Milgo Industrial, Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1973

203 N.L.R.B. 1196 (N.L.R.B. 1973)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milgo Industrial , Inc.' and Shopmen's Local Union No.
455, International Association of Bridge, Structural
and Ornamental iron workers, AFL-CIO. Cases
29-CA-2575, 29-CA-2769, and 29-RC-1834
June 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On August 29, 1972, Administrative Law Judge 2
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and a letter dated March 5,
1973.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, brief, and
the above letter submitted by Respondent,' and has
decided to affirm the rulings, findings ,4 and conclu-
sions of the Administrative Law Judge to the extent
indicated below.
A. Preliminary Statement
As appears from the Decision of the Administrative
Law Judge, the Union began an organizational cam-
paign among Respondent 's previously unrepresented
employees in the latter part of September 1971; it
made a telegraphic demand for recognition on or
about October 1, 1971; it filed a petition for a Board
election following Respondent 's refusal to grant its
recognition demand ; it filed an unfair labor practice
charge on October 19, 1971; and it lost the Board
election conducted on February 4, 1972, by a vote of
12 to 3 and then filed objections to the election. On
the basis of the amended complaint , the issues litigat-
ed at the hearing were (1) whether Respondent en-
gaged in conduct violative of Section 8(a)(1) and (3)
i The name of the Respondent appears as amended at the hearing.
2 The tide of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
3 The Executive Secretary thereafter replied indicating that we have con-
sidered the Board's decision mentioned therein, Rex Disposables, Div of DH!
Industries, Inc, 201 NLRB No. 108. It is clear that the facts here are signifi-
cantly distinguishable from those in that case.
4 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings.
of the Act after the union activity began; (2) if so, did
some or all of the unlawful conduct occur between the
date the petition was filed and the date the election
was conducted and thereby furnish support for an
order sustaining the objections and setting the elec-
tion aside; and (3) assuming an affirmative answer to
(2), whether the unlawful conduct was sufficient to
support findings that Respondent's preelection refus-
al to recognize and bargain with the Union was viola-
tive of Section 8(a)(5) of the Act and/or whether
under the standards set out in the Supreme Court's
decision in Gissel 5 a bargaining order was warranted
in any event as remedial action for the unfair labor
practices found.
The Administrative Law Judge found that Respon-
dent engaged in conduct violative of Section 8(a)(1) of
the Act, as alleged, which conduct also interfered with
the free choice of the employees in the election. He
further found that Respondent's refusal to honor the
Union's recognition demand was violative of Section
8(a)(5) and (1) of the Act. We agree, for the most part,
with these ultimate violation findings 6 We deem it
necessary, however, to explicate these findings and
their base in some detail for the reason, among others,
that the Administrative Law Judge's Decision draws
no clear line between conduct committed by Respon-
dent before the representation petition was filed and
that subsequently committed;' and it fails also to ade-
quately rationalize whether that conduct provided the
appropriate warrant for the alleged 8(a)(5) violation
and/or the bargaining order sought by the General
Counsel under the standards set out in Gissel, supra.
5 N.LR B v Gissel Packing Co., Inc, 395 U S. 575, 619 (1969).
6 Contrary to the Administrative Law Judge's decision , the complaint, as
amended , did not allege that Respondent granted its employees wages and
other benefits , and no evidence was adduced which could form the basis of
any such finding . We do not therefore adopt it.
The Administrative Law Judge also found that the Respondent did not
engage in any violation of Sec. 8(a)(3) and ( 1), as alleged , and therefore
dismissed that part of the complaint. No exceptions were filed to this dismiss-
al and we therefore adopt it pro forma
' Although all the alleged unfair labor practices occurred before the elec-
tion was held, only those committed on or after the day the petition was filed
may properly be considered for purposes of passing on the merits of the
election objections. See The Ideal Electric and Manufacturing Company, 134
NLRB 1275, 1278; Goodyear Tire and Rubber Company, 138 NLRB 453,455;
West Texas Equipment Company, 142 NLRB 1358, 1359-60.
