Fordham Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Nov 14, 1975

221 N.L.R.B. 681 (N.L.R.B. 1975)

FORDHAM EQUIPMENT COMPANY, INC. 681
Fordham Equipment Company , Inc. and Local 210,
Production, Merchandising & Distribution Em-
ployees Union, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America. Case 2-CA-13520
November 14, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELL'O
On June 18, 1975, Administrative Law Judge Alvin
Lieberman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member'panel.
The Board has considered,'the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,1 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Fordham Equipment Company, Inc., Bronx,
New York, its officers, agents, successors, and
assigns, shall take the action set forth in said
recommended Order, as so modified.
1. , In paragraph l(g) substitute the words "In any
like or related manner" for "In any other manner."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3). We have carefully
examined the record and find no basis for reversing his findings.
However,
'
we do not rely upon the Administrative Law Judge's
commentary regarding Florence Robbins' denials of having talked to
employees concerning the Union as being "inherently improbable" because
she was not knowledgeable of labor relations law Instead , we rely upon the
credited testimony of other witnesses (Gonzalez and Carlo) and the
preponderance of the evidence.
In addition , we reject the Administrative Law Judge's reliance on falsus
in und, falsur in omnibus, as a basis for discrediting the entire testimony of Al
Robbins. As Justice Learned Hand said to the contrary in N.LR.B v.
Universal Camera Corporation, 179 F.2d 749, 754 (C.A. 2, 1950) "It is no
reason for refusing to accept everything that a witness says, because you do
not believe all of it, nothing is more common in all kinds of'judicial
decisions than to believe some and not all."
Instead, we again rely upon the credited testimony of other witnesses and
the preponderance of the evidence.
Finally, we find it unnecessary to pass on the Admnistrative Law Judge's
conclusion that Al Robbins also coerced employee John Oliver, into
withdrawing his union card Having adopted the Administrative Law
Judge's findings that Robbins coercively solicited and threatened John
Gonzalez and Fernando Carlo to withdraw their union cards , the remedy
would not be affected by an additional finding of a violation - as to Oliver.
2 We agree with the Administrative Law Judge that a bargaining order is
warranted here to remedy the unfair labor practices committed by
Respondent . However, in accordance ' with our recent decision in Trading
Port,, Inc, 219 NLRB No 76 (1975), our remedy will require Respondent to
recognize and bargain with the Union as of October 31, 1974 , the date of the
Union's demand for recognition and the date on which the Respondent
embarked on a clear course of unlawful conduct We do not find an-8(a)(5)
violation inasmuch as none was alleged , in the complaint and inasmuch as,
in the circumstances of this case, the prescribed remedy provides a full and
complete remedy for the unfair labor practices on which the bargaining
order is based American Map Company, Inc, 219 NLRB No. 186 ,( 1975)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS, BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge,
at which all parties had the opportunity to present
evidence and arguments it has been decided that we,
Fordham Equipment Company, Inc., have violated
the National Labor Relations Act. We have, there-
fore, been ordered to post this notice and carry out
its terms.
WE WILL NOT question you about anything
connected with Local 210, Production, Merchan-
dising & Distribution Employees, Union Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any
other union.
WE WILL NOT fire or blackball you, or threaten
to do so, because you join, sign a card for, or help
Local 210, International Brotherhood of Team-
sters , or any union or because you have done any
of these things.
WE WILL NOT close our plant, or threaten to do
so, if you bring in Local 210, International
Brotherhood, of Teamsters, or any other union, to
be your union.
WE WILL NOT pay you, or promise to pay you,
higher wages to make you want to give up Local
210, International Brotherhood of Teamsters, or
any other union,
WE WILL NOT promote anyone to be a
supervisor, or promise to do so, to'make him want
to give up Local 210, International Brotherhood
of Teamsters, or any other union.
WE WILL NOT order or ask you to cancel,
revoke, or get back cards you, signed for Local
210, International Brotherhood of Teamsters, or
any other union.
221 NLRB No. 75
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT order or ask you to give up or get
out of Local 210, ' International Brotherhood of
Teamsters, or any, oother union.
WE wiLL recognize Local 210, International
Brotherhood of Teamsters, as your union. -
WE WILL, if we are asked-to do so, bargain-with
Local ;J10, International Brotherhood of Team-
sters , about -your rates of pay, wages, working
hours, and other'matters 'related to your work. If
we come , to an agreement about any of these
things With Local 210, International Brotherhood
of Teamsters,: we will put that agreement in
writing and sign it.
WE WILL respect your right to form any union,
to join any union, to help any union, and to
bargain with us through any union. We will also
respect your right -not to do any of these things,
except as required by law.
