Frank C. Varney Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1965

151 N.L.R.B. 280 (N.L.R.B. 1965)

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
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, Room 826,
51 SW. First Avenue, Miami, Florida, Telephone No. 350-5391, if they have any
questions concerning this notice or compliance with its provisions.
Frank C. Varney Co., Inc. and Printing Specialties and Paper
Products Union No. 447, International Printing Pressmen and
Assistants' Union of North America, AFL-CIO Case No. 02-
CA-1745. February 26, 1965
DECISION AND ORDER
On November 4, 1964, Trial Examiner Arthur E. Reyman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the Respondent had not
engaged in other unfair labor practices alleged in the complaint.
Thereafter, the Respondent filed exceptions to the Decision and a
supporting brief, and the General Counsel filed cross-exceptions to
the Decision, a supporting brief, and a motion to strike certain of
Respondent's exceptions.' The Respondent also filed an answering
brief in opposition to cross exceptions.
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 Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs of the parties, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the fol-
lowing additions and modifications :
On the basis of the credited testimony of employees Marshall and
Gill, the Trial Examiner found that Respondent's President Frank
C. Varney coercively interrogated these two employees in early
August 1963. However, the Trial Examiner's findings do not reflect
all of Gill's testimony bearing on his discussion with Varney. Thus,
Gill testified that, after urging him (Gill) not to "go along" or
1 This motion is denied, for we find that the exceptions challenged adequately comply
with the Board's requirements. Cf. Patrick F. Izza, d/b/a Pat Izzi Trucking Company,
149 NLRB 1097.
151 NLRB No. 38.
FRANK C. VARNEY CO., INC. 281
"be a hero" with the other union employees, Varney offered Gill a
weekly wage increase, first of $2 and, finally, of $7. Gill told Varney
he would "think this thing over." We find that Varney's offer of
a wage increase, in the context of the entire conversation, amounted
to a promise of benefit to Gill if he refrained from union activity.
We hold that Respondent thereby violated Section 8(a) (1) of the
Act .2
The Trial Examiner also found, and we agree, that Respondent
violated Section 8(a) (5) and (1) of the Act by refusing to recog-
nize and bargain with the Union on and after July 19, 1963.3 The
relevant facts, as found by the Trial Examiner, are these :
On July 17 and 18, seven of the eight employees in the unit stipu-
lated to be appropriate signed union authorization cards 4 At a
meeting on July 19, Union President Fishko informed Varney that
he had seven signed union application cards in his pocket, and re-
quested recognition and bargaining. Varney did not ask to see the
cards, question the authenticity of the signatures, assert that they
were coercively obtained, or express any doubt as to Fishko's repre-
sentation claim.5 Rather, he responded by stating, "That is a change,
and I guess I'll have to do some talking," and he agreed not to lay
off, discharge, or hire any employees until the parties negotiated a
contract. Nor was any challenge to the Union's claim niade by
Respondent's attorney in a talk with Fishko during the afternoon
of July 19. Not until 3 days later, on July 22, did the Respondent
inform the Union that it was rejecting the representation claim, and
that it had petitioned the Board for an election. On July 31 the
parties entered into an agreement for a consent election. Thereafter,
Respondent engaged in the interrogation of employees Marshall and
Gill concerning their union activity and promised Gill a wage in-
crease for refraining from his union activity, which conduct has
been found unlawful herein. In addition, Respondent forcefully
conveyed its aversion toward dealing with the Union by its preelec-
tion handouts and speech to the employees. Because of Respondent's
preelection conduct, the election held on August 23 has been set aside.
Respondent's conduct amply demonstrates that its refusal to bar-
gain with the Union since July 19 was not motivated by a good-
Such a finding is within the scope of the complaint ' s allegations and is consistent
with the Trial Examiner 's crediting of Gill's testimony on this matter . Also found
violative of Section 8(a) (1) by the Trial Examiner , but not included among his 8(a) (1)
findings recited in paragraph 6 of his "Conclusions of Law ," is Varney ' s coercive declara-
tion to employee Roach as reported in the Decision . The Trial Examiner has also failed
to include a cease-and-desist order appropriate for the 8 ( a)(1) violations found herein.
We shall provide for such an order.
9 The Trial Examiner has at times inadvertently referred to this date as June 19, 1963.
* The eighth employee , Orlando Cumberbatch , signed an authorization card on July 24,
1963.
5Indeed , on cross-examination , Varney admitted that he had "assumed" that Fishko
had written authorizations from the employees.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith doubt of the Union's majority status. When Fishko presented
his representation claim on July 19, Respondent in no way ques-
tioned the employees' genuine desire for representation as reflected
by their authorization cards. Soon after entering into the consent-
election agreement, however, it proceeded to undermine employee
support for the Union, and was guilty of conduct which violates
the Act. Under all the circumstances, and upon the entire record,
we find that Respondent's purpose in seeking the Board election was
not to verify any good-faith doubt of the Union's representative
status but, rather, was to gain time in which to undermine the
Union's majority and avoid its statutory bargaining obligation."
In arriving at this conclusion, we have taken into consideration
Respondent's explanation for declining recognition, but have found
it unpersuasive. As expressed in its letter to the Union of July 22,
Respondent relies upon an allegedly coercive "factual background
of relationship." This reference is apparently to the Union's antag-
onism toward the eight card-signing employees during the 1962
strike against Respondent. However, such activity as calling these
employees "strikebreakers" or "scabs," and even the evidence of the
related activity and of the Union's bargaining tactics which Re-
spondent sought to adduce at the hearing, falls short of establishing
coercion in obtaining the employees' authorizations in July 1963.7
And in the circumstances of this case, we do not believe that the
Union's prior activity created an honest doubt that its designations
were freely given such as induced Respondent to reject its repre-
sentation claim.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Frank
C. Varney Co., Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order, as modified herein.8
O See Joy Silk Mills, Inc, 85 NLRB 1263 , 1264-1265, enfd 185 F. 2d 732, 741-742
(C.AD.C.) ; Overnite Transportation Co, 129 NLRB 1026, 1033-1034, enfd 308 F. 2d
279, 283 ( C A. 4) ; Galloway Manufacturing Corporation , 136 NLRB 405 , 409 ; Traders Oil
Company of Houston, 119 NLRB 746, 750.
7 The employees themselves then took the initiative in contacting the Union. Their
testimony contains no indication that they signed the authorizations because of coercive
pressures.
The Order Is amended by relettering paragraph "1(b)" as "1( c)," and by inserting
the following as paragraph "1(b)":
Coercively Interrogating or making coercive statements to its employees concern-
ing their union activity or promising employees benefits for refraining from union
activity.
The notice to employees is amended by Inserting the following after the unit description:
WE WILL NOT coercively interrogate or make coercive statements to our employees
concerning their union activity or promise benefits for refraining from union activity.
FRANK C. VARNEY CO., INC. 283
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
A charge having been filed on October 24 , 1963, by Printing Specialties and Paper
Products Union No. 447, International Printing Pressmen and Assistants ' Union of
North America , AFL-CIO, herein sometimes called the Union, against Frank C.
