could and both
testified that they read the card before signing it. Their execution of the cards was,
therefore, their own voluntary act. For this reason I conclude that their cards
constitute valid designations of Local 55. Top Mode Manufacturing Co., 97 NLRB
1273, 1296, enfd. 203 F. 2d 482 (C.A. 3); E. H. Sargent and Co., 99 NLRB 1318,
1322-1323.13
The Charging Party made its first demand for recognition in its letter of June 5.
At that time it claimed to have a "majority of your employees in all branches of
your [Fields'] company " On June 11, Amalgamated filed the representation
petition in Case No. 2-RC-12126 wherein it named the Employer as "Edward Fields,
Inc, and subsidiaries" and described the unit as including "production, maintenance,
shipping, and receiving employees," and excluding office clericals, professionals,
guards, watchmen, and supervisors On June 19 when the parties met at the Regional
Office to discuss the representation case they agreed upon a list of 25 employees who
should be included in the last described unit. At the unfair labor practice hearing
the parties stipulated that Walter Hanseen, a part-time employee, should have been
included on this list, thus making a total of 26 in the agreed-upon unit.
Edward Fields, Inc., has a wholly owned subsidiary, International Dye Works.
The latter has a dye shop which is located across the street from the Fields' plant,
but its winding department is on the same premises as the carpet factory. Inter-
national has only two employees, Warren C Caple who works in the dye shop,
and Christina Weiss who is employed in the winding department. Weiss also spends
part of each day working for Edward Fields, Inc. Zakman testified that, during the
course of their organizational campaign, he and Fisher contacted employees at both
the carpet factory and the dyeworks.
In its original demand for recognition Amalgamated claimed a majority "in all
branches" of the Respondent Company, and in its representation petition it sought
an election among the employees of "Edward Fields, Inc., and subsidiaries." Under
these circumstances, for the purposes of determining a majority, the two employees
of International Dye Works must be considered along with the 26 others listed above
for the carpet factory, thus making a total of 28 employees. It should be noted
that at this time Edward Fields, Inc., had other nonsupervisory employees on the
payroll These were Lee Cook, a designer , Christine Gifford, secretary to Elliott
Fields, and two office clericals, Theresa A. Maione and Juanita A. Sancho. De-
signers in the textile field are customarily excluded from a production and mainte-
nance unit. Wonderknit Corporation, 123 NLRB 53, 54; J. P. Stevens & Co., Inc,
93 NLRB 1513, 1515. The secretary to the superintendent or to any other plant
official is similarly excluded from such a unit. Threads, Inc., 121 NLRB 1507,
1511. Further, the Board's usual policy is to exclude office clericals from a unit of
production and maintenance employees. Brighton Mills, Inc., 97 NLRB 774, 775.14
12 On the other hand , at another point, Kaval testified that he signed the card "to let
the union try to see what they could get us . . . .'
13 See Joy Silk Mills v N.L R B , 185 F. 2d 732, 743 (C.A.D C.), cert. denied 341 U S
914, where that Court stated* "as employee's thoughts (or afterthoughts) as to why he
signed a union card , and what he thought that card meant, cannot negative the overt
action of having signed a card designating a union as bargaining agent AT L R R v
Sunshine Mining Co , 110 F 2d 780, 790 (C A 9) ; N L.R B v Consolidated Machine
Tool Corporation, 67 NLRB 737, 739, enfd 163 F. 2d 376, cert denied 332 U S 824 "
14 Cf Threads, Inc., 121 NLRB 1507, 1511 There the Board included office clericals in
a production and maintenance unit, primarily because it found that their actual duties
were those of plant clericals
EDWARD FIELDS, INCORPORATED 1195
In view of the foregoing cases, it is my conclusion that neither Cook , Gifford, Maione,
nor Sancho should be included within a production and maintenance unit of the
Respondent's employees. The demand for recognition in the Charging Party's
letter of June 5 was based on the union claim to represent a majority of the employees
"in all branches" of the Company. On June 11 the Union filed a representation
petition for a production and maintenance unit of the employees of "Edward Fields,
Inc., and subsidiaries ." Viewed in its broadest scope, which must be done in the
light of the representation petition , 15 Local 55 was demanding recognition as the
representative of 28 production and maintenance employees, as set out above On
June 6, when the Respondent received from Amalgamated the letter in which Local
55 demanded recognition and a bargaining conference , the Union had secured
authorization cards from 15 of the employees. This was a majority of the employ-
ees in the aforesaid unit. I so find.
2. The refusal to bargain
In response to the General Counsel 's allegation that the Company violated Sec-
tion 8(a)(5) of the Act, the Respondent contends that it had a good-faith doubt
whether Local 55 represented a majority of the employees in an appropriate unit so
that it was not required to bargain with that union until Local 55 proved its majority
in a Board election.