WE WILL NOT in any, like or related manner
interfere with, restrain, or coerce employees in the
exercise of their -,right to self-organization, _ to
form, join , or assist labor organizations, to
bargain , collectively through representatives of
their own, choosing, or to engage in other
concerted, activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed in Section 7 of the National Labor
Relations Act, as amended, or to refrain from any
or all such activities, except to the extent that
such right may be affected by an Iagreement
requiring membership in a labor organization as a
condition of employment in conformity with
Section 8(a)(3) of the Act.
All our employees, are free, without any objection
from us, to become or remain members of Local 210,
International Brotherhood of Teamsters, or any
other union, or not to become or remain members of
Local, ,210,, International Brotherhood of Teamsters,
or of,, any other union, except as required- by law.
FORDHAM EQUIPMENT
COMPANY, INC.
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The
hearing in this proceeding with all -parties, except the
Charging Party, represented was held before me in New
York, New York, on February 11 and 12,_ 1975, upon the
General Counsel's complaint dated December 27, 1974,1
and Respondent's answer. In general the issues litigated
were whether Respondent violated Section 8(a)(1) of the
National Labor Relations Act, as amended (Act)2 and, if
that were so, the, nature of the relief to be granted.
Particularly, the principal questions `for decision are as
follows: `
1. Did Respondent violate Section 8(a)(1) of the Act by
threatening and interrogating employees concerning their
union activity; by promising benefits to employees to
dissuade them from supporting Local 210, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America (Union); 3 and by soliciting employees
to withdraw their support from the Union?
2. Did the Union represent an effective majority of
Respondent's employees when its request for bargaining
was -made?
3. Assuming an affirmative answer to the foregoing
question, should a bargaining order issue?
Upon the entire record,4 upon my observation of the
witnesses and their demeanor while testifying, and having
taken into "account the arguments made and the briefs
submitted,5 I -make the following:
FINDINGS OF FACr6
1. JURISDICTION
Respondent, a New York corporation, is engaged in the
Bronx, New York, .in, the manufacture and sale of
educational equipment and related products. During 1974,
a representative period, Respondent sold and shipped
goods valued at more than $50,000 to customers located
outside the State of New York. Accordingly, I find that
Respondent is engaged in commerce within the meaning of
the Act and that the assertion -of jurisdiction over this
natter by the National Labor Relations Board is warrant-
ed. _ -
I The complaint was issued pursuant to a charge filed by Local 210,
Production , Merchandising & Distribution Employees Union, International
Brotherhood , of Teamsters , Chauffeurs, Warehousemen & Helpers of
America.
2 This section provides:
Sec. 8 .(a) It shall bean unfair labor practice for an employer-
(1) to interfere with, " restrain , or coerce employees in the exercise of
the rights guaranteed in section 7;
Sec. 7, insofar as relevant, states:
Sec. 7. Employees shall have the right to self-organization, to
form , join, or assist labor organizations , to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain froirt any or all of
such activities . .
3 The Union's full designation appears in the caption.
4 Issued simultaneously , is a separate order correcting obvious inadvert-
ent errors in the stenographic transcript of this proceeding.
5 Although all the arguments of the , General Counsel and Respondent
and the authorities cited by them , whether appearing in their briefs or made
orally at the hearing, may not be discussed in this Decision, each has been
carefully weighed and considered.
s Respondent 's, motion made at the conclusion of the , hearing, upon
which I reserved decision, is disposed of in accordance with the findings and
conclusions set forth in this Decision.
FORDHAM EQUIPMENT , COMPANY, INC. 683
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. INTRODUCTION
Briefly, this case is concerned with the Union's request
for recognition as the collective-bargaining representative
of Respondent's employees, to which Respondent did not
accede, and certain subsequent events. Included among the
latter, the complaint alleges, were violations of Section
8(a)(1) of the Act.7 To remedy these alleged violations the
General Counsel urges that, in addition to the usual cease-
and-desist order,'a bargaining order issue.
Respondent has denied the commission of the unfair
labor practices alleged in the complaint. Respecting the
General Counsel's contention that a bargaining order be
entered, Respondent's position is that even if it were to be
found that it violated Section 8(a)(1) of the Act, the
violations would not warrant the imposition of such a
remedy. Instead, Respondent proposes that a representa-
tion election be conducted to enable its employees to
indicate whether they desire the Union to act as their
collective-bargaining, agent.
IV. PRELIMINARY FINDINGS AND CONCLUSIONS8
A. The Appropriate Unit and Its Complement
The parties stipulated, and I find, that the following unit
is appropriate for collective bargaining:
All full-time and regular part-time employees employed
by respondent in its shipping, receiving, printing,
engraving, and production departments, excluding
office clericals, guards, watchmen, and supervisors.