Varney Co., Inc., herein sometimes called the Respondent , stating as a basis thereof
that the Respondent has engaged in certain unfair labor practices affecting commerce,
as set forth and defined in the National Labor Relations Act, 29 U.S.C., Section 151,
et seq., herein called the Act , the General Counsel of the National Labor Relations
Board, on behalf of the Board , on May 24, 1964, issued a complaint and notice of
hearing, the complaint alleging that the Respondent had engaged in and was engaging
in certain unfair labor practices within the meaning of Section 8(a)(1), (3), and
(5) and Section 2 ( 6) and ( 7) of the Act . Thereafter , on June 8, 1964 , the Respond-
ent filed timely answer to the complaint , effectively denying the alleged substantive
violations of the Act. On August 3, 1964, on the opening day of the hearing herein,
the Respondent on motion was permitted to file an amended answer which, on
motion of counsel for the General Counsel, was stricken insofar as a further separate
and complete affirmative defense to certain of the allegations of the complaint was
concerned , for the reason that the said affirmative defense set up matters not within
the jurisdiction of the Trial Examiner and are susceptible of determination only by
administrative action of the Board or the General Counsel. ' Counsel for the
Respondent reserved his exception to the ruling of the Trial Examiner.
On the issues raised by the complaint and the answer thereto, and pursuant to notice,
this case came on to be heard before Trial Examiner Arthur E Reyman at Newark,
New Jersey , on August 3, 1964, and was closed on August 5. Each party was repre-
sented at the hearing , and was given full opportunity to be heard , to examine and
cross-examine witnesses , to introduce relevant evidence , to present oral argument,
and to file briefs . Counsel for the General Counsel and for the Respondent filed briefs
which have been carefully consideied.
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 is, and has been at all times material herein, a corporation duly
organized under, and existing by virtue of, the laws of the State of New Jersey, at
all such times the Respondent has maintained its principal office and plant at 107
Trumbull Street , Elizabeth , New Jersey ; and is now, and during all of such times
has been, continuously engaged at said plant in the manufacture , sale, and distribu-
tion of paper products . In the course and conduct of the Respondent 's business oper-
ations during the 12 months immediately preceding the issuance of the complaint
herein, said operations being representative of its operations at all times material
herein, the Respondent caused to be manufactured , sold, and distributed at the said
Elizabeth plant, products valued in excess of $50 ,000, of which products valued in
excess of $50,000 were shipped from the said Elizabeth plant in interstate commerce
directly to States of the United States other than the State of New Jersey.
The Respondent is, and has been at all times material herein , an employer engaged
in commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and at all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
'The Respondent 's amended answer urges In effect that the refusal - to-bargain allega-
tions of the complaint should be dismissed , inasmuch as , at the time the charge was filed,
it was precluded by the Board ' s policy in Louis Aiello et al ., d/h/a Aiello Dairy Farms,
110 NLRB 1365 This contention is without merit Prior to the issuance of the com-
plaint the Board rendered its decision in Bernel Foam Products Co , Inc , 146 NLRB
1277, specifically overruling the doctrine of the Aiello case and holding that a union
could assert its majority status by the filing of an 8(a )( 5) charge, even though, as in
the instant case , it had proceeded to an election and lost.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Questions presented
1. Whether since on or about July 19, 1963, the Respondent has refused to bargain
collectively with the Union as a representative of its production and maintenance
employees, in violation of Section 8(a)(5) and (1) of the Act.2
2. Whether the Respondent during the months of July and August 1963 inter-
rogated employees as to their membership in and activities on behalf of the Union,
warned its employees that it would close its Elizabeth, New Jersey, plant in the event
of unionization, and offered a certain employee a wage increase and other benefits if
he refrained from becoming or remaining a member of the Union, all in violation of
Section 8 (a)( I) of the Act.
3. Whether the Respondent withheld sick pay from its employee Leon Roach in
violation of Section 8(a)(1) and (3) of the Act because he joined or assisted the
Union, and in order to discourage membership therein.
B. Background
On February 8, 1962, the Union was first certified as the collective-bargaining rep-
resentative of the employees of the Respondent in the unit described in footnote 2.
Thereafter, the Union and the Respondent engaged in collective bargaining without
reaching agreement, and on March 6, 1962, a strike occurred, participated in by a
number of the Respondent's employees. During the course of the strike, which lasted
until November 1962, some of these employees were replaced by the Respondent.
The new employees merged in the unit as above described. As of March 6, 1962,
there were 11 employees in the bargaining unit and 6 of them went on strike. James
Battle, Philip Cargyle, Richard Crudop, King Hubbard, Junior Hubbard, and Livings-
ton Moore were strikers who were never returned to work. The parties continued
to meet and to engage in collective bargaining until about May 25, 1963.
Because of the change in the identity of the Respondent's employees within the
unit , the Union commenced new organizational activity during the month of June
1963.
On July 17, 1963, Orlando Cumberbatch, Laurie Gill, Sinclair Marshall, and Leon
Roach, employees of the Respondent, called on Frank C. Varney, president of the
Respondent, to discuss wage increases, sick leave, insurance benefits, and other mat-
ters relating to their terms and conditions of employment. Later that same day, Gill,
Marshall, and Roach called on Sol Fishko, the president of the Union.
While in Fishko's office, each one of them signed an application for membership
in the Union 3 and received blank application cards to circulate among other employ-
ees of the Respondent. Cards were signed by four other employees on the following
day, July 18, the cards being returned to Fishko by Roach. On July 18, Fishko held
cards dated July 17, 1963, signed by Laurie Gill, Sinclair Marshall, and Leon Roach
and on the following day, July 18, held application cards signed by Antonio Dorta,
Rafael Dorta, Antonio Osario, and Amelia Sosa.4
Of the Respondent's employees, Laurie Gill, Sinclair Marshall, Leon Roach, Amelia
Sosa, and Orlando Cumberbatch did not go out on strike in Match 1962. Replace-
ments of strikers employed by the Respondent now are Antonio Dorta, Rafael Dorta,
and Antonio Osario.
2At the hearing, it was stipulated that all production and maintenance employees
employed by the Respondent at the Elizabeth plant, but excluding office clerical employees,
watchmen guaids, professional employees, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
3 The form of the application reads as follows:
I hereby request and accept membership in the Printing Specialties and Paper Prod-
ucts Union No 447 and authorize it to represent me, and in my behalf to negotiate
and conclude all agreements as to hours of labor, wages, and all other conditions of
employment.
4 At the bearing, it was stipulated that as of July 19, 1963, the bargaining unit in-
eluded Orlando Cumberbatch, Antonio Dorta, Rafael Dorta, Laurie Gill, Sinclair Marshall,
Antonio Osario, Leon Roach, and Amelia Sosa. There is in evidence a union application
card signed by Cumberbatch dated July 24 ; its authenticity is admitted. The appropriate-
ness of the bargaining unit was stipulated between the parties at the hearing. It has
not affirmatively been shown that another unit would be the appropriate unit.
FRANK C. VARNEY CO., INC. 285
C. The course of bargaining between the parties
During the course of the morning of July 19, 1963, Union President Fishko and
Union Organizer Paul Padula called upon Respondent's President Varney for the
purpose of asking recognition of the Union. At the request of Fishko, Roach, who
had been designated shop steward, was called into the meeting. Fishko advised
Varney that he held at that time and had in his pocket union application cards signed
by seven of the eight eligible employees, and requested a date upon which to enter
into negotiations for a collective-bargaining agreement. According to Fishko, Varney
commented, " . that is a change, and I guess I'll have to do some talking," to which
Fishko replied, "Yes, we will have to do some talking and some fast talking." Fishko
said that Varney agreed to his request that pending negotiations no new employees
be hired and that no employee would be laid off and discharged until an agreement
was reached on a contract. Upon Fishko's further request that they begin negotia-
tions, Varney informed him that he wanted to consult his attorney, Hugh Husband,
and tried unsuccessfully to reach the latter by telephone.
