Hunter Outdoor Products, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1969

176 N.L.R.B. 449 (N.L.R.B. 1969)

HUNTER OUTDOOR PRODUCTS
Hunter Outdoor Products, Inc.' and International
Ladies ' Garment Workers ' Union , AFL-CIO' and
Local 29, Retail , Wholesale and Department Store
Union , AFL-CIO,' Party to the Contract
Local 29 , Retail , Wholesale and Department Store
Union , AFL-CIO and International Ladies'
Garment Workers ' Union, AFL-CIO and Hunter
Outdoor Products , Inc., Party to the Contract.
Cases I-CA-6153 and I-CB-1324
June 9, 1969
DECISION AND ORDER
By CHAIRMAN MCCULI OCH AND MEMBERS
BROWN AND ZAGORIA
On February 26, 1969, Trial Examiner Josephine
H. Klein issued her Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel and the
Respondent, Hunter Outdoor Products, Inc., filed
exceptions to the Trial Examiner's Decision and
briefs in support thereof. The General Counsel's
brief was also in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.' The Board has considered the
Trial Examiner's Decision, the exceptions and briefs,
and the entire record in this proceeding, and hereby
adopts the findings,' conclusions,6 and
recommendations of the Trial Examiner, as
modified herein.'
'Hereinafter called Hunter.
'Hereinafter called ILG.
'Hereinafter called RWD.
'Hunter contends that the Trial Examiner committed prejudicial error by
denying its motion to reopen the hearing to permit Hunter to defend
against the unfair labor practice allegations against RWD. Hunter has
resubmitted this motion to the Board . Specifically. Hunter argues that,
since it is derivatively guilty of violating Sec. 8 (a)(2) and ( 1) of the Act by
recognizing , and executing a collective- bargaining agreement with, RWD
as the employees ' exclusive bargaining representative if, at that time, RWD
did not represent an uncoerced majority of Hunter ' s employees , it should
have been permitted to present evidence to prove , contrary to the General
Counsel 's evidence , that RWD's majority was not coerced . We find no
merit in Hunter 's contention in the circumstances of this case , and hereby
deny its motion . In the first place, as stated in the Trial Examiner's
Decision , Hunter was afforded every opportunity to cross-examine the
General Counsel ' s witnesses and to subpoena RWD's representatives in
charge of organizing Hunter 's employees . Secondly, and more important,
even if Hunter could establish that RWD represented an uncoerced
majority of Hunter 's employees on September 29, 1967, when RWD first
ORDER
449
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Hunter Outdoor Products, Inc., North
Adams, Massachusetts, its officers, agents,
successors, and assigns, and the Respondent, Local
29, Retail, Wholesale and Department Store Union,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
1. Delete paragraphs l(b)(7) and l(b)(8) of the
Trial Examiner's Recommended Order and
renumber paragraph l(b)(9) as I(b)(7).
2. Delete paragraph 2(b)(4) of the Trial
Examiner's Recommended Order and substitute the
following new paragraph 2(b)(4):
"Mail signed copies of the attached notice
marked "Appendix C" to the Regional Director for
posting at Hunter's plants."
demanded , and Hunter denied , recognition , we would nevertheless order
Hunter to withdraw such recognition now because of Hunter's own
unlawful conduct both before and after it finally recognized RWD on
October 27, 1967. It is well settled that the Board will order an employer
to withhold recognition of a labor organization until it is certified by the
Board if that labor organization ' s majority status was attained or retained
by the employer 's unlawful conduct . See, e g., Golden State Bottling
Company, Inc. d/b/a Pepsi-Cola Bottling Company of Sacramento, 147
NLRB 410, enfd . in pertinent part 353 F. 2d 667 (C.A. 9) As fully
described in the Trial Examiner 's Decision , Hunter committed numerous
violations of Sec. 8(a)(2) and ( 1) of the Act after October 1 and before it
finally extended recognition to RWD on October 27, as well as thereafter
These violations by Hunter were clearly prompted by, and were part of, an
effort to frustrate the rival organizing activities of the ILG which began in
the first week of October In these circumstances, we cannot find that
RWD retained an uncoerced majority on October 27 even assuming,
arguendo that it had enjoyed such a majority on September 29
'Hunter has excepted to certain credibility resolutions made by the Trial
Examiner It is the Board 's established policy not to overrule a Trial
Examiner 's resolutions as to credibility unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Such a
conclusion is not warranted here. Standard Dry Wall Products , Inc, 91
NLRB 544, enfd . 188 F.2d 362 (C.A 3). The Great Atlantic & Pacific Tea
Company . 129 NLRB 757, in 3 at 758.
'In finding , as the Trial Examiner did, that Hunter violated Sec 8(a)(1)
of the Act by Simone's assault on ILG organizer Gross, we do not adopt
her discussion concerning the standard of proof required in criminal
proceedings
'While we agree with the Trial Examiner that the Respondents , Hunter
and RWD, violated Sec 8(a)(1), (2), and (3), and Sec 8 (bXI)(A) and
8(b)(2) of the Act, respectively, we do not agree that the special remedial
provisions recommended by the Trial Examiner are appropriate
Accordingly , we shall amend the Trial Examiner ' s Recommended Order by
deleting therefrom the requirement that the Notices marked Appendixes B
and C be read and mailed to the Respondents' employees and members,
respectively.
TRIAL EXAMINER'S DECISION
JOSEPHINE H. KLEIN, Trial Examiner : Pursuant to
charges filed by International Ladies' Garment Workers'
Union , AFL-CIO (ILG) against Hunter Outdoor
Products , Inc. (Hunter) on November 17, 1967 (amended
November 22, 1967, and January 4 and 12, 1968), and
176 NLRB No. 58
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against Local 29, Retail Wholesale and Department Store
Union , AFL-CIO (RWD) on November 21, 1967
(amended January 4 and 12, 1968 ), a consolidated
complaint was issued on January 19, 1968 , against Hunter
and RWD . The General Counsel provided additional
details in response to Respondents ' demands for bills of
particulars . In other respects , the demands were denied by
order on February 16, 1968.
Upon proper notice , the consolidated complaint came
on for hearing at North Adams , Massachusetts , on April
23, 1968 . All parties appeared through counsel. At the
outset of the hearing , counsel for the General Counsel and
for RWD submitted a settlement agreement for the
Examiner 's approval . When the Examiner reserved
decision as to acceptance or approval of the settlement,
RWD withdrew from further participation in the hearing.
The hearing proceeded on April 23, 24, and 25. All parties
waived oral argument and thereafter briefs were filed on
behalf of the General Counsel , Hunter and ILG.
On July 16, 1968 , the Examiner issued an Order
Disapproving Proposed Settlement and Reopening
Record .' The General Counsel thereupon filed a request
for special permission to appeal the order to the Board.
On November 5, 1968 , the Board issued its order granting
the General Counsel 's request for permission to appeal
and then denying the appeal . Thereupon the Examiner
issued a notice of hearing for January 7, 1969, the date
agreed upon by all counsel . On January 3, 1969 , however,
counsel for RWD advised the Examiner that Respondent
Union did not desire to present any evidence , but would
rest on the record as it then stood . Since the order of July
16, 1968 , had strictly limited the scope of the reopened
hearing "to the presentation of a defense by RWD .. .
and such rebuttal evidence as the General Counsel and the
Charging Party may present ," upon receipt of RWD's
waiver of the right to present evidence the Examiner
canceled the hearing scheduled for January 7, 1969. The
case is now ripe for decision on the basis of the evidence
and briefs heretofore filed.'
On all the evidence , observation of the demeanor of the
witnesses , consideration of the briefs , and the entire
record , the Examiner makes the following:
FINDINGS AND CONCLUSIONS
1. PRELIMINARY FINDINGS
The complaint alleges and the Examiner finds that:
A. Hunter, a New York corporation , with its principal
office and place of business in Long Island City, New
York, and plants in North Adams, Massachusetts, is
engaged in the manufacture , sale, and distribution of
sleeping bags , tents, and related products . In the course of
its business , Hunter purchases large quantities of materials
and has them transported to its North Adams plants from
points outside Massachusetts and sells products and has
them transported from its North Adams plants to points
outside Massachusetts. Hunter annually receives at its
North Adams plants directly from points outside
Massachusetts materials having a value in excess of
' The order of July 16 . 1968, is attached hereto as Appendix A.
'Under date of January 6. 1969 . Hunter sent to the Examiner a "Motion
. to sever ; to expunge certain testimony ; and, alternatively, to allow the
introduction of certain evidence." As stated by the General Counsel in a
written opposition to the motion , Hunter's recent motion was repetitive of
motions previously made and denied by the order of July 16, 1968. The
denial is hereby reaffirmed.
$50,000 and annually ships products valued in excess of
$50,000 from its North Adams plants directly to points
outside Massachusetts . Hunter is, and at all time herein
material has been , an employer engaged in commerce
within the meaning of the Act.3
B. RWD is a labor organization within the meaning of
Section 2(5) of the Act.
C. ILG is a labor organization within the meaning of
Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Hunter has for sometime had two plants in Long Island
City, New York.' For several years its employees in Long
Island City have been represented by RWD.
Around October 1966, Hunter purchased a plant on
State Road in North Adams , Massachusetts .' Hunter
commenced operations at that plant in the fall of 1966.
Thereafter , around September or October 1967, Hunter
purchased a second plant in North Adams, on Union
Street.
According to the uncontradicted testimony of Joseph
Martin, Hunter 's vice president , Joel Pave , president of
RWD, first talked to Martin concerning organization of
Hunter's employees in North Adams in January or
February 1967.' According to Martin , Pave "said
wherever I [Martin ] went , he [Pave] went . . . we were
like Siamese ." Pave also said that "no one was going to
take any work out of Long Island without him putting his
blessings on it ." Martin further testified that Pave -
said the work belonged in Long Island City and was
going to stay there , and if [Pave] had to , he would
prevent [Hunter] from moving machines , work, or
anything else up into North Adams or any other place.
It was Pave ' s position that the collective-bargaining
agreement then in existence between Hunter and RWD
extended to the new operation in North Adams since it
recognized RWD as the agent for "all of the Company's
production and maintenance employees . Martin testified
that initially he and his associate , a Mr. Weiss , "decided
just to keep stalling , stall [Pave ] to death ." Their
apparently successful "stalling " came to an end in August
1967, when Pave visited the North Adams plant and said
"(h]e was ready to organize whether [Hunter ] liked it or
not."
Martin testified that, at least at the time involved, a
substantial part of the work at the North Adams plants
consisted , in effect , of "subcontracts" under government
contracts held by the New York plants. According to
Martin and Alfred P. Simone , Jr., Hunter ' s general
manager in North Adams , the North Adams plants could
not then operate economically without the government
contract work transferred from New York.
'National Labor Relations Act , as amended, 29 U.S .C. Sec . 151, et seq.
'It also has plants in Philadelphia and in Connecticut . These plants
apparently are nonunion.
'The plant had previously been operated by Sports Industries, Inc.,
which performed work for Hunter under subcontracts. Sports Industries,
however, was unable to operate economically and was close to bankruptcy
when Hunter took it over . Alfred P . Simone, Jr., Hunter 's present general
manager in North Adams, had been a principal in Sports Industries.
'Hereafter , unless otherwise stated , all dates are in 1967. Before Hunter
took it over from Sports Industries Pave had looked into the North Adams
operation but apparently decided against any attempt at organization.
HUNTER OUTDOOR PRODUCTS 451
Sometime early in September Simone spoke to the
employees of the State Road plant in groups of some 60
to 80 each . He told them there was a union in Hunter's
New York plants and its representative had said that the
union would prevent any work from coming to the North
Adams plants unless Hunter allowed the union's
representative to speak to the North Adams employees.
Simone thus asked the employees to listen to the union
representative when he arrived , even though Hunter did
not want a union.'
About a week later, Simone again called the employees
together and told them that the union 's representative was
coming that day and requested that the employees listen
to him when he came . That afternoon Pave appeared, with
another union representative , a woman identified only as
"Connie." Successive groups of 40 to 60 employees were
called together in an empty part of the plant. Simone
introduced and identified Pave to each group and then
withdrew. No Hunter representative or supervisor was
present when Pave and Connie spoke to the employees.
Although the Company presented no documentary proof,
Martin testified that RWD had reimbursed the Company
for the employees' time devoted to these meetings with
Pave .' Martin ' s testimony in connection with this
reimbursement was uncontradicted and is credited.
However , it does not appear that the employees were
informed of this reimbursement , so it must be assumed
that they believed Hunter was footing the bill.
At the North Adams meetings Pave told the employees
that the union represented the employees at the New York
plants and , accordingly , it represented the North Adams
employees, whether they liked it or not. Shop stewards
were also named - five whose names Pave presented and
two nominated by the employees. Employee Belanger
credibly testified as follows concerning that first meeting
with Pave:
[Pave] said he represented the union, and he had a slip
of paper in his hand , and these were names that been
given to him , people that would be Stewards . Then we
nominated some people, and some of them refused, and
some accepted . He said it was a closed shop and that if
we didn't have a union there, they would stop the trucks
from delivering any goods .... he said we would get a
ten-cent raise in February , and we would get one in
November. I think it was November and February. We
were to get two raises .. .. . October. That was the
date .... A ten-cent raise, .. .