The parties further stipulated that the complement of the
foregoing unit consisted of five employees; Bruce Beckles,
Fernando Carlo, John Gonzalez, John Oliver, and Rose
Schorsch.
B. The Union's Majority, the Bargaining Request,
and the Strike
Since about July 1974,9 Respondent's employees talked
among themselves about joining a union. On October 29
John Gonzalez, accompanied by Fernando Carlo, sought
out Ernest -Rhode, an agent of the Union and an
acquaintance of,Gonzalez, and discussed with him the
matter of the Union's representing Respondent's employ-
ees. Rhode gave Gonzalez and Carlo authorization cards to
be executed by them and the other unit employees.
The cards consisted of two sections. One was entitled
"Application And Check-Off Authorization Blank." The
7 The nature of these claimed violations appear above in my statement of
the principal questions for decision.
3 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to Respondent's alleged unfair labor
practices and to the conclusions to which they may give rise. To the extent
that the contentions of the parties relate specifically to the findings made
here they will be treated here, although they, as well as the findings, may
again be considered in other contexts.
other referred to during the hearing as a "stub," was
headed by the statement "10 Reasons Why You Should
Join I. B. of T." The sections were joined together by a
perforated fold.io
Gonzalez and Carlo each signed a card during their
conference with Rhode. They detached the stubs and
returned the parts containing their signatures to Rhode.
Gonzalez" and Carlo brought the other cards into
Respondent's plant the next day, October 30. At their
urging two other employees, Bruce Beckles and John
Oliver, signed separate cards, which were also returned to
Rhode.
Four of the five employees in the unit having, thus,
signed cards by October 30, the Union's majority at that
time was clear.
As is alleged in the complaint, and admitted in the
answer, on October 31 "the Union [acting through Rhode,
its agent,'orally] requested respondent to recognize it and
bargain . . . with it as the exclusive . . . bargaining
representative of the employees in the unit " As is further
alleged in the complaint, and admitted in the answer,
Respondent "since . . . October 31 . . . has refused to
recognize and bargain ... with the Union."
On November 5, Beckles wrote, signed, and delivered to
Al Dobbins, Respondent's president, a paper" addressed
to the Union stating: "I have decided not to join your
union. Please cancel my card." The next day Oliver
delivered to Robbins a document12 written and signed by
him which stated: "I am not interres [sic] the union. Please
cancel my card." It does not appear that these instruments
were sent to the Union.
The question arises as to whether the writings signed by
Beckles and Oliver requesting that their cards be canceled
operated to defeat the Union's earlier acquired majority.13
Clearly, they did not have such an effect, having been
signed after October 31, the date on which the Union
made, and Respondent received„ the bargaining request.
"It is well settled that the date for determining the
union's majority status is the date on which the union's
demand for bargaining is received by the employer."
Federal Stainless Sink Div. of Unarco Industries, Inc., 197
NLRB 489 (1972). The writings in question having been
executed after the Union's bargaining request was received
by Respondent, they did not-deprive the Union of its status
as majority representative of Respondent's employees, in
the unit found to be appropriate attained before it made its
request. C. A. Froedge Delivery and Trucking Service, Inc.,
172 NLRB 46, 54(1968); Henry Spen & Company, Inc., 150
NLRB 138, 139 (1964).
Because Respondent persisted in its refusal to accede to
the Union's request for recognition, the Union on
November 6, called a strike against Respondent 14 Howev-
er, only' Gonzalez and Carlo answered the call.
9 All dates hereinafter mentioned fall within 1974
10 An example;of the card is in evidence as Resp. Exh L
11 Resp. Exh 5.
12 Resp. Exh. 4.
13 The circumstances concerning the preparation of these documents will
be discussed below.
14 The strike was still in progress at the time of the hearing in this
proceeding.
-684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Credibility
The foregoing -findings are based on stipulations,
documentary evidence, admissions in the answer -of
allegations appearing in the complaint, and testimony as to
which there is no dispute. There are, however, „sharp
differences between the, testimony given by the, General
Counsel's witnesses and that presented by Respondent's
witnesses concerning the complaint's averments, that
Respondent violated Section 8(a)(1) of the Act.,' 'The
resolution of these" testimonial conflicts will weigh the
balance in favor of the General Counsel or Respondent.
After careful consideration I have decided not to 'credit
Respondent's witnesses where. their evidence ,varied from
the testimony of the General Counsel's witnesses.
Respondent called three witnesses, Al Robbins, its
president; his wife, Florence Robbins, its secretary; and
John Oliver, one of its employees. My 'reasons for not
believing them follow.