Later on the same day, July 19, after Varney had talked to him, Attorney Husband
in turn spoke to Fishko on the telephone, commented on the situation, and tentatively
agreed to meet with Fishko on July 24. Fishko claims that Husband indicated that
it would be a bargaining meeting. Husband testified that he did not arrange for a
bargaining meeting; that he arranged for a meeting and made it very clear by the
things he did not say to Fishko that it was just a meeting. Husband and Fishko
agree that during the course of their telephone conversation, Husband remarked that
there had been a change in the situation. Husband made this remark, he testified,
having in mind that Fishko was claiming to represent the people he had scorned;
that is, the eight employees he previously had characterized as strikebreakers and
scabs.
Under date of July 22, 1963, Attorney Husband addressed a letter to Union Presi-
dent Fishko, as follows:
As I indicated in our hurried phone conversation, this past Friday, there
apparently has been a "change in the situation" between your union and the
above Company. Specifically, after a cessation of negotiations, and following
the NLRB's dismissal of the numerous ULP charges you filed against the com-
pany, your union now claims to represent the same employees that you formerly
described as "strike-breakers" and "scabs."
Following that conversation, Mr. Varney and I discussed at length your claim
in light of the Federal labor law and the factual background of relationship
between your union and the Company. Mr. Varney concluded that in view of
those factors (including the law's prohibition against dealing with a union which
does not represent a majority of the employees) he should petition for a NLRB
election, so that the employees involved can make their choice as to union
representation by secret ballot, in an atmosphere free of threat, coercion or
intimidation.
Mr. Varney has since petitioned for that election, and we should have an
informal conference at the Board's Region Office in the immediate future to
arrange time and other particulars.
Because of this development, there appears to be no real purpose in meeting
with you on the 24th of July, as the Varney Company naturally cannot honor
your bargaining claim in the absence of a NLRB election and certification. How-
ever if you think it may expedite the arranging of an election, I would be willing
to meet with you at some other mutually convenient time prior to the informal
conference.
On the same day, Varney filed a petition with the Regional Director (Case No.
22-RM-l48) The parties thereafter entered into an agreement for consent election
in Case No. 22-RM-148 and an election was conducted, pursuant to that agreement,
on August 23, 1963. The tally of ballots showed that of eight eligible voters, four
cast their votes for the Union and four cast their votes against the Union. By a
report on objections and direction of second election, dated October 7, 1963, the
Regional Director found that the Respondent had interfered with the employees'
freedom of choice in the election, and ordered that the results of the election be set
aside and "a new election will be conducted at a date, time and place to be fixed"
by the Regional Director.
On November 18, 1963, Union President Fishko sent the following Western Union
telegram to Frank C. Varney Co.:
Request collective bargaining meeting at earliest possible date suggest Novem-
ber 25 10 a .m. union office please confirm by wire.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 20, 1963, Attorney Husband addressed a letter to Fishko, registered
mail, as follows:
This is in response to your telegram to the above employer which requested a
collective bargaining meeting and suggested meeting on November 25.
As we do not recognize you as the majority representative of the employees
of the Varney Co., we cannot participate in any collective bargaining negotia-
tions with you.
Moreover, we would consider it quite improper, both on our part and your
own, to participate in such negotiations during the pendency of the representa-
tion proceedings at the NLRB. This last is particularly true in the light of
the fact that the secret election conducted in August indicated that you do not
represent a majority of the Varney employees.
While we neither recognize nor will negotiate with you pending the resolution
of the repiesentation question, I am willing to meet with you (as I was in last
July) if it will aid in expediting the handling of the problems blocking the
resolution of that representation question.
If you desire a meeting for that purpose, please contact me.
D. The July 17 meeting: Roach's claim for sick pay
The complaint alleges, and the answer denies, that on or about August 30, 1963,
the Respondent withheld certain employee benefits, including sick pay, from its
employee Leon Roach because Roach joined or assisted the Union and engaged in
other concerted activities for the purpose of collective bargaining, or mutual aid or
protection.
According to the testimony of Roach, when he, Cumberbatch, Gill, and Marshall
visited Varney in his office on July 17, 1963, he asked Varney about wage increases
which he said had been promised the employees for a long time, job security, vaca-
tions, and holidays. According to him, Varney said that every employee "that worked
for him over a year's period would get three days sick pay"; that Varney told him and
the others that "we would get certain-what days, holidays, and we would get vaca-
tion , two weeks for every year that we worked", that "every employee in the shop
would get a raise with the exception of me until they come to my standard of the
rate of pay I was getting. He also said that there wouldn't be no raise for me."
Gill testified that at the July 17 meeting Varney said "he would give us three days
sick leave with about five holidays every year." Marshall testified: "Mr. Varney
said he would allow us, all who worked for the Company one year, and one week
vacation, three days sick. This is what I asked him." Cumberbatch came in late to
the meeting . He displayed faulty recollection. He did say that when he went into
the office on this particular day Varney was speaking about "three days sick pay for
employees who had been employed for over a year."
Roach was not at work on August 26, 27, and 28. On August 29, the day he
returned to work, he offered a doctor's certificate to Varney, who inquired what it
was, and when Roach told him it was a note from his doctor, Varney said that he
did not want to see it. Roach retained the certificate, signed by one Dr. Harry R.
Lehman, which read: "Mr. Leon Roach, 802 Lincoln Place, Brooklyn, N Y., has been
under my care and confined to his home since 8/26/63 due to: intestinal grippe. He
will be unable to return to work until the end of the week " Roach further testified
that upon receiving his paycheck on the following Friday, his pay "was short for the
3 days I was out sick." He said that when he questioned Varney the latter replied,
"Well, you didn't work. I didn't pay you. I didn't sign a contract with you. And
you brought a Union in here over my head." He said that he further told Varney
that he did not think "that was done in a manly way because you had just a week or
two previous agreed to pay us 3 sick days for every year that we worked, and I didn't
think that was a manly way of doing that."
Varney testified that when three employees, followed by Cumberbatch, came into
his office, they wanted to know what was going on as far as the wage proposal and
pay wages were concerned and also asked about Blue Cross, sick pay, and vacations.
He said that in reply he told them that the proposals made to the Union had been
put into effect as to vacation and pay raises; that in response to their question as to
when they were going to get another pay raise and how much, he told them that there
would be another pay raise the first of August; he said that the reason was that the
first pay raise was put into effect the year previous to the first of August 1963, and
FRANK C. VARNEY CO., INC. 287
the proposal made to the Union at that time was that the following year there would
be another pay raise and the amount was stipulated. Varney testified further that:
Under the proposal made to the Union by the Respondent, and at that time, there
were certain employees receiving more in wages than proposed for the work they
were doing; Roach was one of them; he told Roach he would not be getting a pay
raise until such time as the people or the wage scale in his classification reached the
pay that he was then receiving; he further told the employees that the Respondent
had proposed 3 days' sick pay to the Union, which had been rejected; and the
Respondent inferred that if a wage increase were put into effect as requested by the
employees at this meeting, it would bring on charges by the Union that such increase
would constitute an unfair labor practice. Varney said that no employee of the
Company within the bargaining unit had ever received sick pay.
I find that on July 17, 1963, in response to employee questions concerning their
benefits, Varney explained the proposals he had made to the Union, and being under
the impression that he could not unilaterally grant sick pay or do anything other
than he had already offered the Union, he told these individual employees that he
could not put the sick pay into effect until he knew where he stood with the Union.