Employee Booth testified as follows concerning Pave's
statements when he first spoke to the employees in
September:
He just introduced himself and said he represented the
Wholesale Retail Union from New York.
Q. (By Mr. Kelleher) And do you recall if Mr. Pave
said anything else?
'Employee Phyllis Belanger credibly summarized Simone's statements to
the employees as follows : "Well, he said that they had a union in their
shop in New York , and that they said they would not let them bring any
work to North Adams if they didn 't let the union then come in to speak to
us. He didn 't want any work stoppage , and he would like to have us listen
to them ." Employee Agnes Booth testified that Simone said "[thhat a
union wanted to come in, and he didn ' t want no part of it. It was only a
short speech."
'Martin testified that it was standard practice at Hunter ' s Long Island
plants for union representatives to conduct meetings on company premises
and company time and to reimburse the company for the employees' pay
any time such a meeting went beyond 20 minutes.
A. We talked about benefits that they have and
raises . We talked about getting raises.
Q. Do you recall if he said anything else about his
Union?
A. That it represented the one in New York. That's
the one that's going to represent this plant.
: s • s
Q. Do you recall if, while you were present, Mr.
Pave indicated why the Union from New York would
represent the North Adams people also?
A. Because it represented the mother plant in New
York.
Q. Is that what he said?
A. Yes.
Q. And do you recall if he said anything about
joining his Union?
A. You had to join in 30 days, or you were
dismissed.
Q. Is that what Mr. Pave said?
A. Yes.
Immediately after the employee meetings, a shop
stewards' meeting was held at which Pave gave
instructions as to the stewards' functions and duties.
A few days later the shop stewards were given RWD
authorization cards, which they distributed among the
employees on working time and in clear view of
supervisory personnel. While the witnesses did not state a
specific date for this initial solicitation, other evidence
establishes that it occurred on September 29. Employee
June Rancourt testified that she joined RWD "the day
they all sent around the cards, that the Stewards brought
the cards around." Rancourt's card bears the date
September 29. Employee Mildred Cole, who was one of
the original shop stewards, credibly placed this solicitation
as a few days after the meetings with Pave at the plant,
which was probably around the middle of September and
before the RWD meeting at the Eagles' Hall, which was
held on October 3. Of the 319 RWD authorization cards
in evidence, 127 are dated September 29, with only seven
bearing an earlier date, the earliest being September 12.
According to employee Cole's uncontradicted and
credited testimony, at the October 3 meeting Pave again,
told the employees that "the Union was in New York at
the New York plant, and he called it a mother Union, and
he said we had to accept it here whether we wanted it or
not."
Martin testified that late in September Pave
telephoned, and, saying RWD had authorization cards
from a majority of Hunter's North Adams employees,
asked Martin to sit down with him and negotiate a
contract. Other evidence fixes the date of this demand as
September 29. Martin refused to bargain. In testifying,
Martin did not say why he refused to bargain, nor did he
indicate that he had given Pave any reason for his refusal.
The RWD cards in evidence establish that on
September 29, RWD held 134 cards. While there is no
direct evidence of the size of the unit on September 29, it
is undisputed that the appropriate unit consisted on 225
employees in the week ended October 7, and 244 the next
week. The uncontradicted evidence further establishes that
the North Adams operations had started about a year
earlier on a much smaller scale and had grown
consistently. Accordingly, the Examiner finds that on
September 29 the unit was not more than 225 employees.
Thus, the Examiner infers and finds that on September 29
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RWD held authorization cards executed by a majority of
the employees in the appropriate unit.
The General Counsel and Charging Party maintain that
the ILG commenced organizational activity among
Hunter's North Adams employees in August. However,
the evidence establishes that such activity did not begin
before October 1 . Stanley Gross , an organizer , was the
only ILG representative who testified at the hearing. On
direct examination , he said that the ILG campaign began
in August . However , on cross-examination he testified as
follows:
Q. (By Mr. Fordham) Mr. Gross, when did you
personally become involved in organizing this plant?
A. I think it was October 1, 1967.
Q. (By Mr. Fordham) Who was in charge of the
organizational campaign for the ILG?
A. John F. Albano [director]' for the -
Q. What region?
A. For the New England Organizing Area.
Q. And so in that technical sense he is in charge of
all organizing efforts in that area?
A. Correct.
Q. Who, subordinate to him , was really in charge?
A. I was.
Since Gross testified that his organizational activity
among Hunter ' s employees began on October 1 and there
was no evidence of any earlier activity by any other ILG
representative , the Examiner discredits" Gross' initial
statement that the campaign commenced in August and
finds that it began on October 1.
On the evening of October 3, RWD held a meeting at
the Eagles' Hall in North Adams. Considerable dissension
arose at that meeting , with ILG sympathizers injecting
considerable doubt concerning the regularity of RWD's
position.
The next day, October 4, Martin held a meeting" of all
employees . He said that he had heard about the discussion
and dissension at the meeting the evening before and was
disturbed about it . He said that he had never been in a
"squeeze" between two unions and would not stand being
placed in that position now; if such a "squeeze"
developed, he would close the North Adams plant. In
testifying at the hearing, he repeated this view, saying that
it was "obvious" that he would be economically forced to
close down if he were "squeezed" between rival unions.
Continued questioning produced no further explanation or
factual basis for Martin's "prediction" of the "obvious"
result of interunion rivalry.
At the October 4 meeting Martin told the employees
that they did not have to join any union , notwithstanding
anything to the contrary that might have been told them,
presumably by RWD representatives . He also said that,
while he did not want any union at the North Adams
`The record is hereby corrected to add the word "director," which,
though said by the witness , does not appear in the transcript John F.
Albano is identified as "Dist Mgr. and Director of Organization" of ILG
in the Board 's affidavits of service of the formal documents
"Gross generally impressed the Examiner as an unreliable witness For
example , he testified that he thought ILG had made written request of
Hunter for permission to hold meetings at the plant and that he thought he
could produce a copy. However , ILG counsel there stated that no such
letter of request had been sent , whereupon Gross agreed that he "would
now recall there was no such request "
"Martin insisted he did not conduct "meetings" with his employees or
make "speeches" to him . He preferred the word "discussion" to "meeting"
and "speech" In using the latter words, the Examiner disclaims any
adverse connotation.
plants, he much preferred RWD, as a decidedly "lesser
evil" than ILG. He said that, having dealt with it in Long
Island , he knew how RWD operated and he could manage
to get along with it , while past experience had taught him
that he could not deal with ILG.12 The Examiner credits
the testimony by employees Belanger , Booth, Cole and
June Rancourt that in the October 4 meeting Martin said
that he would close the plants if ILG were to become the
employees' representative. Indeed, Martin corroborated
this testimony in major part.
At the October 4 meeting , Martin also announced a
no-solicitation and no -distribution rule. While the evidence
is not clear or precise on all points , the Examiner finds
that Martin prohibited distribution and solicitation on
Company premises during working time."
Martin and Pave agreed to go to arbitration. There is
no direct evidence as to the date on which they agreed to
arbitrate, the circumstances of the agreement, the date of
the submission, or the date of the arbitral hearing. At the
hearing, Martin professed that from the beginning he and
his associate , a Mr. Weiss , had decided to "stall [Pave] to
death." Martin's testimony also establishes that he
rejected Pave's demand for recognition on September 29,
and, in his words, "finally" agreed to arbitrate. Further,
there is no suggestion that on October 4 he mentioned
arbitration in his talk to the employees. The Examiner
finds, therefore, that the agreement to arbitrate was
reached after October 4, and thus after Hunter became
aware that ILG had initiated an organizational campaign.
Analysis of the record evidence further establishes that the
matter was submitted to the arbitrator on October 23 or
24. This conclusion follows from the facts that in his
decision the arbitrator recited that he had examined 209
authorization cards and the authorization cards in the
present record contain 210 dated on or before October 23.
The parties submitted to the arbitrator "the question of
representation of the collective bargaining unit." The
stipulation submitting to arbitration then provided that -
the Arbitrator shall first determine whether such
question of representation shall be decided on the basis
of extension of the present Union agreement to the
employees of the Employer employed at North Adams,
Massachusetts; and that should the Arbitrator
determine that such question of representation shall not
be determined by extension of the present agreement,
then the Arbitrator is hereby authorized to decide the
question of whether or not the Union represents a
majority of the employees [at North Adams] on the
basis of a comparison of cards designating the Union as
such representative as compared to payroll records or
other employment records submitted by the Employer.
On October 27 the arbitrator made his award. He first
decided that the existing agreement between Hunter and
RWD "does not extend to and apply to the North Adams
factories." The decision then described the comparison of
the signatures on the cards with employees ' signatures
appearing in Hunter' s records . The award concluded:
2. A comparison of the cards designating the Union
as collective bargaining representative with the official
payroll records of the Employer, reveals that the Union
represents 209 of the 261 employees in the Company's
two factories in North Adams, Massachusetts.
Me expressed the same opinion of the Amalgamated Clothing Workers
Union
"The complaint does not allege that the rule itself was invalid.
HUNTER OUTDOOR PRODUCTS 453
3. The Union is the majority representative of all
production and maintenance employees excluding
executives, supervisors, office and clerical employees,
professional employees, watch men and guards, as
defined in the National Labor Relations Act, of the
Employer in its factories located in North Adams,
Massachusetts.
On October 27, the date of the arbitrator's award,
Hunter recognized RWD. On November 4 Respondents,
through Martin and Pave, executed a collective-bargaining
agreement, containing inter alia union-shop and union
dues checkoff provisions. In explanation of the apparent
speed with which the agreement was signed, Martin
testified:
I tried to stall [Pave] even after the award, [10 ] but I
couldn't. The mechanics had already been set up, we
have a contract in Long Island City. Most of the meat
of it had been taken, was taken from that, and the only
thing left was the economics right after the award was
signed.
The only thing left open was the economic, moneys,
holidays, everything else was in.
* * * *
.. If I may add, I still tried to stall it further. I didn't
think we needed the union in North Adams. I didn't
want one.
Article 20 of the agreement, headed "Wage Scale,"
provides, in the future tense, for a 10-cent-per-hour wage
increase effective October 1, and 10 cents per hour for
piece workers effective October 23. The agreement,
however, does not set forth any wage rates as such. The
evidence clearly establishes that a general 10-cent raise,
effective October 1, had been given before the union was
recognized. The precise date on which that raise was
announced and granted is not clearly shown. Further, the
record does not show whether piece workers received the
contractually provided raise of 10 cents effective October
23.13
ILG proceeded with its organizing campaign,
apparently at first only through visits to the homes of
employees. On or about November 8 the ILG held its
first, and apparently only, meeting. This meeting was
attended by about four or five employees specifically
invited by the ILG representatives and those other
employees whom they in turn invited. Madeline Serrano,
RWD's chief shop steward, was seen sitting in an
automobile apparently observing employees as they
arrived at and entered the Phoenix Hotel, where the ILG
meeting was held.
Around the end of October, employee Cole, who had
been named a shop steward at Pave's first meeting with
the employees in September, resigned her position
because, in her opinion, RWD was "crooked" and she
"didn't want no part of it." However, she reconsidered
and withdrew her resignation at the request of Simone,
'The record is hereby corrected to change the word "work" appearing
therein to "award", which is the word actually used by the witness.
"Pave had previously told the employees they would get (or at least the
union would try to get them ) a 10-cent raise in October or November and
an additional 10• or I5-cent increase in February 1968. The agreement
provides for wage reopening on February 15, 1968, and reopening as to
wages and working conditions on September 1, 1968, and 1969.
who said that Martin "was very upset because there was
Union trouble" and 'Jilt doesn't look very good" for a
shop steward to resign after serving only about a month.
Having resumed her position, Cole attended a meeting
of shop stewards with Simone and Martin on November
14. Cole testified that at the meeting Martin said that
employee Agnes Booth was going to be dismissed because
she was passing out ILG cards. Martin, on the other
hand, maintained that the reason for Booth' s dismissal
was her having passed out any union cards, regardless of
the identity of the union, on working time. Cole testified
further that in a private conversation after the meeting
Martin agreed to Cole's request that he reconsider and
retain Booth if she signed an RWD card. Martin's
testimony was that when Cole volunteered to have Booth
sign an RWD card he replied, in effect, "Don't do me no
favors"; all Martin wanted was a complete end to
solicitation for any union on working time. Cole reported
the events to Booth, who thereupon signed a card for
RWD. Booth was not discharged. On all the evidence,
together with careful observation of the demeanor of the
witnesses , the Examiner credits Cole's testimony and finds
that the threatened discharge of Booth was based in
substantial part on her support of ILG, rather than solely
on her use of company time for the solicitation of union
cards, and was averted by her joining RWD.