Although Respondent has been in business for 20 years,
it was never, before, October 31, 1974, confronted with a
demand for recognition from a union. Nor had Respon-
dent's officers ever before dealt with a union. Their naivete
concerning matters of this sort was made plain' by the
evidence and was 'commented upon by, the General
Counsel and Respondent's lawyer. I share their opinion.
The gist of Mrs. Robbins' testimony is that she never
spoke to Respondent's employees about the Union after
she became aware that they signed its cards. In view of her
lack of knowledge as to union matters and the restrictions
placed upon employers by the Act, I am unable to accept
Mrs. Robbins' denials as true.
Experience has shown that even employers knowledgea-
ble in such affairs talk to their employees about a union
when apprised of their.having,signed union cards. In view
of this, it seems likely that employers not similarly versed,
as typified by Mrs. Robbins, would also do so.
Accordingly, Mrs. Robbins' testimony that she did not
speak to Respondent's employees concerning the Union
upon learning that they had signed cards is inherently
improbable. Therefore, I have rejected it. See, in this
connection, Universal 'Camera Corp. v. N.L.R.B.; 340 U.S.
474,496 (1951).
As will be set forth,below, Respondent sought to have.its
employees withdraw their support from the Union. Iv this
connection, John 'Gonzalez, one of the Union's principal
adherents in Respondent's employ, stated that Al 'Robbins,
Respondent's president, told him that the signing of the
cards by Respondent's employees caused Mrs. Robbins 'to
suffer a heart attack. Upon being so informed, Gonzalez,
as he testified "decided... that [he was] not going to join
the union" and that he would "talk to the boys and see if
we can do something about it."
At his first opportunity,, Gonzalez further testified, he
reported to Bruce Beckes and Fernando Carlo, fellow
employees who, like;` Gonzalez, had signed cards, what he
had learned from Robbins concerning Mrs. Robbins' heart
attack. In view of this they decided to retrieve their cards
from the, Union. Gonzalez also related that he,. Beckles,
and Carlo then told Robbins of their decision.
Carlo, one of the employees to whom Gonzalez stated he
imparted the information he received from Robbins
concerning Mrs. Robbins' heart-attack, supported Gonza-
lez' testimony in this regard as well as his testimony
concerning the employees' decision, for this reason, to seek
the return of their cards from the Union.15 Furthermore,
Carlo testified that, when the employees informed Robbins
of their decision to have the Unioii return their cards,
Robbins'asked Gonzalez whether be had told them "what
happened." Upon receiving an affirmative reply, Carlo
further related, Robbins, said, "Yes, Mrs. Robbins had''a
heart attack."
Robbins, Respondent's president, without corroboration,
dewed telling Gonzalez or Carlo that the signing, of the
cards caused Mrs. Robbins to, have arbeart.attack. I do not
credit this denial,
Gonzalez' .strong initial support of the Union, his abrupt
decision to withdraw from the Union upon being informed
by Robbins, as Gonzalez testified, that the signing of the
cards resulted in Mrs. Robbins suffering a heart attack, his
immediate report to other employees- of what he stated he
had been 'told by Robbins,- and the support given to
Gonzalez' testimony in the foregoing' respects` by Carlo,
who also testified that Robbins said that Mrs. Robbins had
had a heart attack, lends credence to whatotherwise might
seem to be a bizarre, unbelievable story.,
Accordingly, I credit Gonzalez' and Carlo's testimony
that Robbins, Respondent's president; told them that Mrs.
Robbins, Respondent's secretary,'had experienced a heart
attack because Respondent's employees had signed union
cards and, as I have already stated, 'I discredit Robbins'
denial. Disbelieving Robbins in this regard and applying
the familiar maxim, falsus in uno, falsus in omnibus; I'have
not placed any reliance on Robbins' testimony concerning
his dealing with Respondent's employees in matters
relating to the Union where it conflicts with testimony
given by the General Counsel's witnesses, unless it has
`been corroborated by credible evidence or constitutes
admissions contrary to his interest.
The demeanor of Respondent's third witness, Oliver, was
so unimpressive as to cause me to reject his testimony,
except in those-instances where, as in Robbins' case,,it has
been corroborated by credible, evidence or constitutes
admissions against his interest.
Having decided generally not to credit Respondent's
witnesses 'when their testimony differs from evidence given
by the General Counsel's'witness, I will, make no further
reference'to credibility.,
V. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that following the Union's request
for recognition and bargaining Respondent violated
Section 8(a)(1) of the Act by threatening grid-interrogating
employees; by promising benefits to employees to dissuade
them from supporting the Union; and by directing
15 Beckles, the other employee to whom Gonzalez testified he spoke, was out of the country at the time of the hearing.
FORDHAM EQUIPMENT COMPANY, INC. 685
employees to refrain from remaining members of the
Union.16 These allegations, which Respondent has denied
in its answer, will be considered in appropriate groupings.