He certainly made clear that the wage increase he had put in effect and the one he
intended to make were in accord with his proposal to the Union before bargaining
broke off.
I find that Roach was not entitled to sick pay and that Varney did not promise to
give it to him. I did not gain the impression from the employee witnesses that they
were led to believe that Varney offered Roach sick pay, on the contrary their testimony
indicates that Varney was talking about the proposals he had made to the Union,
which had been rejected.
0
E. Interrogation; promises of benefit
About 2 weeks after the meeting of July 17 in Varney's office, Varney approached
employee Sinclair Marshall while the latter was at work on a baling machine and
engaged him in conversation, during the course of which Varney questioned Marshall
concerning the extent of his participation in the Union. According to the testimony
of Marshall, Varney said to him, "Marshall, the Union's back in here last year";
Marshall replied that he was not there last year "when it was in here"; that Varney
asked whether the Union wished to have cards signed for the Union again to which
Marshall replied in the affirmative, whereupon Varney asked, "How far am I in the
Union?" to which Marshall replied, "All of us signed the cards up." Marshall said
that Varney then remarked, "Never mind who signed the cards," that they would
have another election, a secret vote, and nobody would know who Marshall voted for;
he then turned to Marshall and said, "The Union wants what I don't have Loan me
$5.00." Marshall replied that he did not have it. Varney then said, "That's just what
the Union wants. If the Union should come in here, we will have to close the doors
up." On cross-examination, Marshall testified.
Q. [By Mr. HUSBAND.] Didn't Mr. Varney state that sometime before the
election, that what the Union wants, he didn't have?
A. Yes.
Q. When Mr. Varney spoke to you about the $5 loan, didn't he say-when you
said you didn't have the money and couldn't give him the loan, didn't he say
that that was like his situation with the Union, that the Union was asking for
more than he had?
A. I didn't put it that way. He just wanted me to loan him $5. I said, "I
don't have it."
Q. Then what did he say?
A. He said, "That's just what the Union wants, just what I don't have, because
what you don't have, you can't give.
Although his direct testimony was not refuted by Varney, I take it the cross-
examination by counsel for the Respondent indicates what Varney would have said
had he testified. However, the fact remains that the interrogation of Marshall con-
5 The proposed contract in 1962 was contemplated for a period of 3 years . The pssy
raises referred to by Varney were those that the Respondent had put into effect as his
offer to the Union at the time of the negotiations in 1962, and were not the demand of
the Union made to him at that time
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning the signing of union cards and the reported remark of Varney concerning
closing the plant's doors, remains uncontradicted, except that Varney did deny in
general terms that he ever threatened to close the plant.
Employee Laurie Gill testified that about 2 weeks before the election of August 23,
1963, he went to Varney's office for an order to continue work; Varney was on the
telephone when he knocked at the door and then Varney requested him to be seated
and asked him why he had come to the office or what his problem was. Gill said
he had no problem, whereupon Varney asked him why he had to come with the
other fellows if he had something to talk to him about and why he should not come
by himself; Gill replied, "Well, we talk about this thing and I wanted to come, so the
others saw when I was coming, they came along." Then, according to Gill, Varney
questioned him as to what he thought the other employees wanted to do and whether
they wanted "to go about any union" and said that he hoped Gill would not go along
with them because "he wouldn't like me to be a hero with them." Gill testified:
Q. [By Mr. MASZRO.] Would you repeat what you said about being a hero?
A. He asked me what I think the other fellows want to do. He hoped they
aren't thinking about a union, he said, "I wouldn't like you to go along with
them. Would you like to go along with them?" I said, "I don't have to do what
they want to do," he said, "I wouldn't like you to be a hero with the other
fellows."
Gill was not cross-questioned regarding this conversation with Varney, nor did Varney
testify concerning it.
The testimony of Gill and the testimony of Marshall was neither rebutted, denied,
nor controverted by the Respondent at the hearing, and therefore stands unrefuted
on the record.
F. Company statements; speech directed to employees; alleged threats to close plant
As noted above, a secret ballot election was conducted on August 23, 1963.
It was stipulated between the parties hereto that three statements regarding the
position of the Company in respect to union representation were distributed, and that
Attorney Husband delivered a speech to the employees on August 22, 1963. This
speech (also read to the employees in Spanish by a third party) was as follows:
I am reading Mr. Varney's speech at his request. He is so close to all of you,
and this Friday means so much to him that he thought it best that I present it.
[SPEECH]
You have an immense responsibility this Friday. Only you will vote in this
election and yet your votes may control the Varney Company's future.
By now all of you should know Mr. Varney just as he knows you. You have
worked together, laughed together, partied together, but most of all, you have
worked together as a group and he has worked with you.
Frank Varney has faith in you. He believes that if you know the facts that
you will vote NO this Friday. He respects your intelligence and believes you
won't be fooled by empty promises from a Union which made the same promise
a year ago and never came through on them. He won't make promises, but
he will give you straight talk and facts.
He is a union man himself, has work with 447 for years, [sic] and went
through over a year of bargaining and a six month strike 447 called. With all
that experience, he thinks there are many reasons 447 wouldn't be good for you.
For one thing, the contract that 447 insisted on last year would require all of
you to join the Union and pay dues and initiation fees whether you wanted to
or not. In the first year of the contract, each of you would have to pay the
Union almost $100.00, and he does not think Local 447 is worth any of your
money, much less $100.00.
Secondly, if you were Union members you probably would be subject to
Union rules about assessments, about attending meetings and other things that
might interfere with your private time.
Third, if 447 was here and we had the contract they insisted on we would not
be handling grievances and gripes directly anymore-we would get involved in
the red tape of having a steward here and also possibly someone from New York
City sticking his nose in our business. Mr. Varney has kept his door open for
your gripes and suggestions and has always attempted to deal with you fairly
and directly in the past. We don't think we need outsiders telling us how to
do things.
a
FRANK C. VARNEY CO., INC. 289
I am not saying that the Varney Company is perfect. You know it is not and
we know it too. But Varney has tried his utmost to be fair to you under the
difficult circumstances caused by the union. Look at the record. Last year the
Union ran the company into debt in fighting the strike and in defending itself
against the unjustified charges that the Union filed at the Labor Board. 447
forced him to spend time that would have been better spent in making this a
better company for him and you. Yet even then he made improvements in your
wages that the Union tried to keep from you.
This year, because of this election, he's not allowed to do anything until after
the election is over, even if he had planned to do so.
We know the company is not perfect but from what we saw last year, 447
will not be the solution to whatever is wrong here For example-some of you
may have problems about your classification, the money you get or about the
work in your classification. I can't see how the Union would change that, as the
Union contract has a classification system, with different pay and work for each
classification and layoffs by classification.
But these reasons while important, aie minor compared to the TWO BIG
REASONS for voting NO. (1) On the basis of what happened here, Mr.
Varney is afraid that 447 spells nothing but trouble and (2) 447 in his opinion
doesn't deserve to represent you on the basis of what they did last year. Bringing
447 in here because of some little gripes you may have is like cutting off your
arm to cure a wart. To Frank, it just does not make sense.
First, if the Union wins this election, we will have to go through the same
bargaining we did last year. We bargained and bargained with 447 last year
but without success. 447 wanted so much more than this company could afford
to pay that the Union and he were far apart on almost all the major issues. Last
year, he had no choice but to take the strike that the Union called as he felt that
the Union terms would have put the company out of business in a few months.
He did not want a strike-he never wants cne, but at least by taking the strike
last year he was able to continue in business; he felt then and still feels that if
he had agreed to the Union's impossible demands, he wouldn't be in business now.