The General Counsel conceded that there was some ambiguity as to the scope of
the unit requested by the Union in its letter of June 5 and the one for which it filed
an election on June 11. As found above, however, this could have meant a differ-
ence of no more than two employees between the number included within the
original unit request and that which Local 55 requested in its representation petition.
This, therefore , did not constitute a substantial variance between the unit which the
Union initially sought and the one which it requested in the representation matter,
and which the General Counsel here alleged as appropriate . American Manufactur-
ing Company of Texas, 139 NLRB 815; Laabs, Inc., 128 NLRB 374, 375; Barney's
Supercenter, Inc., 128 NLRB 1325, 1327-1328; Derby Coal & Oil Co., Inc., etc.,
139 NLRB 1485.
In the event an employer has an honest doubt as to a union 's purported majority,
or the unit which the Board would find appropriate, it is well settled that he may
insist on a formal representation proceeding and a Board-conducted election to
resolve such doubt before being obligated to bargain. N.L.R.B. v. Jackson Press,
Inc., 201 F. 2d 541, 544-545 (C.A. 7); Joy Silk Mills v. NL.R.B, 185 F. 2d 732
(C.A.D C.), cert. denied 341 U.S. 914. However, such a position on the part of
an employer is not tenable should the evidence develop that he did not entertain
any real doubts of the union 's majority and that his insistence on certification was
motivated largely by a desire to gain time to destroy the union's support. N L.R B
V. Wheeling Pipe Line, Inc., 229 F. 2d 391, 393 (C.A. 8); N.L R.B v. W. T. Grant
Company, 199 F. 2d 711, 712 (C.A. 93, cert. denied 344 U.S. 928; N.L.R.B. v Ken
Rose Motors, Inc , 193 F. 2d 769, 771 (C.A. 1).
It is true, as the Respondent asserts in its brief , that it met with Local 55 only 2
days after the date the Union requested. On the other hand, as found above, from
the time it first learned that the employees were interested in securing a labor or-
ganization to represent them the Respondent engaged in a continuing series of
violations of Section 8(a)(1) of the Act, including unlawful interrogation and re-
quests upon its employees that they engage in surveillance of their coworkers' union
activities. Then, on June 11, Elliott Fields engaged in a bargaining session with a
committee of the employees , promised the committee various concessions and fore-
cast the loss of certain benefits if the plant was organized. Finally, on June 12,
at another meeting with the men and thereafter , this same vice president of the Re-
spondent , was instrumental in getting the employees to sign a petition whereby they
sought to revoke the authorization cards previously signed for Local 55. In the
light of this course of conduct, it is my conclusion, and I find, that the Respondent
did not have a bona fide doubt as to the majority status of Local 55 and that, by
its refusal to bargain with that union on June 13, 1962, or at anytime subsequent
thereto, it violated Section 8(a) (5) of the Act. Joy Silk Mills v. N.L.R B, ibid,
pages 741-742; National Furniture Mfg. Co., 130 NLRB 712, 724-725; Bedford-
Nugent Corp., 137 NLRB 1030. It was a further violation of that same section of
the Act for Elliott Fields to engage in bargaining with a committee of the employees
and unilaterally to promise to his employees the various changes in their working
"Ivy Hill Lithograph Company, 121 NLRB 831 , 835, footnote 13; cf N L R R v
Sunrise Lumber & Trim Corp. , 241 F 2d 620 , 623, 624 ( CA 2), cert denied 355 U.S 818
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions and other benefits described earlier herein . Medo Photo Supply Serv-
ice v. N L R.B., 321 U S. 678, 683-687.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, 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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Having found that the Re-
spondent unlawfully refused to bargain with the Charging Party, the conventional
remedy includes a provision that the employer bargain with that union. Earlier in
this Report I have found that Local 55 is a labor organization under the Act. Fur-
ther, having made that determination, the Respondent's serious allegations as to the
internal management of Local 55 were held, on the authority of Alto Plastics Manu-
facturing Corp., 136 NLRB 850, irrelevant to the issues herein. In the last named
case the Board held that the alleged corruptness of the petitioning labor organiza-
tion was not relevant to the question of whether it was a labor organization within
the meaning of the Act and entitled to the protection of the Act. Nevertheless, in
that same decision the Board pointedly referred to its authority, in the event such
a union was certified, to police and revoke the certification if the union in question
failed to fulfill its statutory obligations as the exclusive bargaining representative of
the employees . Since a bargaining order in the present instance is tantamount to
certification, the Trial Examiner feels obliged to remind the parties of this power,
vested in the Board , which the Board can and may exercise , if good cause is shown,
upon a motion to revoke a certification. Alto Plastics, ibid.; Hughes Tool Company,
104 NLRB 318, 321-330; Pittsburgh Plate Glass Company, 111 NLRB 1210, 1213-
1214; A. O. Smith Corporation, 119 NLRB 621, 622; Larus & Brother Company,
Inc., 62 NLRB 1075.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and Local 55 is a labor organization,
all within the meaning of the Act.