A. Interrogation and Threats
As already noted, on October 31, 1974, the Union
requested that Respondent recognize and bargain with it.
This request was made during a conversation between
Ernest Rhode, an agent of the Union, and Al Robbins,
Respondent's president. While talking to Robbins, Rhode
told him that the Union represented Respondent's employ-
ees.
The next morning Robbins came upon Bruce Beckles,
Fernando Carlo, and John Gonzalez, employees of
Respondent, in one of Respondent's offices. While all were
together Robbins asked them, as Gonzalez testified,
"[W]hat have you done? [D]id you sign cards for the
Union?" All replied that they had signed such cards and
Beckles showed Robbins the stub 17 which had been
attached to the card he signed. Several hours later Robbins
told Gonzalez and Carlo, as the latter related, "if you guys
think that you are going to get a union in here, you might
as well look for another job."
A statement of similar import was made by Robbins on
Monday, November 4, the next business day. At that time,
during a discussion about the Union with employees,
Robbins said, as Gonzalez reported, that Respondent
"never had a union and [he] certainly [wouldn't] tolerate
... the union." Also on November 4, as Mr. and Mrs.
Robbins were preparing for an appointment with Respon-
dent's lawyer, they informed Carlo and Gonzalez that they
did not want the employees to be represented by a union.
In this connection, Mrs. Robbins, Respondent's secretary,
ordered Carlo and Gonzalez not to talk again to represent-
atives of the Union, or even,to see them.
Threats were again uttered by Robbins, Respondent's
president on the following day, November 5, during
conferences with individual employees, including Carlo
and Gonzalez. As Carlo related, Robbins said to him that
the employees were "crazy" to think they could "bring a
union in here" because he would "rather lock the doors up
and move somewhere else and start a new business."
Gonzalez was the last employee to whom Robbins spoke
on November 5. Mrs. Robbins, Respondent's secretary,
was also present during his interview.
As he had earlier said to Carlo, Robbins repeated to
Gonzalez, as Gonzalez testified, that "there will never be a
union in the place, that he would rather close." Mrs.
Robbins, Respondent's secretary, added, Gonzalez further
testified, that "for . . . [bringing] a union into the place
[he] would be blackballed in New York City."
It is well settled that an employer violates Section 8(a)(1)
of the Act by coercively interrogating employees concern-
ing their relationship to a union. Had Robbins, Respon-
1e The evidence offered by the General Counsel in support of this
allegation related to respondent's solicitation of employees to retrieve
authorization cards they had signed and given to an agent of the Union.
17 The stub, it will be remembered, listed 10 reasons for joining the
Union.
18 In Federal Stainless Sink, supra at 496, it was held that such an order
constitutes a threat that employees "would suffer reprisals ... if they
dent's president, done nothing more than ask Respondent's
employees whether they signed union cards it might be said
that such interrogation was uncoercive.
However, Robbins' query on November 1, to Respon-
dent's employees as to their card signing did not stand
alone. The fillip provided by the preceding question,
"[W ]hat have you done?" implied that they had performed
an horrendous act, thereby converting an otherwise,
seemingly, innocuous inquiry regarding the signing of
cards into a coercive one.
Furthermore, the November 1, interrogation was fol-
lowed that day and the very next business day by a series
of threats, conditioned upon the Union's advent, of job
loss, plant closing, and blackballing as well as by an order
forbidding employees to see, or speak to, agents of the
Union-18 These, being inherently coercive and violative of
Section 8(axl) of the Act, imparted a coercive nature to
the interrogation. Luby Leasing, Inc., 198 NLRB 951
(1972); enfd. 486 F.2d 1395 (C.A. 2, 1973); Federal
Stainless Sink, supra, at 495.
Accordingly, I conclude that by threatening to discharge
and blackball employees if they continued to support the
Union and by threatening to close its,plant should the
Union attain recognition as its employees' bargaining
agent, Respondent violated Section 8(a)(1) of the Act. I
also conclude that Respondent further violated - Section
8(a)(1) by coercively interrogating employees concerning
their having signed union cards. '
B. Promises of Benefit
On October 31, 1974, the day on which the Union
requested that Respondent recognize and bargain with it,
Al Robbins, Respondent's president, put a question to
Fernando Carlo, an employee of Respondent. As Carlo
testified, Robbins asked him whether he thought "it [was ]
better to have a union and make less money or to have no
union and make more money?"