Last year was a bitter experience for Frank Varney, but he learned a lot.
From what he's learned of 447, he's afraid the same thing will happen again
this year if 447 wins this election. That when he refuses to agree to the impos-
sible demands, the Union will call a strike to force him to give in to those
demands. He does not want a strike.
Remember, he is not saying this to scare you, nor is he predicting it will
happen-he is saying it because he is scared from what he saw last year that
if the Union wins the same things that happened in 1962 will occur again. He
hopes and prays you vote NO so we will not have to repeat 1962, nor have to
live in fear of it happening again.
You cannot get blood out of a stone. Frank knows how much this company
has and he knows that the money isn't there to meet the Union's demands that
were made last year. If you want to he will show you his books and show them
to the Union or to some outsider. The money just isn't there and if he does
not have it he cannot agree to give it to someone else-you, the Union or any-
body else.
Now, maybe 447 will suddenly change its approach and be reasonable-but
from what he saw of 447, last year, Frank thinks this is wishful thinking.
The other major reason you should vote NO, in Frank's opinion is that he
thinks 447 has been so two-faced and undependable to both you and the people
who were on strike last year that it doesn't deserve your vote.
Remember this Union has sued the Millar company and asked the Court to
force Millar to re-establish the converting department in New York City. If the
Union was successful in this the effect would be that the Varney Company would
be down the drain. It does not make sense that this same Union that is trying
to represent you would take away your jobs, here for if Millar had to establish
the New York City converting department, Millar would not then deal with us
and Varney would go out of business.
DON'T EVER FORGET Local 447 is the same Union-that called you
strike-breakers last year-that tried to get the strikers back in here at the sacri-
fice of your jobs (because they would have had more seniority than you),-
that threatened you and followed you in cars when you continued working-that
tried to keep Frank from giving you vacations and wage increases a year ago-
that filed unjustified charges that the Labor [Board] threw out after he had to
spend money and lots of time defending himself.
783-133-66-vol. 151-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Remember in Frank's opinion , this same Union that tried to cut your throat
wants your vote.
Remember also what happened to the people who listened to the Union's
promises last year. They went on strike and could not get unemployment com-
pensation . And those people were out of work for a long, long time and received
nothing but strike benefits (which Frank believes was only $27.00 per week).
I know that if you judge this Union on results rather than promises, you will
vote NO.
Remember, this Friday you vote for or against Local 477 BY SECRET BAL-
LOT, and NO ONE WILL KNOW HOW YOU VOTED.
Don't forget, also, that regardless of election results, none of you at any time,
now or in the future, will be either benefited or discriminated against because
you did (or did not) sign a Union card; you have the right to do these things,
and Varney will always respect it, just as he did and is doing now.
Secondly, and even more important, don't forget YOU CAN VOTE "NO"
EVEN IF YOU SIGNED A CARD AND NO ONE EVER WILL BE ABLE
TO DO A THING TO YOU, BECAUSE YOUR VOTE WILL BE COM-
PLETELY SECRET, and the Government protects his right in every respect.
Remember also, voting NO doesn't keep you from getting another union here.
As a union man, Frank is not against unions. But he's seen how 447 caused
nothing but trouble last year. 447 doesn't deserve your vote
Frank, Gerry, all of us-hope and PRAY-that you vote NO.
On August 20, 1963, the Respondent distributed the following communication to its
employees:
August 20, 1963
This Friday is the most important day in this company's history. You will
then decide whether this company will have to continue facing the impossible
union demands that were thrown at us last year. Since only you will make that
important decision, I want you to know exactly how I feel about the election.
By now, you've probably heard a lot of sweet-talk and big promises from 447.
I think those promises are meaningless : 447 made a batch of them in 1962 to
win the election then, and didn't come through on one of them, and the people
who believed those promises, and followed the union, went on a strike that they
later gave up on and were out of work for a long time (and were not getting any
unemployment compensation for when they were not here). Now, that's what
happened to 447's promises last year: all promises, no results.
I won't give you any promises: just straight talk, my honest opinions, and facts.
As a former union member myself, I hope and pray that you vote NO this
Friday. Why? First, because from what I went through in 1962 with this
union, I think it would be very bad for the company, for me and for you if
447 was your bargaining representative. I'll explain why my past experiences
with 447 makes me fear THE EFFECTS OF A UNION ELECTION VICTORY.
If 447 wins the election I will bargain with it, just as I did last year.
Last year 447 wanted so much more than I could afford to pay that we never
agreed on most of the major issues; early in the bargaining, the union called a
strike-before they heard my offer-to force me to agree with their proposals
I didn 't want that strike as I knew that it niiglit force me out of business, BUT I
HAD NO CHOICE BUT TO TAKE THE STRIKE RATHER THAN ACCEPT
THE UNION'S TERMS, for I knew the company couldn't afford the union terms
and that we'd be out of business in a few months if I accepted the union's
contract.
After the bitter experience of last year, (with the union filing unjustified charges
and generally causing me trouble), I'm afraid if 447 wins, the same old business
that we went through in 1962 will happen again : 447 will refuse to give me a
contract that the company can afford and survive with (last year we argued and
pleaded with them for a realistic contract so the business could continue, but
they never did so). Eventually, if I refuse to go along with their unrealistic
proposals, they will call you out on strike, in hopes of forcing me to give in
to their demands. Now, dcn't get me wrong: I'm not saying this to scare you,
or predicting it will happen, I'm just saying that I'M AFRAID IT WILL HAP-
PEN BECAUSE IT IS EXACTLY WHAT HAPPENED LAST YEAR, AND
I HOPE AND PRAY WE DON'T HAVE TO GO THROUGH THAT AGAIN.
You all know that I don't beat around the bush and I always try to be direct
with you. Well, you can't get blood out of a stone, and this company could not
have stayed in business if it had agreed to even the union's least expensive pro-
posal last year. If you doubt me, or want proof, you can look at the company's
FRANK C. VARNEY CO., INC. 291
books, or have the union do so, or have some outsider do it. I've got nothing
to hide : if the money is not there, it's not there , and since I don 't have it I can't
agree to give it to someone else-you, the union , or anyone else.
Now, maybe , if the union wins this Friday, it will go along with a contract I
can afford. Maybe so, but from what I saw from a full year of negotiating,
that's wishful thinking . On the basis of my experience , I'm afraid we'll end up
going through the same thing that we did last year.
In my opinion , 447's past ACTIONS SHOWS IT DOESN 'T DESERVE YOUR
VOTE. Another reason you should vote NO is that 447 has been so two-faced
and undependable to the people it says it represents that it doesn ' t deserve
your vote.
Last year 447 sued the Millar company and asked the court to force it in effect
to close down the Varney Company and reestablish the converting department at
the Millar Co. If the union is successful in this court action, the Varney Com-
pany would be down the drain-so the same union that wants to represent you
is trying to get your jobs. It doesn't make sense , in fact, I think tile union is
using you as pawns to get at the Millar Company and me.
You should also remember that 447 was very much against you people last
year because you wouldn 't go on strike ; now it turns around and claims to be
your friend.
You Should Never Forget: Local 447 is THE SAME UNION that called
you strikebreakers and scabs last year-that tried to get the strikers back in here
at the sacrifice of you and your jobs,-that threatened you and followed you in
.cars when you continued working-that tried to keep me from giving you vaca-
tions and wage increases a year ago-that filed unjustified charges at the Labor
Board which cost me a lot of time and money to defend , until the Board ruled
against them.