Several employees credibly testified that throughout this
period RWD shop stewards continued to solicit RWD
cards in full view of supervisory personnel. And the
evidence was contradicted that on at least one occasion
there was a general solicitation of RWD checkoff
authorizations during working time. Martin and Simone
maintained that they strove valiantly, but in the main
unsuccessfully, to put an end to all solicitation, for either
union , on company time. According to them, whenever
they complained to Pave about the RWD solicitation he
countered by referring to the considerable solicitation that
was being conducted on behalf of ILG. However, so far as
the record shows, the only discipline or threat of discipline
for prohibited solicitation was the Booth incident. Hunter
produced no direct or specific evidence of any solicitation
by ILG. On the contrary, Martin testified that he had not
known that the ILG authorization cards were yellow until
he learned that at the hearing. Since it was undisputed
that the cards distributed in person by the ILG were
yellow, i6 it is reasonable to assume that Simone and
Martin would know that fact if there had been any
substantial amount of overt solicitation by ILG.17
On November 13 Simone visited the Union Street
plant. He entered angrily, turned off the power, and
proceeded to berate the employees for the poor production
resulting from union activity. He told them, in graphic
terms, that the Company controlled their jobs; that if they
were dissatisfied, they should leave; that the North Adams
plants could be shut down on virtually no notice, with
their work transferred to Hunter's other plants. Simone
conceded the general accuracy of the employees'
testimony on this matter. He testified that animosity
between the RWD and ILG sympathizers had brought
production to a virtual standstill. He turned off the power
to dramatize to the employees that "Right now they have
no jobs, they have no union , they have nothing, because if
"ILG authorization cards distributed by mail were white
"in view of Simone ' s testimony concerning the willingness of employees
to "inform ," and Martin's testimony that a shop steward had informed
him of Booth ' s activity , Hunter presumably could have produced
additional evidence of ILG solicitation had there been much
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I don't turn that power on every day, they've got
nothing." While he testified that he could not specifically
recall saying anything about closing the plant, he
conceded that he "could have said it" because he "was
mad enough to say anything at that moment." He
acknowledged having said the work could be transferred
to the Company's other plants in a matter of 20 or 30
minutes . He was "angry" and "in complete frustration"
because the employees were not working yet "[n]ot one
person came to [him] with a problem, not one, no
problems."
A few days later,10 Martin, accompanied by Simone,
visited the Union Street plant and, according to all
witnesses , including Martin himself, said to the employees
substantially the same things he had said at the State
Road plant on October 4. Employee Paula Bokowski
testified that she asked Martin if there was a contract and
if she could see it . According to her , Martin -
said yes, there was a contract . "It's either in New York
or brought up from New York, and there is no reason
why you should see it . It's been signed . Take my word
for it," or words to that effect.
Although this meeting at the Union Street plant was
held after the arbitrator's decision and subsequent
recognition of RWD and execution of the North Adams
collective -bargaining agreement , it does not appear that
Martin or Simone (or anybody else) informed the
employees of those events . On the contrary , Martin
testified that at the Union Street meeting , in answer to
questions , he specifically told the employees "you don't
have to join the union , no one is going to lay you off."
His failure to mention or acknowledge the union -security
clause contained in the November 4 contract was
highlighted when, on questioning by the Examiner , Martin
testified as follows:
Q. . . . You say you never told anybody that he'd be
fired if he didn 't join the union , is that so?
A. Absolutely, I wouldn't tell them that.
Q. Not even after you signed a contract with the
union?
A. Not even after it was signed . As a matter of fact,
I think I even violated that contract by not firing them
or letting them go.
Q. At the meeting in the middle of November, at the
Union Street plant . . . . did you tell the employees
then that they didn't have to join the union?
A. I always repeated it, all the time. As a matter of
fact, I tell them you don't have to, regardless of what
they tell you.
Employee Lucy Desmoreaux testified that early in
October she was called into Simone's office and asked the
identity of the ILG supporters ." She was also asked if she
had signed a union card , to which she replied in the
negative. Around the middle of November Desmoreaux
and Ed Kenyon , her superior, had an exchange of
unpleasantries , whereupon she was sent to Simone 's office
to see Simone and Martin . According to her , she was
again asked the identity of the ILG supporters. On
Simone ' s desk was a list of five employees ; Simone and
Martin "wanted to know if there was more" ILG
supporters. According to Simone and Martin, the list of
ILG supporters had been provided by Pave on his own
motion . They denied that they had asked Desmoreaux
"Employee Bokowski dated this event as the day after the ILG meeting,
which was held on November 8. Other evidence , however . establishes the
correct date as on or about November 16.
about additional ILG supporters, maintaining, instead,
that Desmoreaux volunteered to supply the information to
prevent her discharge, which had been requested by
Kenyon. The Kenyon matter was resolved by mutual
apologies between Kenyon and Desmoreaux and the
latter's transfer to the Union Street plant. Martin testified
that he transferred Desmoreaux rather than firing her
because she was a good worker and he "didn't want a
good employee that could become an agitator out in the
street for any other activity." On all the evidence, the
Examiner credits Desmoreaux's testimony concerning the
two occasions on which she was questioned concerning the
identity of the ILG adherents.
On November 16, Gross and Joe Amadio, another ILG
organizer, distributed leaflets near the State Road plant as
employees were leaving at closing time . Simone , who was
sitting in an automobile outside the plant, got out of the
car and hit Amadio in the shoulder while grabbing the
leaflets Amadio was holding. Gross approached Simone,
who then said that the leaflet was "a lie" in quoting
Simone as having told the employees that they "have no
union." Simone remained at the site for a short while,
during which he told passing employees not to take the
proffered pamphlets. Employee Belanger saw the ILG
pamphlets on Simone 's desk the next day, at which time
Simone referred to his "trouble" with ILG. In view of this
circumstantial corroboration and the absence of any
contradiction by Simone or any other witness, the
Examiner credits Gross' testimony concerning this event,
even though he was unreliable in other portions of his
testimony.
On November 14, employee Belanger was laid off.
When, on November 17, she asked why she had been
chosen for layoff, Simone indicated that the selection was
made on the basis of seniority. Belanger expressed the
opinion that she was chosen because she refused to join
RWD, whereupon, according to her, Simone asked her
why she would not join. When she made a slightly veiled
threat to call on ILG to secure for her the layoff slip she
had not been given, Simone said, "Please don't do this.
I've had trouble with the Union outside yesterday," and
pointed to a stack of ILG handbills on his desk.
That afternoon Belanger spoke to shop steward Sady
Hurlburt,2° who said she was sure Belanger would be back
at work forthwith if she signed a union card . 21 Belanger
signed a card the next day, Saturday, November 18, and
went back to work on Monday.
Around November 14 the following notice appeared on
the Company's bulletin boards:
THURSDAY , NOVEMBER 23RD IS A PAID UNION HOLIDAY.
ALL UNION MEMBERS ARE ELIGIBLE FOR A DAYS PAY
PROVIDED THEY WORK THE DAY BEFORE AND THE DAY
AFTER....
Simone testified that the wording of that notice was a
mistake made by the typist, whom he had simply told to
prepare a notice of the holiday with no specific
instructions . Martin and Simone testified that the
"Although the record does not disclose her answer , Desmoreaux testified
that she replied that she did not know . The record is hereby corrected as
follows: p. 117. I. 23 corrected to read "A. I said I didn't know."
"Hurlburt had become a supervisor by the time of the hearing.
"Belanger also testified that Hurlburt said she had called Belanger at
Simone's request. Because of the hearsay nature of this testimony, the
Examiner bases no finding on it, despite the absence of any specific
objection. However , it may be noted that Simone did not deny that he had
asked Hurlburt to call Belanger and Hurlburt, though a supervisor in
Hunter 's employ at the time of the hearing , was not called as a witness.
HUNTER OUTDOOR PRODUCTS 455
inadvertent error was discovered within a short time after
the notice was posted and that it was soon taken down
and replaced by a revised notice announcing the paid
holiday for all employees. The typist who allegedly made
the "inadvertent error" was not produced to testify; nor
was her absence explained. Martin testified that "We
always put up a holiday notice . . . like Christmas you
have to work the day before and the day after. You have
to explain what date because it's a Friday so you have to
work Thursday and Monday." If the preparation and
posting of such notices was so routine as to be delegable
to a typist without specific instructions , it is difficult to
imagine an explanation for her having "inadvertently"
drafted the original notice carefully limiting the paid
holiday to union members. The Examiner also finds
significant Hunter's failure to retain a copy of the alleged
corrected notice, particularly in view of the Company's
painful awareness of the raging rivalry between RWD and
ILG. A handbill distributed by ILG on or about
November 21 reads in part:
On Tuesday, November 14, 1967, a notice, put out by
the Company, stated that only Union members would
receive the Thanksgiving Holiday Pay. The I.L.G.W.U.
then put out a leaflet informing you that everyone who
is eligible for holiday pay must receive it. When the
Company realized that a real Union was around, they
changed their minds.
In addition, employee Joanne Shook credibly testified that
at the November 16 meeting at the Union Street plant,
Martin "said we had to - - - belong to the Union in order
to get paid for" Thanksgiving Day. On all the evidence,
including observation of the demeanor of the witnesses,
the Examiner discredits Hunter's explanation and fords
that the original notice was advertently and intentionally
drafted to announce a paid Thanksgiving holiday only for
RWD members.
It was also around the middle of November that
Hunter instituted a series of raffles for TV sets in an
attempt to improve employees' attendance." Martin
testified that the raffle plan was suggested by Pave in
response to Martin ' s complaint concerning absenteeism."
According to employee Shook, at the Union Street
meeting on November 16 Martin announced the TV raffle
'program as being open only to union members. Employee
Cole, who, as previously noted , served as a shop steward
for RWD, testified as follows concerning certain
authorization cards she secured sometime in November:
Those three people wouldn't sign a card until they
offered to give a television, saying for anyone who
belonged to the Union. That's why they signed, to be
eligible for the television.
There was also considerable credited testimony that on
various occasions Pave and several of the shop stewards
informed employees that raises, holiday pay and other
benefits, including the TV raffles, would be granted only
to RWD members.
"Each week one name would be drawn from those of employees who
had worked a full 40 hours the prior week . The winner would receive a
black -and-white television set . Around Christmas, there would be a
drawing for a color television act among employees who had worked 40
hours in each of the intervening weeks.
"Martin also testified that he refused Pave 's request that the raffles be
conducted as a joint activity of RWD and Hunter. Martin 's testimony in
this connection was: "[Pave ] wanted to make [it] a joint company and
union effort , that he would split the bill down the middle , 80 percent us
and 20 percent him, I don ' t know how that 's down the middle."
On November 17 ILG filed its first charge against
Hunter, alleging unfair labor practices on six dates
between August 23 and November 16. On November 21,
ILG filed a representation petition, which is still pending,
and its first charge against Local 29 on November 21,
alleging a violation on or about August 23. Amended
charges were filed against both Hunter and Local 29 on
various dates through January 12, 1968.
On January 18, 1968, ILG demanded recognition as
bargaining representative of Hunter's North Adams
employees. This constituted the first communication
between ILG and Hunter.
With decreasing frequency, Simone met with RWD's
shop stewards for an undisclosed period of time. 14 In
addition, apparently for about 3 months, RWD dues were
checked off. Other than these two matters, no effect
appears to have been given to the recognition of RWD or
to the collective-bargaining agreement. It does not appear
that the employees were informed of the execution of the
November 4 contract and copies of neither the New York
nor the North Adams agreement have been made
available to them.
As previously noted, Hunter has ignored the
union-security clause, apparently without comment or
objection by RWD. In mid-November, Martin and
Simone unequivocally informed the employees that the
company was in complete and unfettered control, without
even a nod to the provisions of the agreement, including
the grievance provision." Since then Hunter has
transferred work and machinery from North Adams to
Long Island City, with a smaller amount being moved in
the opposite direction. Martin also said that some
nongovernment work is being transferred from North
Adams to the Philadelphia plant because of the
production difficulty caused by absenteeism in North
Adams. At the hearing, in April 1968, Martin testified
that the movement of machinery would continue "until we
put the bulk of machinery back into Long Island City." It
is anticipated that the State Road plant will be closed
within the relatively near future and that within about a
year the North Adams plant will operate economically on
its own nongovernment work, without work transferred
from New York. At no time has Hunter discussed the
movement of work, machinery and some personnel
between North Adams and Long Island with RWD. On
the contrary, Martin testified that Hunter "can't afford
to" discuss the matter with the union. He then volunteered
that "When [Pave] calls, I deny half of it."