The next day in a conversation concerning the Union
engaged in by Robbins, Carlo, and John Gonzalez, another
employee, during which Robbins threatened them with the
loss of their jobs if they persisted in supporting the Union,
as found above, the employees complained about the
insufficiency of their wages and the absence, in Respon-
dent's establishment, of a medical and dental insurance
plan for the benefit of Respondent's employees.19 Con-
cerning their complaint about low wages Robbins replied,
as Carlo recounted, "don't worry, as soon as we move into
the new building [you will] become supervisors [and you
will ] be compensated for it." 20 Continuing in this vein, and
answering their complaint about the, lack of medical
insurance, which the employees hoped they would obtain
upon the Union's recognition as their bargaining agent,
Robbins told them, as Carlo further related, that when
Respondent "move[d] into the new building [the employ-
continued their involvement with [a l union."
19 Among the 10 reasons for joining the Union listed on the stub
attached to the union cards signed by Respondent 's employees (Resp. Exh.
1) was one stating : "For life insurance , hospitalization, cash benefits for
sickness or accident , surgical benefits , etc., at no cost to you:'
20 Earlier, Respondent had under consideration a plan to move to
another facility and its employees had been informed of this.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees] will have.Blue cross [or] any medical plan that
[they] want[ed]."
In N.L.R.B. v. Exchange Parts Co., 375, U.S. 405, 409
(1962), the Supreme Court held that an employer's promise
to increase, benefits enjoyed ,by his employes to wean them
away from a union violated Section 8(a)(1) of the Act.
More need not be said insofar as this phase of the case is
concerned.
Accordingly, I conclude- that Respondent violated
Section 8(a)(1) of the Act by promising to promote
employees, to increase their wages, and ,to procure medical
insurance for their benefit to induce them to withdraw
their support, from the Union.
C. Solicitation of, and Inducements to, Employees
To Retrieve Union Cards
As has been found, on Friday, November 1, 1974,
Respondent's employees, including Fernando Carlo and
John Gonzalez, the Union's principal adherents in Respon-
dent's employ, informed Al Robbins, Respondent's presi-
dent, that they had signed, union cards. One employee,
Bruce Beckles , displayed the stub which had been attached
to his card.
Over the ensuing weekend Robbins . seemed to have
devised a, plan whereby he would-play upon the sympathies
of Respondent's employees and in that manner induce
them to renounce the Union. Robbins' opening gambit in
executing this plan was to ask Gonzalez, early in the
morning of Monday, November 4, to show him the stub
which had been attached to his card. Gonzalez told
Robbins that the stub was at,his home and offered to get it.
At Robbins' suggestion, they drove to Gonzalez' house in
Robbins' automobile.
En route to and from Gonzalez' home Robbins told
Gonzalez that the signing of the cards by Respondent's
employees ' had caused Mrs. Robbins, Respondent's secre-
tary, to suffer a heart attack. Appalled by this news,
Gonzalez decided to withdraw from the Union and to talk
to the other employees about also doing so.
Upon returning to Respondent's plant, Gonzalez in-
formed Beckles and Carlo of what Robbins had said
concerning Mrs. Robbins' heart attack. Not wishing to
cause her any further -trouble, they decided, as Gonzalez
testified, "to push the union,aside."
Shortly after making their decision the employees met
with Robbins and reported to him, as Gonzalez further
testified, that they were "deeply,sorry" that their signing
union cards had resulted in Mrs. Robbins' heart attack;
that they, didn't want to cause harm' to him or his family;
that they "no longer [had] any interest in the union." and
would "forget about it." -
Gonzalez also told Robbins that he would inform Ernest
Rhode, the Union's representative, that the employees did
not want to retain their membership. Soon after the
employees left Robbins' office where the foregoing meeting
21 Resp. Exh 5.
22 Oliver's denial that Robbins threatened him in the manner set forth in
.the text furnishes the basis for my finding that Robbins did so N L R B v
Walton Manufacturing Company,& Loganville Pants Co, 369 U.S 404, 408
(1963), the Supreme Court quoting with approval from Dyer v MacDougall
et a!, 201 F 2d 265, 269 (C A. 2, 1952) stated "[T ]he demeanor of a witness
took place, Gonzalez called Rhode and asked him to come
to the plant.
That afternoon Mrs. Robbins, who had not had a heart
attack, arrived at Respondent's plant at her usual hour and
performed her customary duties. Upon seeing her at the
plant and after conferring with Rhode, who pointed out, as
Carlo testified, that " it seemed funny that ... she had had
a heart attack . . . and all of a sudden c ame to work," the
employees' interest in the, Union revived.