Now this same union is turning around and asking you to support it. After
trying to cut your throat , now they want your vote.
When you think about this union , remember what happened to the people that
went with them last year . They promised those strikers plenty, but they didn't
come through on the promises , and some of those people were out of work for a
long, long time . Don't let this union tell you that they'll get you jobs, because
,they didn 't even take care of the employees who went on strike last year.
Believe me , if you judge this union on results instead of promises, I know
you will vote NO.
Remember , this Friday you will have the chance to vote for or against Local
447 BY SECRET BALLOT , and NO ONE WILL KNOW HOW YOU VOTED.
Don't forget , also, that regardless of election results, none of you at any
,time, now or in the future , will be either benefited or discriminated against
because you did (or did not) sign a union card: you have the right to do these
things, and I will always respect it , just as I did and am doing now.
Secondly, and even more important , don't forget YOU CAN VOTE "NO"
EVEN IF YOU SIGNED A CARD AND NO ONE EVER WILL BE ABLE
TO DO A THING TO YOU, BECAUSE YOUR VOTE WILL BE COM-
PLETELY SECRET, and the government protects this right in every respect.
I hope and pray you vote NO.
,On August 21 or 22 the following written statement was sent or given to the
employees:
Some further questions have arisen about the election that I'll try to answer,
First,
THE EFFECT OF HAVING A UNION HERE
You can 't judge what having a union is like from your experience last year.
Why? Because the union , although it technically represented everyone here,
was more interested in protecting the strikers than in you (remember , they called
you strikebreakers , and tried to take away your jobs).
If the union does win this election and we had the standard union contract
,they insisted on last year:
1. Everyone working here would have to join 447 to keep his or her job.
2. Everyone would have to pay 447 dues: $4 .00 a month per person, and
$50.00 initiation fee. If someone failed to pay the dues, the union could
force me to fire him or her.
3. As union members, apart from the contract , you could also be subject
to union assessments , etc., and they might call you out on your own time
for special meetings , parades, or to support other strikes.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. When there are layoffs, under the union contract they are done by
seniority IN THE WORK CLASSIFICATION ( not by plant seniority).
5. You and I would not handle grievances and gripes directly . they would
go through a "steward" in the shop , and possibly someone from the union,
headquarters would get involved.
WHY DOES THE UNION WANT IN HERE SO BADLY
There may be other reasons , but I think a big one is MONEY . If the union
wins here , with the regular contract the union insisted on all last year, all of
you would have to join. The union would get from the eight of you a total of
almost $800.00 in the contract 's first year : that 's a whale of a lot of money for
a shop the size of this one ... just about $ 100 00 per person for that year, which
comes to each of you paying the union 5 cents an hour. I DON'T THINK
447 IS WORTH IT.
In my opinion , another reason the union wants in here is to help its fight
against Millar: by organizing you, the union can (by calling a strike here) put
pressure on Millar to reestablish the Converting operation in the New York
plant. I THINK 447 IS USING YOU TO GET AT THE MILLAR COMPANY.
WHAT COULD HAPPEN IF THERE WAS A STRIKE
1. Strike Benefits.
If 447 called a strike, as they did in 1962, those of you who didn 't work prob-
ably would have to picket to get the union 's strike benefits (which I was told
were $27.00 per week). If you didn ' t "join" the strike by picketing or doing
what the union wanted you to do, for example , if you just stayed home, refused
to cross the picket line , but wouldn 't picket, I don 't believe the union would
give you any of those strike benefits.
2. Unemployment Compensation.
In New Jersey you do not get ANY compensation if you're on strike, OR IF
YOU REFUSE TO CROSS THE PICKET LINE AND JUST STAY HOME.
Therefore , if you stayed out during the strike , and didn 't join the picketing, etc.
I don 't think you 'd get any money ; if you did join the strike , you'd get only the
union's strike benefits, $27 . 00 weekly, or whatever they are.
While there is a strike , I have the right to continue operating , (as I did last
year ) and the right to hire replacements for the strikers ( which 1 did last year-
in fact , many of you are the replacements for the 1962 strikers ). Once strikers
are replaced ( as they were last year ) they lose their jobs (just as they did last
year ); while they can apply for a new job with the Company , they can be treated
as new applicants.
Now, if there are any other questions , ask me and I'll try to answer them.
Remember , though , that what I've covered here is important , the crucial points
were covered in my first letter.
I hope and pray you vote NO because : 1. I fear , from what I saw of 447
in 1962, what would happen to the company , you and me if it won this Friday;
and 2. 447 , after in 1962 calling you strikebreakers , threatening you and trying
to take your jobs away, doesn 't deserve your vote in 1963.
Your vote is completely SECRET . I hope you vote NO.
On August 23, 1963, the date of the election , a written statement was sent to the
employees:
VOTE "NO"
Today is the day of DECISION.
Aug. 23, 1963
This afternoon you will vote in the very important Labor Board election.
You should all vote-don 't let a minority decide.
Your vote is completely secret and no one will know how you voted, and you
can vote "NO " whether you sign the card or not and no one can do a thing to
you about it.
I know you will not be fooled by the Union 's empty promises and that you
will remember how this Union treated you last year and how this Union failed
to fulfill its promises to the men who went on strike last year.
When you vote, remember to mark an " X" in the "NO " or "YES " box. Do
not make any other mark on the ballot.
For the sake of all of us, I hope and pray you will vote NO.
All three of these letters were on the letterhead of Frank C. Varney Company, Inc.
FRANK C. VARNEY CO., INC. 293
The General Counsel contends that this speech and the statements or communica-
tions distributed or sent to the employees convey, in effect, threats to the employees
to close the plant or go out of business . Other than this , the General Counsel relies
,on the reported remark of Varney to Marshall during the course of the conversation
which occurred about 2 weeks after Marshall had signed a union application card
that "we will have to close the doors up" if the Union "should come in here," and
the vague testimony of Cumberbatch to the effect that during the months of July and
August he overhead Varney speaking to certain individuals-
Well, he said the demands of the Union , that he could not afford to meet the
demands of the Union , and the things that the Union has done before, like
pulling the strike and so on and so forth . And if the Union wins the election,
he would be forced to go out of business-
,constitute the only testimony or direct statements by any representative of the
Respondent that the plant would be closed at any time. I am not inclined to place
-too much weight on this fragmentary testimony of Marshall , and I think that Cum-
berbatch strained his recollection as to what Varney said , if anything, concerning the
-possibility that the Respondent would go out of business.
As examples of unlawful conduct by repeated threats to close the plant , the follow-
ing excerpts from the handout dated August 20, 1963, is given:
After the bitter experience of last year (with the Union filing unjustified charges
and generally causing the trouble ), I am afraid , if 447 wins , the same old busi-
ness that we went through in 1962 will happen again, 447 will refuse to give me
a contract that the Company can afford and survive with it. (Last year we
argued and pleaded with them for a realistic contract so the business could con-
tinue but they never did so. ) Eventually , if I refuse to go along with their
unrealistic proposals , they will call you out on strike in hopes of forcing me
to give in to their demands . Now don 't get me wrong ; I am just saying that
I'M AFRAID IT WILL HAPPEN BECAUSE IT IS EXACTLY WHAT HAP-
PENED LAST YEAR AND I HOPE AND PRAY WE DONT HAVE TO
GO THROUGH THAT AGAIN.