Further, despite the ostensible recognition of RWD and
the collective-bargaining agreement, Martin maintained
that in February 1968, after ILG had demanded
recognition, he invited ILG representatives to visit the
plant to check their authorization cards against the
"In the course of his testimony concerning the Booth incident in
November, Martin said : "There was a meeting, this was a meeting of shop
stewards , which either Mr. Simone either gathered up once a week or set
up a tentative discussion once a week , then it was supposed to have been
every two weeks, then once a month, of shop stewards with the complaints
.. rather than every five minutes get involved in some kind of grievance,
there were fantastic amounts of complaints ...."
"For example , on cross-examination Simone testified as follows
concerning his talk to the Union Street employees around November 13:
Q. ... Did you tell the people that you could move them around from
one machine to the other whenever you wanted?
A. Yes, and I can.
Q. And you told them that you had plants in New York and
Philadelphia and you could send the work there?
A. Yes, and if they hadn't gone back to work, I'd have done it...: .
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's records. He testified that on April 23, 1968, in
the hearing room, he again invited an ILG representative
to come to the Company and "put their cards on the
table" if ILG thought it represented a majority of the
employees. Such invitations, of course, would be
inconsistent with Hunter' s recognition of RWD and its
insistence "upon the validity of the Agreement,"" which
purportedly does not expire until November 4, 1970.
B. Discussion and Conclusions
1. Recognition and execution of agreement
Although the complaint alleges numerous violations of
Section 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2), the
major matter at issue is the status of the
collective- bargaining agreement signed on November 4.
Succinctly put, Hunter' s aim is to retain that agreement
as a bar to any attempt by ILG (or any other union) to
represent Hunter's employees.27 Hunter is in the
paradoxical position of claiming the benefits of a contract
which the union attempted to renounce and to which
Hunter itself has not given even token enforcement except
for checking of some union dues. Perhaps even more
anomalous is the fact that Hunter can lay a colorable
claim to the protection of the November 4 agreement only
by establishing, in effect, that Hunter violated Section
8(a)(5). Its argument is that it was legally obligated to
recognize and bargain with RWD on September 29, when
RWD acquired representative status and made its
demand. That being so, the argument proceeds, the
subsequent recognition and execution of a contract were
not only permissible but mandatory, even if belated :e
The minor premise of Hunter's syllogism, namely that
RWD was the authorized bargaining representative of the
unit employees, will now be examined.
At the outset, as stated in the order of July 16, 1968,
the Examiner rejects Hunter's contention that the
arbitrator's decision conclusively establishes RWD's status
as the statutory representative of the unit employees. That
decision clearly shows that the arbitrator was not
empowered to and did not look into the circumstances
under which the cards were solicited and signed; as
prescribed by the stipulation of submission, he limited his
investigation to comparison of the signatures on the cards
with employees' signatures in Hunter's records. Further
the arbitrator did not consider whether any of the cards
"In opposition to approval of the settlement agreement of RWD and the
General Counsel , Hunter's brief says- "[Hunter] is now bound by the
Agreement with [RWD ] and it intends to continue to comply with
Agreement . To approve withdrawal by one party to the Agreement prior to
the conclusion of litigation and while the other party continues to insist
upon the validity of the Agreement, is to make a shambles out of the
collective- bargain mg process."
"At the hearing , Hunter's counsel said on the record . "We are prepared
to settle the 8(axl) charges 100 percent, but we feel it ' s imperative in the
best interests of the Company to fight to retain the contract that we have
negotiated , to fight to defend against the 8 (ax2) and 8(aX3) charges "
"Hunter 's brief states the argument as follows " . in September 1967,
at the time of the request to bargain , Respondent was obligated in
accordance with Board law to bargain with [RWD]. Indeed , once a neutral
third party had reaffirmed this obligation , Respondent could not have
demanded a secret- ballot election , nor contended that the ILG had entered
the scene and created a question concerning representation For the
General Counsel to now allege that recognition of. negotiation with, and
subsequent execution of an agreement with this Union violates the Act and
files in the face of Board precedent . Respondent was bound to do what it
did, and to now allege otherwise is to make Board precedent meaningless
to any employer that attempts to comply with the Act "
were not to be counted because the signer had also
executed an ILG card. Employee Desmoreaux, whose
RWD card is dated October 13, testified that she also
signed an ILG card.:9 Since the arbitrator thus did not
pass on the crucial question presented in the instant
proceeding, his conclusion is not binding, or even
persuasive, here.30 Cf. Intalco-Aluminum Corp., 169
NLRB No. 136.
The evidence reviewed above indisputably establishes,
and the Examiner finds, that RWD never represented an
uncoerced majority of the unit employees. All the cards
were signed after Pave, RWD's president, had informed
the employees that, whether they liked it or not, they were
represented by RWD and covered by the contract then
outstanding at the New York plants, which contract
contained a "closed shop" provision requiring them to
join the union within 30 days or lose their jobs. It would
be difficult to imagine a more threatening and coercive
representation made in course of soliciting union
authorizations. It would be unthinkable to hold that union
cards signed under such circumstances reliably reflected
the employees' free choice. RWD's statements were made
to all the employees and its coercive conduct was
pervasive throughout the plant. Cf. Jan Power Inc.;
Maintenance Service, 173 NLRB No. 120. The Examiner
holds that RWD's representations to the employees in
September were violative of Section 8(b)(1)(A). RWD
membership and authorization cards signed on the basis of
such statements cannot be relied upon to establish
representative status. Acceptance of recognition and
execution of a union-security agreement accordingly were
violative of Section 8(b)(1)(A) and (2).
Since RWD did not represent an uncoerced majority of
Hunter's employees at any time," Hunter's recognition of
RWD and execution of a union security agreement were
violative of Sections 8(a)(1), (2), and (3), regardless of the
nature and quality of Hunter's own conduct. I.L.G.W.U.
(Bernhard-Altmann Texas Corp.) v. N.L R.B., 366 U.S.
731. See also Department Store Food Corp. of Penna.,
172 NLRB No. 129, (TXD), Allied Supermarkets, Inc,
169 NLRB No. 135, N.L.R.B. v. Williams, 396 F.2d 247
(C.A. 7). The legal underpinning of this holding is set out
in the Examiner's order of July 16, 1968, attached hereto,
and will not be repeated here.
"In view of the fact that the ILG campaign did not begin until October
1, none of the cards establishing RWD's numerical majority on September
29 could be discounted for this reason
"Hunter does not contend that the unit here involved is an accretion to
that covered by the Long Island contract , and could not so argue
consistently with its position that the arbitrator ' s award is binding Thus, it
is unnecessary to pass on the General Counsel' s contention that the
arbitrator 's decision on the accretion issue is conclusive here . If necessary,
the Examiner would hold that the arbitral decision was not conclusive on
that question The Horn & Hardart Co., 173 NLRB No 164,
Patterson -Sargent Div of Textron, 173 NLRB No. 203 Had RWD chosen
to urge its "accretion " claim in defense to the present complaint the
Examiner would hold, in agreement with the arbitrator , that Hunter's
North Adams employees are not covered by the contract previously
executed in New York Cf. International Paper Co, 171 NLRB No. 89;
Sunset House , 167 NLRB No 132.
"This conclusion renders academic the question of RWD 's numerical
majority and the subsidiary question whether the authorization cards
placed in evidence by Hunter were sufficient to establish RWD's numerical
strength . If the questions were still involved , the Examiner would hold that,
since the burden of proof was on the General Counsel to establish the
absence of an uncoerced majority, the introduction by Hunter of cards
received by RWD in the course of the campaign and regular on their faces
was sufficient to place on the General Counsel the burden of going forward
with evidence to invalidate the cards This ruling finds additional support
in the offer by Hunter 's counsel to permit the inspection of Hunter's
HUNTER OUTDOOR PRODUCTS 457
Suffice it to say here that finding Hunter derivatively
guilty of unfair labor practices is not equivalent to and
does not entail ascribing to Hunter the conduct of RWD's
representatives. As will be seen below, the complaint does
not allege and the Examiner does not find that Hunter is
responsible for any of the conduct of RWD's agents.
Similarly, while there may be grounds for suspicion, the
complaint does not allege and the Examiner does not find
any "conspiracy" or "concert of action" between the
Respondents. It is Hunter's own conduct in recognizing
and contracting with RWD which constituted Hunter's
unfair labor practices. The law places on employers an
obligation to deal only with representatives freely chosen
by the employees. Hunter proceeded at its own risk when
it accepted the arbitrator's award without having
empowered the arbitrator to Icok into the circumstances
surrounding the execution of the cards.':
At the hearing and in posthearing motions Hunter
objected to the Examiner's consideration of evidence
against RWD in deciding the complaint against Hunter.
In the order of July 16, 1968, the Examiner rejected
Hunter's position and set forth the reasons therefor. To
supplement the discussion in that order, reference is here
made to the Board's decision in Crown Discount
Department Stores, 172 NLRB No. 89. In that case the
respondent union objected to consideration of
conversations between management and employees as
evidence against the union. The Examiner overruled the
objections and the Board affirmed all the Examiner's
rulings. While the Examiner apparently based his ruling
on a finding that the union and the employer were acting
in concert, the Board did not accept that rationale,
expressly saying: "We do not adopt the Trial Examiner's
finding" that the "Respondents had some prior
understanding about, or had prearranged, the Union's
organizing campaign."
Additional comments appear to be in order concerning
Hunter's contention that, with RWD having waived its
right to present evidence in its defense, Hunter should now
be allowed to present a defense to the allegations against
RWD because of Hunter's potential derivative liability.
First, it may be noted that Hunter was afforded and
availed itself of the opportunity to cross-examine all of the
General Counsel's witnesses. At the hearing the Examiner
made clear that Pave was subject to subpoena, but Hunter
chose not to request a subpoena when the parties agreed
that Hunter could introduce the RWD authorization cards
without having Pave present to identify them.
It cannot be denied, however, that Hunter reasonably
came to the hearing not fully prepared to defend against
the portions of the complaint alleging misconduct by
RWD. Hunter quite reasonably left that defense to RWD.
It is also true that, at least theoretically, Hunter might
records by the General Counsel and to make available for testimony any
employees as to the authenticity of whose cards the General Counsel had
any doubt or question . In addition, it is unnecessary to decide whether the
arbitrator ' s decision is conclusive as to RWD's numerical strength. It
should be noted , however, that the employees here involved were not
represented in the arbitral proceeding , which was held for the purpose of
determining whom they chose to have as their collective - bargaining
representative . Finally, it is not necessary to decide whether , as Hunter
contends , an uncoerced majority on September 29 would warrant
recognition a month later without regard to intervening events. Cf. Sound
Contractors Assn ., 162 NLRB No. 45.
"The Examiner cannot resist speculating as to what Hunter 's position
and course of conduct would have been if ILG had not come on the scene
and RWD had initiated a refusal-to-bargain proceeding under Section
8(ax5).
conceivably have been able to secure evidence
contradicting and refuting that of the General Counsel. It
may be noted, however, that RWD was unsuccessful in its
defense to the preliminary injunction action under Section
10(j). Kowal v. Hunter Outdoor Products, Inc, 286
F.Supp. 373 (D. Mass.). Early in the present hearing,
Hunter moved that the record in the injunction trial be
introduced as evidence in the present case. Hunter's
motion for leave to defend RWD is only as an
"alternative" to RWD's presenting its own defense.
Hunter manifestly was willing to rely on RWD's defense
if it presented one. And Hunter has not alleged, or even
suggested that RWD's decision not to present evidence
was improperly motivated.
Absent an allegation and some showing of reasonable
cause to believe that RWD's waiver of the right to present
evidence was improperly motivated, it must be presumed
that it was the result of the honest exercise of judgment by
counsel. Since, as previously indicated, Hunter was leaving
the defense of RWD to the judgment of RWD's counsel,
there is no reason to permit further litigation by Hunter
because it apparently now questions the judgment of
RWD's counsel.
More basically, however, it would not effectuate the
policies of the Act to place Hunter, the employer, in a
position where, through litigation, it might foist upon the
employees as their representative a reluctant union, which
virtually admits it never attained majority status or deny
the employees the right to choose a representative.
Since execution of the collective-bargaining agreement
was violative of the Act, Respondents also committed
unfair labor practices in effectuating union dues checkoffs.
Newport Window Cleaning Co., 170 NLRB No. 131,
TXD.
In addition to alleging the improper checkoff of RWD
dues, the complaint alleges generally that Hunter violated
the Act by "maintaining and administering a
collective-bargaining agreement, containing union security
provisions." Although the evidence heretofore summarized
discloses that the collective-bargaining agreement,
including the union security provision, was almost
completely ignored by the parties, Hunter did "maintain"
it as a potential contract bar should ILG at some time
press its claim to representative status. Nonenforcement of
the contract does not preclude an appropriate finding and
remedial order. Crown Discount Department Stores, 172
NLRB No. 89.
2. Additional alleged violations by Hunter
The General Counsel contends that Hunter unlawfully
assisted RWD in September by letting Pave address the
employees on working time, permitting a notice of the
RWD meeting to be posted on Company premises, and
allowing RWD shop stewards to solicit memberships on
working time.