Mr. and Mrs. Robbins met with Respondent's lawyer
during the evening of November 4, and discussed with him
the signing of union cards by Respondent's employees and
the Union's request for recognition and bargaining. During
their conference Robbins,, Respondent's president, told
Respondent's lawyer that he had been informed by several
employees who had signed union cards that they were no
longer interested in the Union. Respondent's lawyer
advised Mr. and Mrs. Robbins that if that were truly the
situation, all those employees had to do -in order to retract
their cards was. to sign a statement to that- effect.
Acting on this advice, that next morning Robbins called
Beckles, Carlo, and Gonzalez into his office and, while
they were together, asked them to ,sign such a statement
"so that," Gonzalez related, "we can get rid of the union."
However, they refused to sign.
In a further effort to obtain this result-Robbins, later in
the day, summoned employees to his office individually.
Beckles was the first to be called, and, as has already been
noted, he signed a document 21, addressed to the Union
stating that he had "decided not to join your union." The
document also contained a request that his card be
canceled.
Carlo was the next employee to be called into Robbins'
office. While importuning him to sign a similar statement,
which- Carlo refused to do, Robbins stated, as Carlo
testified, that "the union will drive me out of business." In
-addition, Robbins threatened, as found above "to lock the
doors," rather than deal with the Union.
Gonzalez was the last employee to be interviewed by
Robbins, Respondent's president, on November 5: He, too,
was asked to sign a paper' expressing his lack of interest in
the Union and requesting that his card be returned.
Paralelling the Carlo interview, Robbins, as already noted,
also threatened plant closure. To this, Mrs. Robbins, who
was present, added, as also found earlier, her "blackball"
statement.
Gonzalez told Robbins that 'he would let him know
about signing the next day. At that time Gonzalez rejected
it further request from Robbins that he sign.
On November 6, Robbins asked John Oliver, an
employee of Respondent who had also executed a union
card, to sign a document indicating his disinterest in the
Union and requesting the cancellation of his card.
Capitulating to Robbins' threats of discharge and plant
closing, Oliver signed (Resp. Exh. 4.)22
may satisfy the tribunal, not only that the witness' testimony is not true, but
that the truth is the opposite of his story, for the denial . may be uttered
with such hesitation , discomfort , arrogance or defiance , as to give the
assurance that he is fabricating , and that , if he is , there is no alternative but
to 'assume the truth of what he denies' "- In an earlier portion of this
FORDHAM EQUIPMENT COMPANY, INC.
It appears from the foregoing findings that Robbins'
inducement of Respondent 's employees to retrieve their
union cards was closely associated with threats, violative of
Section 8 (a)(1) of the Act, made by him and Mrs. Robbins.
In these circumstances , therefore , the inducement, if not
alone violative of Section 8(a)(1),23 became such because it
was so tightly intertwined with the threats . C. W. F Corp.,
188 NLRB 554, 559 ( 1971), enfd . 458 F.2d 792 (C.A.D.C.,
1972).
Accordingly , I conclude that by soliciting and inducing
employees to retrieve their union cards and to sign
statements repudiating the Union , Respondent violated
Section 8 (a)(1) of the Act.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices engaged in by Respondent
occurring in' connection with its operations described in
section I, above, have a close, intimate, and substantial
relationship 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.
VII. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act,
my Order will require Respondent to cease and desist
therefrom and to take such affirmative action as will
effectuate the policies of the Act. Concerning the latter, the
General Counsel urges, and Respondent resists, the entry
of a bargaining order.
"Assuming, arguendo," Respondent states on brief in
support of its position, "that there were unfair labor
practices committed . . . they were not so pervasive or
disruptive in nature so as to preclude the holding of a fair
election." Accordingly, Respondent proposes that a repre-
sentation election be conducted to enable its employees to
choose whether they desire the Union to act as their
bargaining agent. I do not agree.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 610,
614 (1969), the Supreme Court held that the Board has
authority to issue "a bargaining order as a remedy for a
[Section] 8(a)(5) refusal to bargain where an employer has
committed independent unfair labor practices which have
made the holding of a fair election unlikely." The Court
also sanctioned the entry of a bargaining order to cure
substantial unfair labor practices unrelated to bargaining
"when that [is]!the only available, effective remedy" where,
as here, "there is also a showing that at one point the
[U ]neon had a majority."
Accordingly in Steel-Fab, Inc., 212 NLRB 363 (1974),
the Board decided that "henceforth, in these Gissel-type
situations, we shall dispense with finding an 8(a)(5)
violation and instead determine only whether or not a
bargaining order is necessary to remedy the employer's
8(a)(1)'s." In my opinion such an order is necessary here.
Decision I have set forth my dissatisfaction with Oliver's demeanor as a
witness.