Two examples from the speech by Attorney Husband are given as containing veiled
threats , a remark that "on the basis of what happened here, Mr. Varney is afraid that
447 spells nothing but trouble ," and the statement in the speech that-
Last year he had no choice but to take the strike that the Union called, as he
felt that the union terms would have put the Company out of business in a
few months.... From what he has learned of 447 he 's afraid the same thing
will happen again this year if 447 wins this election . Then , when he refuses to
agree to the impossible demands, the Union will call a strike to force him to
give in to those demands."
The General Counsel contends that the entire tone of the speech is coercive , suggest-
ing, as it does , that a victory for the Union would result in a strike and spell the
,end of the Company.
It takes only a reading of the handout communications distributed to the employ-
ees and the speech of Husband to show that they were written and directed to the
possibility of what the Union would demand if it became the representative of the
•employees in the bargaining unit. Considered either severally , or by extracts isolated
from context , I cannot find the threats present which are attributed to the Respondent
as a part of the totality of this case . There is no expression of view or statement
contained in the speech or in the statements which could be construed as a threat that
the Respondent would close the plant should the Union be recognized as the bargain-
ing representative of the employees in the bargaining unit.
Varney denied that he had ever threatened to close the plant or go out of business
or any intention to so threaten . His statements were predicated solely upon a possi-
bility or anticipation of what course future bargaining with the Union might take,
in connection with his ability to meet union demands or to stand a strike. The Gen-
eral Counsel argues that the Respondent did not know that the Union would make
the same demands it made the previous year, even assuming that these demands were
not economically feasible; and that the Respondent precluded this possibility by
refusing to meet with the Union to ascertain what its demands would be. Even should
it be found , as I will find herein , a refusal to bargain when the Union represented a
majority of the employees and had promptly demanded recognition, the argument of
the General Counsel still is specious in that, in my opinion, the Employer did not
actually threaten to close the plant in circumstances which would lead the employees
to believe that that would be a final ultimate result if the Union eventually were suc-
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cessful in its recognition efforts. Consequently, I shall find only that Marshall testified
that Varney make the remark attributed to him by Marshall and that the demeanor
of the witness and his manner of testifying in this respect was not conclusive. The
testimony of Cumberbatch is too vague and detached to be allowed too much credence.
Marshall, Cumberbatch, and Roach said that Husband, when the latter made the
speech, interpolated comments and spoke aside from his prepared speech. This,
Husband denies. I credit Husband, because of his full explanation of the manner be
adopted in delivering the speech, together with the failure of the other witnesses to
remember with fair exactitude the words used by Husband, and because of the
generality of their testimony.6
G. The refusal to bargain
On July 17, 1963, four employees designated the Union as their representative, on
the following day four employees designated the Union as their representative, and
another authorization card is dated July 24, 1963. It is clearly apparent that on July
19 when the Union made its first demand for recognition, it did hold applications for
membership and authorizations from seven of the eight production and maintenance
employees in the appropriate bargaining unit. On July 19 the Union's demand was
made in good faith, and on the record there can be no question as to the authenticity
of the union cards held by its representative on that day when he met with President
Varney. At the time of the Union's second demand for recognition on November 18,
1963, and after the Regional Director's report on objections and direction of second
election, dated October 7, 1963, the Union still held membership and authorization
cards of all eight employees.
The Respondent claims a good-faith doubt of union majority on July 19 and at
the time of the Union's second demand for recognition on November 18, 1963. Its
doubt of a union majority at or during these times is based principally on the fact
that at these times the Union claimed to represent the same people who had refused
to join its 1962 strike, had crossed the Union's picket line in 1962 despite the "harass-
ment and name calling there"; it says that it is not surprising that the Respondent'&
president could not believe the Union represented his employees, it being inconceiv-
able to him that the same Union which characterized these employees as "scabs and
strike breakers" during 1962, and had harassed them, could have obtained uncoerced
voluntary authorization from them. It further is pointed out that despite this dis-
belief in the validity of the union claim, expressed to Respondent's attorney on that
same day, and upon his having learned that the employee could have a secret election
to determine the "true state of employee attitudes," Varney promptly visited the
NLRB Regional Office, fully disclosed the background of his relationship with the
Union, and then filed a petition to obtain an election.
9 The testimony of Roach:
Well, I saw-you talk to us. You didn't read from notes all the time . I mean,
that 's how I see it. Sometimes you look on the paper and other times you talk a.
little while.
The testimony of Marshall:
Well, lie come in and he introduces himself to myself, Roach and Cu nibet batch.
You said, "As you all know , I'm Mr Varney ' s attorney ." He said, "And there's a
union in back in here again-wants to come back in here again." He said it was
in here last year Mr. Varney had to lose plenty time running back and forth to
the Union He said , "He wants the friendship remain as how it is." He said,
"because he don't think the Union is no good to the Company, he will have to go
out of business ." He said , "You eat , you drink , and you laugh with him now So he
don't think the Union is that good enough for the Company "
The testimony of Cumberbatch:
. . . He was speaking from this letter , quoting from it , he read the letter And
he said, in these plain words he said that Friday which was the following day, the
election day, was a very important day. His chief reason that he was there was
to ask the employees to give them a "No" vote. That was one of his chief reasons
And he was saying that we all weie good friends we still are, lie hoped , there won't
bring anything after, and lie wanted the friendship to remain He said that the
demands that the Union were asking the Company could not afford these demands.
And it would eventually force the Company to go out of business . . . . I do not
recall that now, but he had something in his hand . I couldn't say, back for such
a long time, if you even showed me the cola :, my memory wouldn ' t serve me on the
color, whether it was pink , yellow, blue or red.
FRANK C. VARNEY CO., INC. 295
It is said on behalf of the Respondent that its suspicions were justified because at
the subsequent secret election, the Union was rejected , and that the Union now
refuses to participate in a second election. This is to ignore the fact that the results
of the election were set aside on the finding of the Regional Director that the Respond-
ent had engaged in improper conduct affecting the result of the election.
Section 8(a) (5) of the Act requires an employer "to bargain collectively with the
representatives of his employees , subject to the provisions of Section 9(a)." Although
Section 9 ( c) (1) provides machinery by which the question of representative status
may be determined in a Board -conducted election, it has long been settled that an
election is not the only means by which a union 's representative status may be estab-
lished. See United Mine Workers of America v . Arkansas Oak Flooring Co., 351
U.S. 62, 71-72, and cases cited therein at footnote 8. In N.L.R.B. v . Trinifit of Cali-
fornia, Inc., 211 F. 2d 206 , 209, 210 (C.A. 9) it was held:
Respondent contends that it had no duty to bargain until the union had estab-
lished its majority status by a Board election. There is no absolute right vested in
an employer to demand an election. lob v. Los Angeles Brewing Co ., 9 Cir.,
1950, 183 F. 2d 398 . If an employer in good faith doubts the union's majority,
he may, without violating the Act, refuse to recognize the union until its claim
is established by a Board election . A doubt professed by an employer as to the
union's majority claim must be genuine . Otherwise the employer has a duty to
bargain and may not insist upon an election. Joy Silk Mills v . N.L.R.B., 1950,
87 App. D.C. 360, 185 F. 2d 732.
Respondent pursued a course of conduct that evidences a clear violation of the
Act's good faith requirements . It consistently refused to bargain with the union,
which at all relevant times represented a majority of respondent 's employees.
Not once during the January 30 or February 6 meetings did respondent challenge
the union 's right to represent the employees . On both of these occasions the
union informed respondent that a majority of its employees had signed union
cards. There was no necessity for the union to offer proof of the genuineness of
its majority claim absent a challenge by respondent . The refusal to bargain was
not based upon any doubt that the union spoke for a majority of the employees.