The Examiner has hitherto found, contrary to the view
of the General Counsel and the Charging Party, that the
ILG campaign did not begin until October 1, after the
events here under discussion. The evidence shows that, at
least until ILG appeared on the scene, Hunter's major
goal was to prevent any unionization by its North Adams
employees. Hunter's accommodation to Pave's demands
was reluctant, dictated by Pave's threats to prevent further
transfers of work and equipment out of Long Island.
Neither Martin nor Simone took any affirmative action to
foster support for RWD. On the contrary, he made clear
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his personal opposition to having RWD or any other
union at the North Adams plant.
Under the circumstances, particularly the absence of
organizational activity by any other union, the Examiner
believes that Hunter's conduct through the end of
September constituted permissible cooperation with RWD
within the principles enunciated in Jolog Sportswear, Inc.,
128 NLRB 886, 888-889 , affd. sub nom. Kimbrell v.
N.L.R.B. 290 F.2d 799 (C.A. 4). See also, e.g., Coamo
Knitting Mills. Inc.. 150 NLRB 579, 581-582; Evans
Supermarkets, Inc., 171 NLRB No. 193 (TXD); Mace
Food Stores Inc., 167 NLRB No. 60 (TXD). Accordingly,
the Examiner will recommend dismissal of the complaint
insofar as it alleges violations of Section 8(aX2) and (3) in
September."
Hunter's goal and conduct changed rapidly and
radically when the ILG launched its campaign.
Commencing on October 4, the morning after ILG
supporters became vocal at the RWD meeting," Martin
and Simone met with all the employees and made clear
Hunter's strong preference for RWD over ILG or any
other union . Thereafter they frequently repeated this
theme. In its brief, Hunter concedes that, "Obviously,
[Hunter] preferred [RWD] in order to keep the
Government work flowing smoothly from Long Island
City to North Adams and ultimately, in order to keep the
North Adams plants from closing." Martin' s expressions
of preference went considerably further, including
unqualified threats to close the North Adams plants and
give the keys to ILG if it became the employees'
bargaining agent . Whatever fears Martin may have had of
interunion rivalry, Hunter was legally required to
maintain strict neutrality as between the rivals. See
N.L.R.B. v. Keller Ladders Southern, Inc., 405 F.2d 663
(C.A. 5); Hughes & Hatcher, Inc. v. N.L.R.B., 393 F.2d
557 (C.A. 6). Hunter's fears of possible RWD reprisals or
other adverse economic effects of organizational activity
by ILG do not warrant restriction of the employees'
statutorily protected freedom of choice. See Global
Automotive Enterprises, 172 NLRB No. 69 (TXD).
As stated above, the no-solicitation and no-distribution
rule was orally announced at the October 4 meeting,
which was called as a direct response to the
commencement of ILG activity. On all the evidence, the
Examiner finds, as alleged in the complaint, that the rule
"Although Pave had previously stated his position to Martin that the
New York contract automatically applied to the North Adams plant and
had threatened Martin with preventing the transfer of work from Long
Island City to North Adams, the Examiner believes that , on the present
record , Martin cannot be charged with constructive knowledge that Pave
would present such views to the employees with the appearance of
indisputable fact or as threats . Pave 's requesting an opportunity to speak
to the employees would tend to indicate his abandonment of a claim to
automatic recognition and his intention to attempt to organize the North
Adams employees by conventional means.
"Simone testified emphatically concerning his prompt knowledge of all
union activity . He said:
I have four hundred people or so working and 395 of them are
informers ...
Q. (By Mr. Kelleher) Did some of the informers inform you about
ILG union activity?
A. Yes, they told me there was going to be a meeting . Then they'd tell
me they 're going to tell me who 's in the meeting . Then of course I get it
the other way, too.
Q. And in addition to telling you that there was going to be a
meeting, did you sometimes hear on the day following that there had
been a meeting the previous night?
A. Yes, word for word anything that happened , which, by the way. I
file in the wastebasket."
was promulgated "under circumstances designed to convey
the impression that such rule would be applied only to the
activities of the I.L.G.W.U. and not to the activities of
Respondent R.W.D.S.U." Further, the evidence
establishes that the rule was discriminatorily enforced
against ILG. Booth , for example, was singled out and
threatened with discharge, not for violation of the rule as
such, but specifically for solicitation on behalf of ILG. Cf.
United States Railway Equipment Co., 172 NLRB No.
51, (TXD). This discriminatory application of the rule was
violative of Section 8(a)(2) and (1). H & F Binch Co., 168
NLRB No. 128 (TXD); Spartan-Atlantic Dept. Stores,
169 NLRB No. 47 (TXD), enfd. sub nom. Spartans
Industries, Inc. v. N.L.R.B., 406 F. 2d 1002 (C.A. 5).
Similarly, the initial announcements that Thanksgiving
Day pay, the TV raffles, general wage increases, and
improved benefits would be limited to RWD members
were violative of Section 8(a)(2) and (1) even though such
benefits were thereafter granted to all employees.
The threats to close the plants if the employees chose to
be represented by the ILG also were violative of Section
8(a)(2) and (1). Newport Window Cleaning Co., 170
NLRB No. 131 (TXD); Tuscarora Plastics Co., 167
NLRB No. 154 (TXD); Crown Discount Department
Stores, supra, 172 NLRB No. 89. Martin's statements in
this connection could not qualify as mere "predictions" of
"demonstrable 'economic consequences."' N.L.R.B. v.
The Sinclair Co., 397 F.2d 157 (C.A. 1); Global
Automotive Enterprises, supra, 172 NLRB No. 69 (TXD).
And Simone's statements that dissatisfied employees could
leave and work elsewhere was violative of Section 8(a)(l).
Mel Croan Motors, Inc., 163 NLRB No. 77, enfd. in
pertinent part 395 F.2d 154 (C.A. 5).
The Examiner also finds that Hunter, through vice
president Martin coercively interrogated employee
Desmoreaux concerning employees' sympathies for ILG
and concerning Desmoreaux's reasons for refusing to sign
an RWD card in violation of Section 8(a)(1) and (2). See
Crown Discount Department Stores, supra (TXD). Hunter
also unlawfully created the impression of surveillance in
conspicuously displaying a list of supposed ILG partisans.
Further, Simone's undenied assault on an ILG
organizer, his confiscation of ILG leaflets, and his conduct
in telling employees not to take any ILG leaflets were
violative of Section 8(a)(1). That a criminal charge against
Simone because of this incident was dismissed is not
decisive in the instant proceeding. The relevant provisions
of local criminal law are not shown in the present record.
Nor are details concerning the criminal proceeding set
forth. It does appear, however, that the dismissal was
based on the absence of proof of a battery, with the
criminal complaint alleging assault and battery.
Additionally, of course, the standard of proof is
considerably more stringent in a criminal proceeding than
in an unfair labor proceeding. Finally, conduct short of
criminal assault directed against a union organizer in the
presence of employees may well interfere with the
employees' Section 7 rights . Related to Simone' s assault
on Gross, and clearly violative of Section 8(a)(1), was
Simone's telling employees not to take the ILG pamphlets
which were being distributed at the time. Marlene
Industries Corp., 166 No. 58, enfd. in major part sub
nom. Decaturville Sportswear Co. v. N.L.R.B., 406 F.2d
886 (C.A. 6).
Hunter also violated Section 8(a)(1) and (2) when
Martin persuaded employee Cole not to resign as shop
steward for RWD. The union activities of employees are
no legitimate concern of the employer. Hydraulic
HUNTER OUTDOOR PRODUCTS 459
Accessories Co., 165 NLRB No. 130 (TXD); Lever
Brothers Co., 163 NLRB No. 29.
The complaint also alleges that the wage increase
effective October l was violative of the Act because
granted "under circumstances designed to instill in the
minds of its employees the belief that the wage increase
was attributable to the efforts of Respondent RWDSU
and not to the rival ILGWU." The Examiner holds that
the General Counsel has failed to prove this allegation.
There is no evidence concerning the date on which or the
circumstances under which the raise was announced.
Although Pave had said in his September meeting that
there would be a 10-cent raise in October , there was no
evidence that Hunter was privy to this statement . Nor was
this deficiency remedied by the inclusion of a provision for
that increase in the collective-bargaining agreement later
executed . So far as appears , the increase may well have
been decided upon and even announced before ILG came
into the picture . Even if, as seems likely, the increase was
parallel to one provided in the New York agreement, it
would not follow that Hunter gave RWD credit therefor
in announcing it to the North Adams employees. And
there was no affirmative evidence to that effect.
3. Additional alleged violations by RWD
It has hitherto been found that Pave, RWD's president,
threatened and coerced the unit employees by representing
that they were covered by the union-security provision of
the New York contract and thus had to join RWD within
30 days or lose their jobs. As already held, such conduct
was in contravention of Section 8(b)(1)(A) of the Act.
The record further discloses that RWD shop stewards
solicited both membership and checkoff cards by threats.
For example , employees Gaylord , Shook, and Bokowski
testified that shop steward Irene Stachura told them that
they would be fired and/or would be deprived of raises
and paid holidays if they did not join the union within 30
days. Shook attributed similar statements to chief shop
steward Madeline Serrano . According to Bokowski, in
answer to a specific question Serrano said she did not
think the employees would be dismissed if they did not
join the union within 30 days but that they would be
denied raises and paid holidays unless they j oined within
60 days. Employee Shook testified that she was told by
shop steward Carol Barbo that employees would be denied
raises and paid holidays if they did not sign dues-checkoff
cards . Both Stachura and Serrano were quoted as having
informed employees , in line with similar statements made
by Pave and Martin , that there was an existing contract
which had been voted on and signed in New York and
then brought to North Adams.
As outlined above , then shop steward (now supervisor)
Hurlburt had employee Belanger sign an RWD card on
the representation , which proved accurate , that Belanger
would forthwith be recalled from her layoff status. And
Cole, in her capacity as shop steward , had Booth sign an
RWD card as a means of averting dismissal.
Employee Booth testified that on December 7 all the
shop stewards solicited dues checkoff cards while the
employees were working . In soliciting Shook 's checkoff
card , shop steward Cyrella Gertezen said she was required
to wait at Shook ' s machine until she received the executed
card . Employee June Rancourt generally corroborated the
solicitation of checkoff cards by all the shop stewards at
the machines on one occasion , but she was less precise
about the date than Booth was.
The shop stewards' statements were clearly coercive and
thus violative of Section 8(b)(1)(A). Crown Discount
Department Stores, supra, 172 NLRB No. 89. The Union,
of course, is responsible for the conduct of the stewards.
See Local 825, International Union of Operating
Engineers, AFL-CIO (Morin Erection Co.), 168 NLRB
No. 1 (TXD), fn. 4: "It is well established by the Board
and the courts that a union is responsible under the Act
for the unlawful conduct of a job steward acting within his
general scope of authority."
The General Counsel also maintains that RWD violated
Section 8(b)(1)(A) when Serrano sat in front of the
Phoenix Hotel while employees were arriving to attend the
ILG meeting on November 8. Gaylord also quoted
Stachura as having said she knew what employees were
trying to bring the ILG into the plant. The General
Counsel, however, cites no authority for his contention
that this "surveillance" by union representatives violates
Section 8(b), nor has the Examiner's independent research
adduced any such authority. In the absence of evidence
that Serrano and Stactura, as union representatives, were
acting at the request of or under agreement with Hunter
and would inform Hunter of the identity of the employees
supporting the ILG,36 it is the Examiner's opinion that
Serrano's and Stachura's observational activities were not
improper. Rival unions would have legitimate interest in
the sources of each other's support. Absent a concert of
action between RWD and Hunter, there is no apparent
way that Serrano could use her knowledge to the
detriment of the employees and no reason to suppose that
employees would be "restrained" by the "spying" of
fellow employees supporting a rival union. In short,
independent "surveillance" by a union, without employer
complicity, does not appear to be violative of the Act.
CONCLUSIONS OF LAW
1. Since on or about October 4, 1967, Respondent
Hunter has engaged in unfair labor practices in violation
of Section 8(a)(2) and (1) by discriminatorily
promulgating and thereafter applying a no-solicitation and
no-distribution rule against organizational activities on
behalf of ILG while permitting such activity on behalf of
Respondent RWD; by persuading an employee to retain
her position as a union shop steward; by threatening
employees with deprivation of wage increases, holiday pay
and other benefits if they did not join RWD; interrogating
an employee concerning employee activity on behalf of
ILG and concerning her refusal to join RWD; and by
recognizing RWD as collective-bargaining representative
on October 27, 1967, when RWD did not represent an
uncoerced majority of the employees in the appropriate
unit.
2. Since on or about November 4, 1967, Respondent
Hunter has committed unfair labor practices in violation
of Section 8(a)(1), (2), and (3) by signing and maintaining
a collective bargaining agreement , containing a union
security provision, with RWD, which did not represent an
uncoerced majority of the employees in the appropriate
unit; and in checking off RWD dues when RWD did not
represent an uncoerced majority of the unit employees and
the employees had not given uncoerced authorization
therefor.