23 "[1 It is a recognized form of unlawful interference for an employer to
induce employees to sign statements repudiating [a] union." Deutsch
687
Respondent's discharge, plant closure, and blackballing
threats, because they involve loss of work and income,
were so permeative as, in the words of the Supreme Court,
to make "the holding of a fair election unlikely." Threats of
this nature, the Board held in Cohen Bros. Fruit Company,
166 NLRB 88, 90 (1967), "may well be sufficiently
pervasive in their impact to prevent a fair election and to
undermine a union's support." To the same effect see Luby
Leasing, Inc., supra.
In Cohen Bros. the Board's conclusion was based on
threats of the type here under consideration "directed at no
more than 2 employees in a unit of 15." Here, the "impact"
of the threats in preventing a fair election is deeper, having
been directed at four employees in a unit whose total
complement is five. Cf. Luby Leasing, Inc., supra.
I have also taken into account in determining to issue a
bargaining order the promises of benefit made by Al
Robbins, Respondent's president, to Fernando Carlo and
John Gonzalez, employees of Respondent, to dissuade
them from supporting the Union. These unfair labor
practices alone, because of their lingering effect, make a
fair election impossible and mandate a bargaining order.
De Luca Brothers, Inc., 201 NLRB 327, 334 (1973). Cf.
Federal Stainless Sink supra at 502.
Accordingly, my Order will require Respondent to
bargain with the Union upon request.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time employees em-
ployed by Respondent in its shipping, receiving, printing,
engraving, and production departments, excluding office
clericals, guards, watchmen and supervisors, constitute a
unit appropriate for the purpose of collective bargaining.
4. At all material times the Union has represented a
majority of the employees in the unit set forth in
Conclusion of Law 3, above.
5. By the following conduct Respondent has engaged,
and is engaging, in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
(a) Coercively interrogating employees concerning their
relationship to the Union.
(b) Threatening to close its,plant should the Union attain
recognition as the collective-bargaining representative of
its employees.
(c) Threatening to discharge and blackball employees
who support the Union.
(d) Promising benefits to employees to dissuade them
from supporting the Union.
(e) Soliciting employees to retrieve their union cards and
repudiate the Union.
Company, Electronic Components Division, 180 NLRB 8, 20 (1969), enfd. 445
F 2d 901 (C.A 9, 1971). See also Priced-Less Discount Foods, Inc, d/b/a
Payless, 157 NLRB 1143, enfd. 405 F.2d 67 (C A 6, 1968).
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The unfair labor practices engaged in by Respon-
dent, as set forth in Conclusion of Law 5, above, affect
commerce` within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER 24
Respondent, Fordham Equipment Company, Inc.,
Bronx, New York, its officers, agents, successors, and
assigns shall: -
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
attitude toward, relationship to, knowledge of, activities on
behalf of, or regarding any other matter relating to, Local
210, Production, Merchandising & Distribution Employees
Union, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or any other
labor organization.
(b) Threatening employees with plant closure, discharge,
blackballing, or with any other form, of reprisal, or
effectuating any such threats, for joining, assisting, or in
any manner supporting, Local 210, Production, Merchan-
dising & Distribution Employees Union, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization.
(c) Threatening to close its plant, to discharge employees,
to blackball employees, or to take any other form of
reprisal, or effectuating any such threats, should Local 210,
Production, Merchandising & Distribution Employees
Union, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or any labor
organization, attain recognition as the collective-bargain-
ing representative of any of its employees.
(d) Promising or granting benefits to employees to
dissuade them from joining, assisting, or in any manner
supporting, Local 210, Production, Merchandising &
Distribution Employees Union, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, or any other labor organization.
(e) Ordering, directing, urging, instructing, soliciting, or
in any other manner inducing or encouraging employees to
withdraw, retrieve, revoke, cancel, or nullify cards signed
by them authorizing Local 210, Production, Merchandising
& Distribution Employees Union, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other labor organization, to represent
them for the purpose of collective bargaining.
24 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
(f) Ordering, directing, urging, instructing, soliciting, or
in any other manner inducing or encouraging employees to
forsake, renounce or repudiate Local 210, Production,
Merchandising & Distribution Employees Union, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, or any other labor organiza-
tion.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the National
Labor Relations Act, as amended, or to refrain from any or
all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment in
conformity with Section 8(a)(3) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Upon request, recognize and bargain with Local 210,
Production, Merchandising & Distribution Employees
Union, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America as the
exclusive collective-bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time employees employed
by respondent in its shipping, receiving, printing,
engraving, and production departments, excluding
office clericals, guards, watchmen, and supervisors
respecting rates of pay, wages, hours, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its premises, copies of the attached notice
marked "Appendix." 25 Copies of said notice, on forms
provided by the Regional Director for Region 2, after
being duly signed by its authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.'
25 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."