Respondent would have refused to bargain had every employee in the plant signed
authorization cards.
And see N.L .R.B. v. Geigy Company, Inc., 211 F. 2d 553, 556 (C.A. 9 ), cert denied
348 U .S. 821; Fred Snow et al., d/b/a Snow & Sons v. N.L.R.B., 308 F. 2d 687, 691
(C.A. 9).
In the instant case, it is conceded that neither President Varney nor Attorney
Husband made any effort to determine union majority. The Respondent concedes
only that three of the four employees who called on President Varney on July 19
with Union Representatives Fishko and Padula were employees within the bargaining
unit. As late as May 25, 1963, Varney met with the Union , his explanation being
"that the reason we continued to negotiate was we were afraid that we would have a
refusal to bargain charge if we didn't " But this is no real explanation or excuse for
the failure of the Respondent to demand a showing of majority by the Union. The
failure of the Respondent to question the majority status of the Union or to ask for
proof thereof must be deemed a significant indication of its bad faith. Certified Cast-
ing & Engineering , Inc., 145 NLRB 572.
The result of the election of August 23, 1963, probably reflects the impact of the
handouts and speech above discussed . I cannot find that their content, within the
permissible limits of Section 8(c) of the Act, reflects the "veiled threats" asserted by
the General Counsel. I do find, however , that the fact that the Respondent failed to
question the majority of the Union on July 19, 1963 , and the almost immediate filing
of the RM petition resulted in delay which offered the Respondent the opportunity to
act to dissipate the union majority, and that it was dissipated . See Joy Silk Mills, Inc.,
85 NLRB 1263, 1264.
The fears of the Respondent and its expressed doubt concerning the union majority
cannot constitute a defense in the absence of any real bargaining demands having
been made by the Union . Further, it is not for an employer to question any reason
an employee might have for changing over from opposing the Union to adhering to
it. See George Groh and Sons , 141 NLRB 931 , 939-940. The time gained by the
Respondent by the filing of the RM petition , I find , did gain the Respondent time
to undermine the majority status of the Union . See Bernel Foam Productc Co., Inc.,
146 NLRB 1277.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The expressed anticipation that the Respondent would be required to pay increased
wages which might result in a cessation of business does not constitute a defense to
an alleged violation of Section 8(a)(1) of the Act. Economy Food Center, Inc., 142
NLRB 901; Johnnie's Poultry Co., 146 NLRB 770.
The remarks made by Varney to employees Marshall and Gill, and his statement
to Roach that "he had brought a union in on his head," under the circumstances in
each case clearly constituted interrogation and threats of reprisals, and were violative
of Section 8(a) (1) of the Act. I so find.
Upon a careful evaluation of the relevant evidence, it clearly appears that the
preponderance of the evidence shows that the Respondent, in seeking a Board elec-
tion , was motivated not by a good-faith doubt of the majority status of the Union,
but by a rejection of the principle of good-faith collective bargaining. By its refusal
to bargain on June 19, 1963, and thereafter to recognize and bargain with the Union,
the Respondent violated Section 8(a)(5) and (1) of the Act. I so find.
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 unfair labor practices violative
of Section 8(a)(1) and (5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
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. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Printing Specialties and Paper Products Union No. 447, International Printing
Pressmen and Assistants' Union of North America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees employed by the Respondent at its
Elizabeth plant, but excluding office clerical employees, watchmen, guards, profes-
sional employees, and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act.
4. Printing Specialties and Paper Products Union No. 447, International Printing
Pressmen and Assistants' Union of North America, AFL-CIO, has been at all times
since June 18, 1962, and now is the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
5. By failing and refusing at all times since June 19, 1963, to bargain with Printing
Specialties and Paper Products Union No. 447, International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, as the exclusive bargaining repre-
sentative of the employees in the aforesaid appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By interrogating and making promises or threats to employees Sinclair Marshall
and Laurie Gill, the Respondent engaged in unfair labor practices affecting commerce
within the meaning of Secton 8(a) (1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
8. The Respondent did not withhold sick pay from employees Leon Roach in viola-
tion of Section 8 (a) (1) and (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is recom-
mended that Frank C. Varney Co., Inc., its officers, agents, successors, and assigns
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Printing Specialties and Paper Products
Union No. 447, International Printing Pressmen and Assistants' Union of North
FRANK C. VARNEY CO., INC. 297
America, AFL-CIO, as the exclusive bargaining representative of all production-
and maintenance employees of Frank C. Varney Co., Inc., at its Elizabeth plant, but
excluding office clerical employees, watchmen, guards, professional employees, and
supervisors as defined in the Act.
(b) In any like or related manner interfering with, restraining, or coercing their
employees in the exercise of their right to self-organization, to form, join, or assist
the aforesaid labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request, bargain collectively in good faith with Printing Specialties and
Paper Products Union No. 447, International Printing Pressmen and Assistants' Union
of North America, AFL-CIO, as the exclusive representative of all production and
maintenance employees in the aforesaid appropriate unit, and, if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at its Elizabeth, New Jersey, plant, copies of the attached notice marked
"Appendix." 7 Copies of said notice, to be furnished by the Regional Director for
Region 22, shall, after being duly signed by a representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken to insure that such notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 22, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Decision, what steps Respondent has
taken to comply herewith.8
It is recommended that unless on or before 10 days from the date of the receipt of
this Trial Examiner's Decision, the Respondent notifies said Regional Director in
writing that it will comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring Respondent to take the action aforesaid.
7If this Recommended Order is adopted by the Board , the words "a Decision and Order"
shall be substituted for the words " the Recommended Order of a Trial Examiner" In
the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order"
8 If this Recommended Order is adopted by the Board , this provision shall be modified
to read: "Notify the Regional Director for Region 22, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith "
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL, upon request, bargain collectively in good faith with Printing
Specialties and Paper Products Union No. 447, International Printing Pressmen
and Assistants ' Union of North America, AFL-CIO, as the exclusive representa-
tive of all employees in the bargaining unit described below with respect to
rates of pay , hours of employment , and other conditions of employment , and, if
an understanding is reached , we will embody such an understanding in a signed
contract . The bargaining unit is:
All production and maintenance employees of Frank C. Varney Co.,
Inc., at its Elizabeth, New Jersey , plant, but excluding office clerical employ-
ees, watchmen , guards, professional employees , and supervisors as defined
in the Act.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of rights to self-organization , to form labor
organizations , to join or assist Printing Specialties and Paper Products Union
No. 447, International Printing Pressmen and Assistants' Union of North
America, AFL-CIO, or any other labor organization , to bargain collectively
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities.
All our employees are free to join or assist any labor organization, and to engage
in any self-organization or any concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from such activities.
FRANK C. VARNEY CO., INC.,
Employer.
bated------------------- 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, 614
National Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions.
Council Manufacturing Corp . and International Union , Allied
Industrial Workers of America, AFL-CIO. Case No. 26-CA-
1782. February 26, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner Alba B. Martin issued his
Decision in the above-entitled case, 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 Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Decision
and a brief in support of the exceptions. The General Counsel filed
a brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial Examiner's
Decision and the entire record in the case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as herein modified.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner as modified herein, and orders that
'In view of our other findings in this case and the limited nature of the alleged
violation of Section 8(a) (5), we find it unnecessary to pass upon that allegation of the
complaint as our Order adequately remedies such a violation even if found.
151 NLRB No. 39.