"Again, there may be reason to suspect that Serrano and Stachura
would inform Hunter' s management , just as Pave had provided Hunter
with a list of leading ILG supporters. However, such suspicion does not
rise to the level of proof.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Since on or about October 4, 1967, Respondent
Hunter has committed unfair labor practices in violation
of Section 8(a)(1) by threatening closure of Hunter's
North Adams plants if the employees chose to be
represented by ILG; by interrogating employees
concerning employee activities on behalf of ILG; by
keeping employees' union activities under surveillance and
creating among the employees the impression of such
surveillance; by telling employees not to accept ILG
literature; and by physically assaulting an ILG
representative in view of employees.
4. Since around the middle of September 1967
Respondent RWD has engaged in unfair labor practices in
violation of Section 8(b)(1) (A) by threatening to prevent
work from reaching the North Adams plants of Hunter
Outdoor Products, Inc., if the employees did not choose
to be represented by RWD; by informing the employees
that they were already represented by RWD and covered
by a collective-bargaining agreement which required them
to join RWD within 30 days or be discharged; by
threatening employees with loss of wage increases, holiday
pay and other benefits if they did not join RWD; and by
promising reinstatement to a laid-off employee if she
joined RWD.
5. Since on or about October 27, 1967, Respondent
has engaged in unfair labor practices in violation of
Section 8(b)(2) and 8(b)(1) (A) by accepting recognition
by Respondent Hunter as collective-bargaining
representative of Hunter's production and maintenance
employees in North Adams, Massachusetts, on October
27, when RWD did not represent an uncoerced majority
of such employees; and by executing a collective
bargaining agreement with Hunter on November 4, 1967,
and thereafter maintaining said agreement and receiving
dues payments unlawfully deducted by Hunter pursuant to
that agreement.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The record fails to establish that Respondents have
engaged in any unfair labor practices other than those
found above.
THE REMEDY
Having found that Respondents engaged in widespread
unfair labor practices for the ultimate purpose of
preventing Hunter's North Adams employees from
making a free choice of a collective bargaining agent, the
Examiner will recommend broad cease-and-desist orders
and affirmative provisions customary in cases like the
present, in which employers recognize and execute
collective bargaining agreements with unions which do not
represent uncoerced majorities of the unit employees.
The General Counsel and the Charging Party also
contend that the orders should contain special remedial
provisions adapted from such Board orders as J. P.
Stevens & Co., 157 NLRB 869; idem., 163 NLRB No.
24; H. W. Elson Bottling Co., 155 NLRB 714, modified
379 F.2d 223 (C.A. 6); Scott's Inc., 159 NLRB 1795;
Marlene Industries, 166 NLRB No. 58; and Garwin
Corp., 169 NLRB No. 154. The Examiner agrees that to
some extent special remedial provisions are appropriate in
the present case.
Because the record shows that Martin personally spoke
to the employees with a conscious effort on his part to
maintain a personal relationship with them and that he
signed the collective-bargaining agreement, the Examiner
believes that effectuation of the policies of the Act
requires that Martin personally inform the employees of
the requirements of the Act and of Hunter's intention to
comply therewith. In addition, because of the separation
of the plants here involved from Hunter's home office and
the Long Island plants at which RWD has a
collective- bargaining agreement, it is essential that the
North Adams employees be assured that the top
management of Respondent Company, not merely the
North Adams management , acknowledge the requirements
of the order. For these reasons, the Examiner will
recommend that Martin be required to sign the notice on
behalf of the Company and personally read the notice to
the North Adams employees. For similar reasons, the
Examiner will recommend that the RWD notice be signed
by Joel Pave, president. Further, since Respondent
Company first introduced Pave to the North Adams
employees and told them of RWD's status as
collective- bargaining representative at the Long Island
plants and actively assisted RWD after ILG started its
organizing campaign , it appears appropriate to require
that Martin advise the North Adams employees that
RWD has been subjected to requirements similar and
complementary to Hunter's. Similarly, so that all
employees, including those who for some reason may be
unable to attend the meeting or meetings at the plants,
may be fully informed, copies of both notices should be
sent to each employee. The Examiner believes that the
two notices should be sent together so as to provide a
unified picture. Further, to require RWD to mail copies of
its notice directly to the employees would entail RWD's
being given a list of employees' names and addresses,
which the Examiner believes should not be required at this
time.
The Examiner, however, recommends rejection of
requests by the General Counsel and Charging Party for
additional special remedies. Most of those requests would
afford ILG considerable assistance in organizing Hunter's
North Adams employees. It should be borne in mind that
RWD had secured a numerical majority, though coerced,
before the ILG campaign began . Although it was fully
informed concerning RWD's and Hunter's conduct, ILG
never asked Hunter for an opportunity to address the
employees on Company premises, for access to Company
bulletin boards, parking lots, etc., or for a list of names
and addresses of employees.
ILG's representation petition, filed on November 21,
1967, is still pending and its January 18, 1968, demand for
recognition and bargaining presumably continues. On the
facts in this case, it is the Examiner's opinion that great
care should be taken to avoid remedying past advantage
to RWD by now favoring ILG unduly. The
Recommended Order will, to the greatest extent possible,
eliminate inequality of opportunity between the unions
and leave the employees free to make a choice based on
conventional and lawful methods of campaigning.
The Examiner sees no reason for requiring Hunter to
post notices at locations other than North Adams.
Nothing in the record suggests that RWD is not properly
recognized at the Long Island plants or that the
Philadelphia and Connecticut plants are in any manner
involved in the present situation. To require posting of
notices at these other plants would, in the Examiner's
opinion, constitute gratuitous disparagement of RWD and
advantage to ILG.
HUNTER OUTDOOR PRODUCTS 461
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that:
1. Respondent Hunter Outdoor Products, Inc., its
officers, agents, successors, and assigns, shall:
a. Cease and desist from:
(1) Encouraging membership in Local 29, Retail,
Wholesale and Department Store Union, AFL-CIO, or
any other labor organization of its employees at North
Adams, Massachusetts, under threat of discharge or of
any discrimination in regard to hire or tenure or any-term
or condition or condition of employment, except to the
extent authorized by Section 8(a)(3) of the Act.
(2) Recognizing the above-named RWD as the exclusive
bargaining representative of its North Adams employees
for collective-bargaining purposes unless and until the
National Labor Relations Board shall certify it as such
representative.
(3) Maintaining or giving any force or effect to the
collective-bargaining agreement executed with the
above-named RWD on November 4, 1967, or to any
modification, extension, renewal or supplement thereto, or
to any union checkoff cards executed pursuant to said
agreement; provided, however, that nothing herein shall
require Respondent to vary or abandon any wage, hour,
seniority or other substantive feature of its relations with
its employees which has been established in performance
of that agreement.
(4) Discouraging membership in International Ladies'
Garment Workers' Union, AFL-CIO, or any other labor
organization by coercively interrogating employees
concerning sympathies for and activities on behalf of said
ILG or any other labor organization; threatening
discharge, denial of wage increases, paid holidays or other
benefits if the employees support ILG or any other labor
organization; discriminatorily promulgating, maintaining
or enforcing any rule against solicitation and/or
distribution of written or printed material; maintaining
surveillance of its employees' union activities or creating
the impression of such surveillance.
(5) Encouraging membership in Local 29, RWDSU, by
any of the conduct specified in (4) above.
(6) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to
self-organization, to form, join, or assist any labor
organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities or other mutual aid or protection, or
to refrain from any or all such activities, except to the
extent that such right is affected by the provisions of
Section 8(a)(3) of the Act.
b. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(1) Withdraw and withhold all recognition from Local
29, Retail, Wholesale and Department Store Union,
AFL-CIO, as the collective-bargaining representative of
any of its employees at North Adams, Massachusetts, for
the purpose of dealing with Hunter concerning grievances,
labor disputes, wages, rates of pay, hours of employment,
or other terms and conditions of employment, unless and
until the Board shall certify said labor organization as
such representative of Hunter's employees in North
Adams.
(2) Jointly and severally with said Respondent Local
29, RWDSU, reimburse all present and former employees
at Hunter's North Adams plants for all dues and other
moneys, if any, paid by or withheld from them pursuant
to the terms of the union-security provision of the
collective-bargaining agreement executed on November 4,
1967, or pursuant to any union checkoff authorizations
executed before the date of compliance with this Order,
together with interest at the rate of 6 percent per annum.
(3) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of
reimbursement due under the terms of this Order.
(4) Post at its North Adams, Massachusetts, plants
copies of the attached notice marked "Appendix B."3'
Copies of said notice, on forms provided by the Regional
Director for Region 1, shall, after being signed by Joseph
Martin, Hunter's vice president, be posted by Hunter
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 Hunter to insure that such notices are not
altered, defaced, or covered by any other material.
(5) Post at the same places and under the same
conditions as set forth in (4) above, as they are forwarded
by the Regional Director, copies of the Respondent
Union's notice marked "Appendix C."
(6) Mail signed copies of the attached notice marked
"Appendix B" to the Regional Director for Region 1 for
posting at the offices and meeting places of Respondent
Union, in places where notices to members and employees
are customarily posted. Copies of the notice, on forms
provided by said Regional Director, shall be returned
forthwith to the Regional Director after they have been
signed by Joseph Martin as representative of the
Respondent Employer for such posting.
(7) Immediately upon receipt of signed copies of the
attached notice marked "Appendix C", mail a copy of
said notice together with a signed copy of the attached
notice marked "Appendix B" to each employee of
Hunter's North Adams plants.
(8) Within 1 week after receipt of signed copies of the
attached notice marked "Appendix C," hold a meeting or
meetings of all production and maintenance employees at
Respondent Hunter's North Adams, Massachusetts,
plants, at which meeting or meetings Joseph Martin shall
read the notices marked "Appendix B" and "Appendix
C" in their entirety to the employees.
(9) Notify the Regional Director for Region 1, in
writing, within 20 days of this Decision, what steps
Respondent Hunter has taken to comply herewith.}'
2. Respondent Local 29, Retail, Wholesale and
Department Store Union, AFL-CIO, its officers, agents,
successors, and assigns, shall:
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board 's Order be enforced by a decree of a United States
Court of Appeals , the words, "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Cease and desist from:
(1) Maintaining or giving any force or effect to the
collective -bargaining agreement entered into on November
4, 1967, with Respondent Hunter Outdoor Products, Inc.,
or to any modification , extension , renewal , or supplement
thereto, or to any union checkoff cards executed pursuant
to said agreement.
(2) Acting or purporting to act as the exclusive
collective -bargaining representative of Respondent
Hunter ' s employees at the North Adams plants for the
purpose of dealing with Respondent Hunter concerning
wages , rates of pay, hours of employment , or other terms
and conditions of employment unless and until
Respondent Union shall be certified by the Board as
exclusive collective-bargaining representative of such
employees.
(3) Threatening Respondent Hunter 's North Adams
employees with having them discharged or with having
wage increases , holiday pay or other benefits withheld in
order to have them join Respondent Union.
(4) In any other manner restraining or coercing
Respondent Hunter's North Adams employees in the
exercise of the rights guaranteed them in Section 7 of the
Act, except to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment as authorized
by Section 8(a)(3) of the Act.
b. Take the following affirmative action , which is
necessary to effectuate the policies of the Act:
(1) Jointly and severally with Respondent Hunter
Outdoor Products, Inc., reimburse all present and former
employees at Hunter ' s plants in North Adams,
Massachusetts , for all dues and other moneys, if any, paid
by or withheld from them pursuant to the terms of the
union-security provision of the collective- bargaining
agreement executed on November 4, 1967, or pursuant to
any union-checkoff authorizations executed before the
date of compliance with this Order, together with interest
at the rate of 6 percent per annum.
(2) Post at its offices and meeting halls copies of the
attached notice marked "Appendix C."" Copies of said
notice , on forms provided by the Regional Director for
Region 1, shall after being duly signed by Joel Pave,
Respondent Union' s president, be posted by Respondent
Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
coi$spicuous places , where notices to members are
customarily posted . Reasonable' steps shall be taken by
Respondent Union to insure that said Notices are not
altered , defaced , or covered by any other materials.
(3) Post at the same places and under the same
conditions as set forth in (2) above , as they are forwarded
by the Regional Director , copies of Respondent Hunter's
notice marked "Appendix B."
(4) Mail signed copies of the attached notice marked
"Appendix C" to the Regional Director for posting at
Hunter's plants and for mailing by Hunter to employees
as provided herein.
(5) Notify the Regional Director for Region 1, in
writing , within 20 days of the date of this Decision, what
steps Respondent Union has taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not specifically
found herein.
"See fn . 36, supra
"See fn . 37, supra
APPENDIX A
ORDER OF JULY 16, 1968, AS CORRECTED"
ORDER DISAPPROVING PROPOSED
SETTLEMENT AND REOPENING RECORD
This consolidated complaint was heard at North
Adams, Massachusetts , on April 23 through 25, 1968.