Because of the lapse of time between the date of the commencement of
organizational activity and the hearing in this case , credited witnesses could
not always pinpoint , with any degree of accuracy, the precise dates on which
certain events to which they testified occurred except by relating them to the
time of union meetings or the visits of the union president to the plant. In
instances where there is a substantial question as to whether a particular
event occurred before or after the filing of the petition (on October 5), we
have resolved that question on the basis of testimony of Respondent's wit-
nesses describing the same events , where such exists, or on the basis of
inherent probabilities Also, in the factual statement set out below, we have
corrected certain inadvertent errors of the Administrative Law Judge' s deci-
sion about the dates of certain events and the participants therein by using
the correct dates.
203 NLRB No. 152
MILGO INDUSTRIAL, INC.
B. The Conduct by Respondent 's Officials Preceding
the Filing of the Union's Representation Petition
The credited evidence establishes that the initial
contact with the Union was made by employees Riv-
era and Stabile on or about September 21, 1971. These
two employees thereafter solicited the other 17 pro-
duction and maintenance employees Respondent em-
ployed at that time to attend a union meeting held on
September 30, 1971, and to sign cards. They conduct-
ed part of this solicitation at the plant.
Within a short period of time after the above union
meeting was held, Leadman Zeichner approached
Stabile near the end of the workday 8 and told him the
"boss" wanted to see him at the office of Henry Ka-
plan, a shop draftsman or architectual designer.
When Stabile went to that office, he found he had
been summoned to attend a meeting . Those present
were Mac Gitlin and his two sons , Bruce and Allan, 9
Stabile, employee Kaplan, and Leadmen Zeichner,
Lospinuso, and Solva.10 Mac Gitlin first told the as-
sembled group that the Company had received a com-
munication from the Union. He then stated that if the
Union came in the Company would have to pay high-
er wages to unskilled employees; that consequently
current employees could not receive as large pay ad-
justments as they would have received without the
Union; and he warned that, if the Union came in, he
could not shift employees around and there might
have to be a layoff. Gitlin also asked those present to
(a) determine from the employees who the ones were
who had brought in the Union, what support the
Union had, and what complaints the employees had;
and (b) try to talk the employees "out" of the Union.
On Monday morning, October 4, Union President
Colavito came to the plant and asked Mac Gitlin to
recognize the Union. Gitlin agreed to do so if the
Union showed him the cards proving the Union's ma-
jority claim. Immediately thereafter, Mac Gitlin ap-
proached employee Klein at the latter's work station
and asked him if he had signed a card and had heard
s Although we find that the events related in this paragraph occurred
before the day that the petition was filed , we are unable to determine whether
they occurred on Friday , October 1 , 1971, the date the Union made a tele-
graphic demand for recognition, or on the next workday, Monday, October
4, 1971, when Union Agent Colavito appeared at the plant to make a personal
recognition demand . Although Stabile testified he thought the meeting oc-
curred a day or two after Colavito's visit to the plant , it is clear from other
of his testimony that he wasn 't certain of this, but that he definitely knew the
meeting referred to took place before Lospinuso conducted any of the three
meetings we describe below . The Lospinuso meeting dates are placed, in
Lospinuso 's testimony, as occurring on Tuesday, October 5 , and Wednesday,
October 6 . We therefore believe that Stabile , a witness who had some difficul-
ty with the English language , confused Colavito's visit to the plant with
Colavito's presence at the union meeting of September 30
9 Respondent admitted that Allan Gitlin , as well as Mac and Bruce Gitlin,
was a supervisor within the meaning of the Act.
10 As found by the Administrative Law Judge, the three leadmen were not
supervisors within the meaning of the Act.
1197
anything about the union activity in the shop.
That afternoon Colavito revisited the plant to ex-
hibit proof of union majority, but, when he sought to
see Mac Gitlin, Bruce Gitlin advised Colavito that the
Company was not interested in seeing the cards be-
cause it had decided not to recognize the Union.
Sometime during the day of Colavito's visit, supra,
Mac Gitlin asked Klein at his work station whether
Klein had heard anything about union activity in the
shop and whether Klein had signed a card.
We find, from the foregoing, that Respondent vio-
lated Section 8(a)(1) of the Act by interrogating em-
ployee Klein on October 4; by making implied threats
of benefit loss and layoff in the event of successful
union organization to the employees whom it sum-
moned to the meeting at its offices on October 1 or 4;
and by instructing the latter employees to engage in
surveillance and polling of their fellow workers and to
take other undefined measures to obtain their fellow
employees' rejection of the Union.