2. All production, maintenance, shipping, and receiving employees of the Respond-
ent, employed at its Queens plant, exclusive of office clericals, professionals, guards,
watchmen, and supervisors, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
3. At all times since June 5, 1962, Local 55 has been the exclusive representative,
for the purpose of collective bargaining within the meaning of Section 9(a) of the
Act, of all the employees in the aforesaid appropriate unit.
4. By refusing, on and since June 13, 1962, to bargain collectively in good faith
with Local 55 as the exclusive representative of its employees in the aforesaid ap-
propriate unit and by unilaterally promising its employees changes in their working
conditions and other benefits, the Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section 8 (a) (5) of the Act
5. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Edward Fields, Incorporated, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with Amalgamated Union Local 55,
affiliated with District 5, as the exclusive representative of all its employees in the
following appropriate unit. All production, maintenance, shipping, and receiving
EDWARD FIELDS, INCORPORATED 1197
employees of the Respondent, employed at its Queens plant, exclusive of office
clericals, professionals, guards, watchmen, and supervisors as defined in the Act.
(b) Unilaterally changing the working conditions of its employees or by any
other unlawful means endeavoring to induce them to abandon their membership in
the Union.
(c) Coercively, or otherwise unlawfully, interrogating employees concerning their
union activities or sympathies.
(d) Participating in the circulation of antiunion petitions among its employees to
induce their withdrawal from the Union.
(e) Asking employees to report about union organizational activities because
Respondent would like to keep the Union out or for any other reason.
(f) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of their rights guaranteed under Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the ex-
,clusive representative of all the employees in the appropriate unit, and embody in
a signed agreement any understanding reached.
(b) Post at its plant in Queens, city and State of New York, copies of the attached
notice marked "Appendix." i6 Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly signed by the Re-
spondent, be posted by the Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter in conspicuous places where notices
are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notice is not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.17
"In the event that this Recommended Order be 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 be 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."
171n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith "
APPENDIX
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, we hereby notify our employees that:
WE WILL, upon request, bargain with Amalgamated Union Local 55, Affiliated
with District 5, as the exclusive representative of all the employees in the
bargaining unit described below, with respect to rates of pay, wages, hours, and
other conditions of employment, and, if any understanding is reached, embody
such understanding in a signed agreement. The bargaining unit is:
All production, maintenance, shipping, and receiving employees em-
ployed at our Queens plant, exclusive of office clericals, professionals,
guards, watchmen, and supervisors as defined in the Act.
WE WILL NOT ask any employee to report about union organizational activities
because we would like to keep the union out or for any other reason; participate
in the circularization of antiunion petitions among employees to induce their
withdrawal from the aforesaid union; unilaterally change the working condi-
tions of our employees or by any other unlawful means endeavor to persuade
them to abandon their membership in the Union; coercively, or otherwise
unlawfully, interrogate our employees concerning their union activities or sym-
pathies; or refuse to bargain collectively with the Union as the exclusive repre-
sentative of the employees in the bargaining unit described above.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed by Section 7 of the
Act, except to the extent permitted by Section 8(a) (3) of the Act.
EDWARD FIELDS, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
Employees may communicate directly with the Board 's Regional Office, 745 Fifth
Avenue, New York , New York , Telephone No. Plaza 1-5500 , if they have any
questions concerning this notice or compliance with its provisions.
Corbin -Dykes Electric Company and Anthony San Angelo. Case
No. 28-CA-860. April 10, 1963
DECISION AND ORDER
On December 28, 1962, Trial Examiner Martin S. Bennett issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in unfair labor practices as alleged
in the complaint, and recommending dismissal of the complaint in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief. The Respondent filed a brief in support of
the Intermediate Report.
Pursuant to the provision of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard at Tucson, Arizona, on October 30, 31, and November 1,
1962, and is based upon a charge filed August 2, 1962, as later amended , by Anthony
San Angelo , an individual . The complaint, as amended , issued September 27, 1962,
and alleges that Respondent , Corbin-Dykes Electric Company, had engaged in un-
fair labor practices within the meaning of Section 8(a)(3) and 8(a)(1) of the Act
by refusing to hire San Angelo and Harry D. Howe on or about July 27, 1962.
Oral argument was waived at the close of the hearing and briefs have been received
from the General Counsel and from Respondent . Ruling having been reserved
141 NLRB No. 104.