Immediately after the record was opened , counsel for the
General Counsel and for Respondent Local 29, Retail,
Wholesale and Department Store Union, AFL-CIO
(RWD), submitted for the Trial Examiner 's approval a
proposed settlement of the complaint as directed against
said union . The Charging Party, International Ladies'
Garment Workers' Union, AFL-CIO (ILG), and
Respondent employer, Hunter Outdoor Products, Inc.
(Hunter ), objected to the proposed settlement and urged
the Trial Examiner not to approve it. Following
considerable discussion , both on the record and off the
record , the Trial Examiner reserved decision . Thereupon
counsel for RWD, after consulting his superior by
telephone , announced that RWD was withdrawing from
the hearing and would not participate further. Counsel left
the hearing (and the city) and did not return at any time
during the hearing.'
Briefly summarized , the complaint alleges that (1)
Hunter unlawfully interfered with its North Adams
employees in their free choice of a collective- bargaining
agent in violation of Section 8(a)(l), improperly gave
support and assistance to RWD in contravention of
Section 8(a)(2), and discriminated in favor of RWD and
against ILG in violation of Section 8(a)(3) of the Acts'
and (2) RWD unlawfully restrained and interfered with
the employees by coercing them to join RWD and causing
Hunter to discriminate among employees in violation of
Section 8(b)(1)(A) and 8(b)(2).
The major issues revolve around whether Hunter acted
improperly in recognizing RWD as the bargaining
representative of its North Adams production and
maintenance employees on October 27, 1967,' and whether
the Respondents acted improperly on November 4, by
executing a collective - bargaining agreement containing
union-security and dues-checkoff provisions.
1. INTERIM FINDINGS AND CONCLUSIONS
All issues , factual and legal , have been fully litigated
except the specific allegations against RWD (pars. 10, 14,
and 15 of the consolidated complaint ). The General
Counsel presented evidence in support of these allegations,
but, as heretofore set forth, RWD did not participate in
the hearing and thus presented no defense . Hunter
introduced into evidence union authorization cards
received by RWD but presented no other evidence bearing
on a defense of Local 29's conduct.
As a preliminary to the present interlocutory order, it is
essential that the Examiner announce certain findings and
conclusions already reached on the basis of careful
observation of the witnesses and full consideration of the
'Errata attached hereto. [Omitted from publication.)
'No brief, memorandum, or other communication has since been
received from RWD.
'National Labor Relations Act , as amended (61 Stat . 136, 73 Stat. 519,
29 U.S .C. Secs. 151, el seq. 1.
'Unless otherwise stated , all dates herein are in 1967.
HUNTER OUTDOOR PRODUCTS 463
entire record and the briefs and written statements
received since the hearing . Full analysis of the evidence
and reasons for the findings and conclusions here
announced (together with findings and conclusions on
issues not necessary for the present order) will be set forth
in the Trial Examiner's final Decision.
In addition to finding that the Board has jurisdiction,
the Examiner here states the following findings and
conclusions:
1. The arbitrator's award of October 27 is not binding
or conclusive as to RWD's representative status:
2. By September 29 RWD held authorization cards
executed by a majority of the employees in the
appropriate unit;
3. On or about September 29 or 30, RWD demanded
recognition and requested bargaining and Hunter rejected
the demand and request;
4. The ILG organizing campaign among Hunter's
North Adams employees commenced on October 1, and
Hunter first became aware of it on October 3 or 4;
5. Through October 3, Hunter did not unlawfully assist
or support RWD in contravention of Section 8(a)(2) of
the Act.
II. THE SETTLEMENT AGREEMENT
A. The Terms
The settlement agreement proposed by RWD and the
General Counsel provides that RWD will post at its
offices a notice saying that it will not represent or claim
to represent Hunter's North Adams employees unless it is
certified by the Board and will not seek to enforce the
collective bargaining agreement made with Hunter on
November 4, unless it is certified. So far as appears,
RWD has not filed a representation petition and has not
sought to intervene in the proceeding initiated by ILG's
filing a representation petition on November 21.
The notice to be posted pursuant to the proposed
settlement further states that RWD will "upon request . .
. jointly and severally with Hunter . . . reimburse any
employee" for dues checked off, such request to be made
either to the Board' s Regional Office or to RWD. The
notice also states that "upon approval of this agreement,
and subject to the request procedure . . . the Union will
pay one-half . . . of the aforesaid monies immediately,"
the remainder to be paid by the Union only when it is
informed by the Board's Regional Director that he has
been unable to secure payment from Hunter. The
proposed notice also expressly says that RWD will request
Hunter to discontinue withholding union dues and RWD
will not be liable for reimbursement of any dues that
Hunter might check off after approval of the settlement
agreement.
The agreement contains the following non-admission
clause:
By the execution of this Agreement the Union does not
admit that it violated Sections 8(b)(l)(A) or (2) or any
other Section of the National Labor Relations Act.
It further says:
Approval of this Agreement by the Regional
Director shall constitute withdrawal of the Complaint
and Notice of Hearing heretofore issued in this case.
It is not signed by the Regional Director , but, in
submitting the settlement to the Examiner , counsel for the
General Counsel said : "The agreement , I am authorized
to state, has been approved by the Regional Director."
However, under Section 101.9(d) of the Board's Rules and
Regulations, as amended, the withdrawal of the complaint
cannot become effective until approved by the Trial
Examiner, notwithstanding the Regional Director's
approval.
B. The Objections
At the hearing, counsel for ILG objected to the
unilateral ' settlement by the General Counsel and RWD
on the ground that the employees should not have the
burden of requesting reimbursement of dues previously
checked off. Intimately related to this objection by ILG is
the provision in the notice for "joint and several"
responsibility of RWD and Hunter, with initial payment
by RWD of only one-half the total withheld, the
remainder to be paid by RWD only if the Board's
Regional Director is unable to obtain payment from
Hunter. This second objectionable aspect of the
reimbursement provision was raised in a letter dated May
3, 1968, by ILG counsel to the Examiner, with copies
served on all parties. (Said letter is hereby incorporated
into the record as Charging Party's Exhibit 2.) It is the
Examiner's opinion that, if a settlement with RWD alone
were to be approved, the burden should be placed on the
Union to make full restitution, with the Union left to
secure reimbursement from Hunter, if any is due. In other
words, neither the employees nor the Board should have
to assume any initial affirmative burden in securing full
remedial action. Tender of all amounts withheld should be
made to the Board's Regional Office. Those employees
desiring to do so may, of course, refuse the tendered
payments, whereupon such funds will be returned to
RWD.
At the hearing the ILG also objected to the provision
of the proposed settlement which relieved RWD of any
responsibility if Hunter should withhold any dues after
RWD advised it to discontinue the checkoff. While this
matter may be of little practical consequence, the
Examiner believes that, since dues checkoff is essentially a
joint activity of Hunter and RWD, the Union should not
be given a blanket release of liability in the event of future
improper withholding by Hunter s
In his letter of May 3, 1968, ILG counsel also states:
The proposed informal settlement is inconsistent with
the recommendation of the National Labor Relations
Board Field Manual, Sec. 10164.1, that formal
settlement agreements providing for Board Order be
employed after issuance of a complaint.
The Field Manual, though not having the effect of law, is,
of course, persuasive. In any event, the Board's official
Statement of Procedure is very specific on this point.
Section 101.9(b), as amended, says:
After the issuance of a complaint, the agency favors
a formal settlement agreement , which is subject to the
approval of the Board in Washington, D. C. In such an
agreement , the parties agree to issue an order requiring
"'Unilateral" refers to the absence of agreement by the Charging Party.
'Toward the end of the hearing , Hunter stated its willingness to make
reimbursement of its proper share of dues previously withheld and made a
commitment not to withhold dues in the future "pending determination or
termination" of the present proceeding . While the Examiner has no doubt
that Hunter would abide by this commitment, no such agreement was
made since the proposed settlement with RWD was not approved and,
further, the General Counsel declined to entertain any offer by Hunter of a
partial "settlement" of the allegations against it
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent to take action appropriate to the terms
of the settlement. Ordinarily the formal settlement
agreement also contains the respondent's consent to the
Board's application for entry of a decree by the
appropriate circuit court of appeals enforcing the
Board 's order.
Neither the General Counsel nor RWD has advanced any
reason or justification in the present case for departing
from the Board's announced policy of favoring formal
settlements after complaints have been issued. Indeed, as
ILG also suggests, the fact that the General Counsel has
brought an injunction action under Section 10 (I) against
both Respondents would seem to reflect a view of the
gravity of their alleged misconduct calling for an
enforceable order.'
In its letter of May 3, 1968, and in a legal
memorandum filed thereafter, the ILG observes that the
posting called for by the settlement is to be made only in
RWD's office. Since that office is located in New York
and the employees here involved are in North Adams,
Massachusetts, it is difficult to understand how the
posting could have any salutary effect as a practical
matter. Certainly such distant posting would not serve to
inform the employees of their right to reimbursement of
dues withheld or, perhaps more important, of RWD's
commitment not to represent the employees or seek to
enforce the collective-bargaining agreement. The provision
for posting on Hunter 's premises , "the employer willing,"
is of little help since Hunter apparently would not be
"willing." In its brief, Hunter says that if it "was allowed
to also post a notice in its New York Office it too may
well have been willing to sign a comparable agreement."
In view of Hunter's clearly expressed desire to retain the
agreement as a future contract bar, it is not reasonable to
assume that it would voluntarily publicize RWD's
renunciation.
The record contains evidence that RWD's president
informed Hunter's North Adams employees, among other
things, that, whether they liked it or not, they were
represented by RWD and were covered by the collective
bargaining agreement entered into by Hunter and RWD
at the Company's two plants in Long Island City, New
York. Although an arbitrator later rejected RWD's
"accretion" contention, he decided, on the basis of a card
check, that RWD was the authorized collective-bargaining
agent of the North Adams employees. It is reasonable to
assume that the employees were informed of this decision,
on which Hunter seeks to rely as a defense in the present
case. There is no basis for assuming that the employees
would conclude on their own initiative that the arbitrator's
award was not binding. Thus, it is especially important
that the employees be carefully and fully advised of any
disclaimer or renunciation by RWD to avoid a possibly
widespread misbelief among them that they are enjoying
the protection of union representation and are covered by
a 3-year collective- bargain ing agreement.'
'On June 18. 1968 , after the present hearing , District Judge Julian
granted a temporary injunction under Sec. 10 (j) against Hunter and RWD.
Kowa( v. Hunter Outdoor Products , Inc., 68 LRRM 2529 (D.C. Mass.)
That decision enjoins conduct of the type alleged in the present
consolidated complaint "pending the final disposition of the matters herein
involved pending before the Board."
'T'his need is accentuated by Hunter 's position . At the hearing Hunter's
counsel made it clear that the Company is entirely "willing" to abide by
RWD's present renunciation of bargaining status and of the
collective- bargain ing agreement , provided Hunter can continue to litigate
in an attempt to retain the agreement as a contract bar should the ILG
press its claim of representative status.
In its brief, Hunter says:
. . . To approve withdrawal by one party to the
Agreement prior to conclusion of litigation and while
the other party continues to insist upon the validity of
the Agreement, is to make a shambles out of the
collective bargaining agreement ...
The situation, however, is not unique or unprecedented.
If a complaint had been filed against either Hunter or
RWD alone, and the General Counsel established the
allegations of the complaint, the contract would be set
aside. Cf. National Licorice Co. v. N.L.R.B., 309 U.S.
350; Hughes & Hatcher, Inc. v. N.L.R.B., 393 F 2d 557
(C.A. 6). The Board has recently recognized the authority
of the Regional Director to settle a case against one of the
contracting parties while proceeding to litigation against
the other. International Assn. of Machinists, etc., Local 9,
171 NLRB No. 35, fn. 3. Nonetheless, the situation
created by such action is fraught with problems. If the
proposed settlement were to be accepted, RWD would be
legally bound not to represent the employees and not to
enforce the contract. The settlement would be equivalent
to the union's disclaimer of representative status and
abandonment of its contract, with the result that the
agreement would not be a bar to another union's
representation petition. On the other hand, if the
employer's right to defend is not to be a mere ritualistic
exercise devoid of substance, presumably the litigation
could result in a determination that the union represented
an uncoerced majority and accordingly that the
recognition was proper and the contract is valid and
effective. Thus, the Union would be prohibited by the
settlement from representing the employees, yet
potentially guilty of violating Section 8(b)(3) if it refused
to bargain with the employer.'
The problems here discussed lead the Examiner to
believe that the purposes of the Act would not be
effectuated by approval of a separate settlement with
RWD without the joinder or concurrence of Hunter.'
III. RWD S RIGHT TO DEFEND
RWD withdrew from the hearing even though it was
clearly advised that its proposed settlement had not been
approved and, consequently, that the complaint was still
outstanding and it was still a respondent . Since the union
thus had a full opportunity to defend , it might be argued
that the Examiner would be warranted in proceeding to
decide the allegations of the complaint against it on the
basis of the evidence now in the record , the General
Counsel having presented evidence as to those allegations.