C. The Occurrences on and After the Day
the Petition Was Filed
1. The Lospinuso meetings of October 5 and 6,
1971"
The Union filed its representation petition with the
Board shortly before noon on Tuesday, October 5,
1971.12 That same day there took place the first of a
series of three employee meetings at the plant which
Leadman Lospinuso chaired and which all nonsuper-
visory employees at the shop attended. The employees
assembled at the backroom of the plant after one of
their break periods and held all or part of the meeting
during the scheduled work period.13 As reported by
the Adminsitrative Law Judge, Lospinuso told the
employees at that meeting that "the boss" had in-
formed him of union claims of 90-percent representa-
tion ; that he didn't believe the Union was telling the
truth and wanted the employees who were for the
11 As noted , supra, Lospinuso's testimony fixes the meeting dates as being
October 5 and 6 and we accept his testimony for that purpose . The employees
who testified for General Counsel on the subject agreed that all three meet-
ings occurred after Colavito 's visits to the plant mentioned supra, but no two
of the three agreed on the precise dates.
12 The time officially stamped on the petition as the filing date time is 11:50
a.m., October 5.
13 Stabile , one of the witnesses credited by the Administrative Law Judge,
testified that the meeting occurred during the morning work hours after the
9:30 a.m. coffeebreak . However, Rivera, another witness credited by the
Administrative Law Judge , testified that the meeting occurred after the lunch
break . Both witnesses agreed in their testimony that this meeting , as well as
the two others mentioned below, went on during the normal work hours of
the employees
As appears from the credited testimony, the fact that the employees had
so assembled was observed by Supervisor Allan Gitlin, for, according to
employee Stabile , Gitlin came to the room to shut the door on each occasion
as each of the meetings was about to begin.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union to so indicate by show of hands. When the
employees refused to vote in this manner , Lospinuso
solicited their grievances and indicated that he would
take up these complaints with the boss . Some of the
employees , in response, voiced their complaints about
various conditions , including unclean toilet facilities,
lack of heat, no posted list of holidays, low wage rates,
lack of paid health benefits , and broken down ma-
chines . Lospinuso wrote these down and said he was
going to present them to the boss.
Lospinuso held the two additional meetings of the
series of three with the employees on the next day-
one after the lunch break time and the other the af-
ternoon coffeebreak . As with the October 5 meeting,
both these October 6 meetings were attended by all
the Respondent 's production and maintenance em-
ployees.
At the following day's lunch meeting , Lospinuso
opened the meeting by announcing that he had spo-
ken to Bruce Gitlin and Bruce had agreed to post the
list of holidays , to clean the bathroom, to install a
better heater, and to pay health insurance for all em-
ployees. Later, Lospinuso said that the boss had
agreed to give certain individuals wage increases and
he would discuss the amount of the increase with
individual employees . He added that the granting of
all the increased wages and benefits he had described
would be contingent on the employees' voting against
the Union at another meeting . After the meeting Los-
pinuso told Rivera he could get a 25-cent-per-hour
increase , and he told Stabile he would get a 50-cent-
per-hour increase "if we get rid of the union."
At the next meeting (held that same afternoon) Los-
pinuso prepared a petition stating "We the employees
of Milgo do not want to be represented by Local 455."
He, Solva , and Zeichner then signed the petition and
Lospinuso asked the other men to sign . They refused.
Solva then picked up the petition , went to the compa-
ny officers , and reported to the three Gitlins "they
turned us down ." No increase in wages or benefits
was, in fact, granted and no corrective measures were
taken with respect to other matters complained of,
except in one respect . There appeared on
Respondent's bulletin board within a day or two after
Lospinuso's meetings a list of the established compa-
ny holidays.
The Administrative Law Judge' s findings that Re-
spondent conducted an unlawful poll of its employ-
ees, unlawfully interrogated some of them with
respect to their union sympathies , and made implied
promises of benefit are based , in part, on Lospinuso's
conduct at the above meetings . The Administrative
Law Judge concluded that, although Lospinuso was
not a supervisor , his conduct was attributable to the
Respondent under agency principles . We agree.
As noted supra, the Gitlins authorized Lospinuso
and other employees, whom they summoned to the
meeting of October 1 or 4, to find out who had
brought the Union in, what employee support the
Union had, and what complaints the employees had.