On the other hand , it cannot be said that the union acted
unreasonably in withdrawing from the hearing while its
offer of settlement was still outstanding.
The spirit, if not the literal language, of the
Administrative Procedure Act indicates that RWD should
now be provided an opportunity to defend . Section 4(c) of
that Act (5 U.S.C. Sec. 554(c)) reads:
'As a corollary , the employer would have a "valid" collective-bargaining
agreement which presumably would preclude the employees ' choosing a
representative other than the RWD , which , under the settlement , would be
committed not to represent them.
'The Examiner is mindful of the fact that similar problems were
potentially present in I.A.M., Local 9, supra, 171 NLRB No 35, in which
the Regional Director approved a separate settlement with the employer
setting aside a provision in a collective-bargaining agreement which,
contrary to the Board , the courts have generally held to be valid.
HUNTER OUTDOOR PRODUCTS 465
The agency shall give all interested parties
opportunity for -
(1) the submission and consideration of facts,
arguments, offers of settlement, or proposals of
adjustment when time, the nature of the proceeding and
the public interest permit; and
(2) to the extent that the parties are unable so to
determine a controversy by consent, hearing and
decision on notice ... .
At the time the present hearing commenced, RWD
certainly had no reason to believe that the matter would
not be amicable adjusted by consent, since agreement had
been reached with the General Counsel and approved by
the Regional Director. Additionally, since the General
Counsel referred to the proposal as a "100% settlement,"
RWD might reasonably have anticipated that failure to
defend would not subject it to any remedial action more
onerous than that to which it had agreed.
The Examiner thus concludes that, with the proposed
settlement now rejected, RWD should be permitted to
present a defense if it so desires.
As part of its right to defend, RWD will be permitted
to subpoena for cross-examination witnesses who have
previously testified on behalf of the General Counsel
concerning the conduct of RWD representatives.
IV. HUNTER S MOTIONS
Shortly after RWD counsel withdrew from the hearing,
the General Counsel adduced evidence concerning conduct
of RWD representatives. Such evidence was admitted over
the objection of Hunter's counsel, the Examiner stating
that counsel could later move to strike the evidence. On
several occasions throughout the hearing similar evidence
was received under the same ruling. In its brief, Hunter
moves that all evidence against RWD involving conduct
or transactions to which Hunter was not privy be
expunged from the record.
This motion must be denied under Bernhard-Altmann,10
which requires that Hunter be found derivatively guilty of
violating Section 8(a)(2) of the Act if, as the General
Counsel contends, RWD coerced employees into joining
the Union or secured authorization cards by other
improper means. Whether Hunter was a participant in or
aware of any such improper conduct by RWD is
irrelevant. Accordingly, Hunter's motion to strike
evidence will be denied.
In its brief Hunter next requests -
that the Settlement Agreement not be approved, and
that the case be reopened in order to allow [RWD] to
present that portion of the defense that was unavailable
to [Hunter] during the hearing.
Hunter argued at the hearing (and repeats in its brief) that
it was unprepared to present a defense of RWD's conduct
because RWD and Hunter had "agreed to divide the
preparation of the defense"" and was advised only the day
before the hearing began that RWD would not participate.
Since a finding that RWD did not represent an
uncoerced majority of Hunter's North Adams employees
would deprive Hunter of its collective-bargaining
agreement, irrespective of its good faith or scienter, the
Examiner believes that Hunter's request should be
granted, even if RWD itself were not entitled to an
opportunity to be heard at this time.
Hunter's final motion appears in its brief as follows:
Alternatively, the Trial Examiner should grant
[Hunter's] motion and reopen this hearing in order to
allow [Hunter] to defend against the alleged violations
of Section 8(d) of the Act.
It concludes its argument on this point as follows-
. . . Such request is made only if the statements and
acts attributable to alleged representatives of [RWD]
are not physically expunged from this record, and only
if [RWD] is not found to be the uncoerced majority
representative at the material times referred to in the
Consolidated Complaint.
Since the Examiner has denied Hunter's motion to strike
the evidence against RWD and is not prepared to find on
the present record that RWD represented an uncoerced
majority of Hunter's North Adams employees, Hunter's
final request must be considered.
What Hunter apparently seeks is an opportunity to
defend RWD whether that union desires to defend itself or
not. To grant such a request could conceivably lead to
most anomalous results. For example, if RWD chose not
to defend, but rather to admit the allegations of the
complaint against it or to stand on the record heretofore
made, an order would appropriately be entered prohibiting
RWD from representing the employees and setting aside
the collective-bargaining agreement made by it on behalf
of those employees.': It would be tilting at windmills to
permit Hunter to try to establish RWD's innocence since
it would avail Hunter nothing as a finding against either
of the Respondents requires abolition of the bilateral
relationship between them. The ultimate consideration is
the interests of the employees, the protection of whose
rights is the raison d'etre of the Act. It would do them a
disservice to permit an employer to attempt, in effect, to
establish that the employees are represented by a union
which is not willing or able to establish or defend its own
representative status. The Supreme Court's decision in
Bernhard-Altmann teaches that, in a situation like the
present, the burden of any misconduct must be borne by
the contracting parties and cannot be transferred to the
employees.
Accordingly, Hunter's request that it be permitted to
defend against the allegations that RWD violated Section
8(b) of the Act will be denied. Hunter will, of course, be
permitted to appear at any reopened hearing. The nature
and extent of its participation will be determined in the
light of specific situations as they may arise.
V. THE LIMITED REOPENING
A. The reopened hearing is to be strictly limited to the
presentation of a defense by RWD ( including
cross-examination of witnesses who have heretofore
testified against the union ) and such rebuttal evidence as
the General Counsel and the Charging Party may present.
No evidence will be received on any other issues.
As to one issue , however, the Examiner invites such
argument as the parties may desire to present. As stated
at the outset of this order, the Examiner finds that by the
" I.L.G,W U. (Bernhard-Altmann Texas Corp.) v. N.L.R. B., 366 U.S.
731.
"Hunter and RWD apparently defended jointly in the District Court
proceeding under Sec . 10(i).
"The evidence heretofore presented by the General Counsel is sufficient
to establish prima facie that RWD did not represent an uncoerced
majority.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
end of September RWD held authorization cards executed
by a majority of the unit employees . However, the
evidence establishes that Hunter rejected the union's
demand for recognition and request for bargaining at that
time and did not grant recognition until October 27, the
day the arbitrator made his award.
Hunter argues, in effect , that the propriety of its
recognizing and contracting with RWD should be judged
solely in the light of the facts up to the date of the union's
demand for recognition . The other parties have not
addressed themselves to this issue . They are, therefore,
hereby invited to file memoranda (or be prepared to
present oral statements at the resumed hearing) on the
questions : ( 1) whether the propriety of the recognition
should be determined as of the date of the union 's demand
or as of the date recognition was extended ; and (2)
whether the ultimate decision herein would be affected by
the date found to be appropriate.
B. Section 101.9(d) of the Board ' s Statement of
Procedure , as amended , reads in part:
If the trial examiner decides to accept or reject the
proposed settlement , any party aggrieved by such ruling
may ask for leave to appeal to the Board as provided in
Section 102.26.
The Examiner believes that the General Counsel and
RWD, being parties aggrieved by the rejection of the
proposed settlement , should be granted a reasonable time
within which to apply for leave to appeal to the Board.
Accordingly , the Examiner will not at this time set a date
for the resumption of hearing pursuant to the limited
reopening herein provided . Instead , the Examiner will
allow 10 days from the date of this order within which
said parties may apply for such leave. Unless within the
10-day period so provided the Examiner receives either a
notice by the General Counsel and/or RWD that such an
application has been filed with the Board or a waiver by
RWD of further hearing , she will proceed to issue an
order setting the case for further hearing. If either the
General Counsel or RWD applies for leave to appeal to
the Board , the Examiner will defer further action until the
Board has acted upon the application (or applications) so
filed.
Accordingly, it is hereby ordered that:
1. The settlement agreement proposed by the General
Counsel and Respondent Local No. 29, RWDSU,
AFL-CIO, is rejected;
2. The motion of Respondent Hunter Outdoor
Products , Inc., to strike and expunge certain evidence
from the record is denied;
3. Respondent Hunter ' s motion that the record be
reopened to permit Respondent Local 29, RWDSU,
AFL-CIO, to defend is granted , the date and place of any
further hearing to be prescribed by further order of the
Trial Examiner;
4. Respondent Hunter ' s motion that it be permitted "to
defend against the alleged violations of Section 8(b) of the
Act" is denied.
APPENDIX B
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial in which all parties had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has ordered
us to post this Notice and to keep the promises we make
herein.
The National Labor Relations Act gives all employees
these rights:
To organize themselves;
To form , join or help unions;
To bargain as a group through a representative they
choose;
To act together for collective bargaining or other
mutual aid or protection;
To refuse to do any or all of these things;
WE WILL NOT do anything that interferes with these
rights.
You are free to join the International Ladies'
Garment Workers ' Union , AFL-CIO, or any other
union , and, by majority choice , to select any union to
represent you in bargaining with us.
WE WILL NOT threaten to fire you , or to hold back
your pay raises, paid holidays , or any other benefits, or
to close our North Adams , Massachusetts , plants in
order to make you join Local 29, Retail Wholesale and
Department Store Union , AFL-CIO , or to keep you
from joining International Ladies ' Garment Workers'
Union , AFL-CIO, or any other union.
WE WILL NOT question you about any union activity
or about who belongs to or supports the ILGWU or
any other union.
WE WILL NOT spy on the union activities of any
employees.
WE WILL NOT tell you not to accept leaflets given out
by the ILGWU or any other union.
WE WILL NOT interfere with the appointment or
election of shop stewards or other officers or agents of
Local 29 , RWDSU, or otherwise interfere with the
internal affairs of that or any other union.
WE WILL NOT assault any union agents or organizers
or otherwise physically impede their peaceful and lawful
distribution of campaign leaflets or other union
literature.
WE WILL NOT permit Local 29, RWDSU, or any
other union to violate any lawful rule we make against
solicitation or distribution of material in the plant
during working time.
WE WILL NOT give any further effect to our contract
of November 4, 1967, with Local 29, RWDSU,
covering our North Adams employees; but this does not
mean that we will necessarily change wage rates,
holiday pay provisions , or any other terms and
conditions of employment that may now be in effect.
Together with Local 29 , RWDSU, WE WILL give
you back all the money we took out of your pay for
said union , with 6 percent interest on that money.
WE WILL stop recognizing Local 29, RWDSU, as
your collective - bargaining representative and dealing
with its shop stewards and other agents as your
representative, and WE WILL NOT again recognize Local
29, RWDSU , unless and until it is certified as your
representative as a result of a National Labor Relations
Board election.
HUNTER OUTDOOR
PRODUCTS, INC.
(Employer)
Dated By Joseph Martin , Vice President
(Representative ) (Title)
HUNTER OUTDOOR PRODUCTS 467
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge & New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
223-3353.
APPENDIX C
NOTICE TO ALL MEMBERS OF LOCAL 29, RETAIL,
WHOLESALE AND DEPARTMENT STORE UNION,
AFL-CIO
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act , as amended , we hereby notify our members
that:
After a trial in which all parties had the opportunity to
present their evidence , the National Labor Relations
Board has found that we violated the law and has ordered
us to post this Notice and to keep the promises we make
herein.
The National Labor Relations Act gives all employees
these rights:
To organize themselves;
To form , join or help unions;
To bargain as a group through a representative
they choose;
To act together for collective bargaining or other
mutual aid or protection;
To refuse to do any or all of these things;
WE WILL NOT do anything that interferes with these
rights.
You are free to join the International Ladies'
Garment Workers ' Union , AFL-CIO , or any other
union , and, by majority choice , to select any union to
represent you in bargaining with your employer.
WE WILL NOT give any further effect to our contract
of November 4, 1967, with Hunter Outdoor Products,
Inc., covering the employees at their North Adams,
Massachusetts , plants.
WE WILL NOT threaten to have Hunter ' s North
Adams employees fired , or to have their pay raises,
holiday pay or other benefits held back , or to cause
Hunter to close its North Adams plants in order to
make you join Local 29 , Retail Wholesale and
Department Store Union , AFL-CIO.
WE WILL NOT act or claim to act as the
collective -bargaining representative of Hunter ' s North
Adams employees unless and until we have been
certified as their representative as a result of a National
Labor Relations Board election.
Together with Hunter Outdoor Products , Inc., WE
WILL give back to Hunter 's North Adams employees all
the money that was taken out of their pay for Local 29,
RWDSU , dues, plus 6 percent interest on that money.
LOCAL 29, RETAIL,
WHOLESALE AND
DEPARTMENT STORE
UNION , AFL-CIO
(Labor Organization)
Dated By Joel Pave, President
(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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge & New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
223-3353.