Further, they instructed Lospinuso and others to try
to talk the employees out of the Union, and put no
limitation on the means Lospinuso should pursue to
accomplish this end. Lospinuso's conduct at the three
meetings of the employees he called immediately after
the Gitlins' meeting, supra, was clearly consistent with
the Gitlins' instructions; and both his words and his
actions on the aforementioned three occasions made
it plain to all he spoke to that he was acting in the
interest of management and with its blessings.
It may well be, as Respondent claims, that Respon-
dent was not in fact aware of each and every state-
ment or representation which Lospinuso made in
carrying out Respondent's generalized instructions.
But knowledge of an agent's activities which fall with-
in the scope of the authority granted him by the prin-
cipal is not a necessary element to a determination to
the principal's responsibility for the agent's acts. 14 In
this case, however, evidence that Respondent did ob-
tain knowledge of some, if not all, of Lospinuso's
antiunion conduct is not lacking . The meetings were
conducted during working hours, and they were at-
tended by all 17 of the Respondent's production and
maintenance employees . The fact that such meetings
were in progress was known to Allan Gitlin, the son
of Respondent's president and an admitted supervi-
sor. The grievances elicited from employees by Lospi-
nuso, as well as the antiunion petition he later
prepared but which only he and the other leadmen
signed , were given to management officials immedi-
ately after the events. Finally, there is evidence that
shortly after Lospinuso submitted the list of com-
plaints, one of which went to the lack of employee
information about paid holidays, there was posted on
the plant bulletin board, for the first time, a written
list of the established paid holidays.
We conclude, accordingly, that Respondent was
liable for Lospinuso's conduct 15 and that therefore
Respondent violated Section 8(a)(1) by interrogating
its employees about their union sympathies on Octo-
ber 5; and by then soliciting their grievances about
working conditions in a context which could not but
carry the implication that the employees did not have
to go to a union to obtain a satisfactory resolution of
14 N L R B v Birmingham Publishing Company, 262 F 2d 2, 8 (C.A 5,
1958), enfg in pertinent part 118 NLRB 1380, 1381-82 (Johnson).
15 Cf Goodman Lumber Company, 166 NLRB 304, 305; Brown Specialty
Company, 174 NLRB 519, enfd . 436 F.2d 372 (C A. 7, 1971 ); Marie Phillips,
Inc, 178 NLRB 340, 348-349 (Reed), enfd sub nom Local 153, ILGWUv.
N L R B , 443 F 2d 667 (C A D.C, 1970); J A Conley Company, 181 NLRB
123
MILGO INDUSTRIAL, INC.
their complaints by soliciting signatures to a no-union
petition; and by promising benefits if the union activi-
ties were halted.
As indicated above, the record shows, according to
the credited testimony of Stabile, that the Gitlins at
the October 1 or 4 meeting told a select few employ-
ees, including leadman Lospinuso, to spy on the other
employees, inform on the union leaders, find out
about employee grievances, and get the employees to
be "good boys" by giving up the Union. While our
dissenting colleague is willing to accept the truth of
this testimony, he suggests that it is not entitled to
complete credence because of Stabile's difficulty with
the English language, his poor memory, and the "sug-
gestive questioning" by the General Counsel. We find
no such imperfection in the testimony of Stabile. Nor
are we prepared to concede that good grammar is the
hallmark of truth.
Indeed, the subsequent conduct of Lospinuso con-
firms our reliance upon Stabile's veracity even if he
testified in fumbling and uncertain words. As previ-
ously set forth, immediately after the meeting with the
Gitlins, Lospinuso conducted no less than three meet-
ings with all 17 rank-and-file employees on working
time with the knowledge of the Gitlins, and Respondent
does not claim that there was any loss of pay for the
time spent in such meetings . Lospinuso there attempt-
ed to do precisely what Stabile testified the Gitlins
had asked him to do, persuade the employees to vote
against the Union, and in making this effort he repre-
sented to the employees that he was promising them
benefits the Gitlins had indicated they were willing to
grant. That this representation was the fact is indi-
cated by the Respondent's following up with one of
the very things Lospinuso indicated it would do-
posting a list of holidays. And following Lospinuso's
unsuccessful effort to secure signatures to a petition
rejecting the Union, the petition was returned to the
company officers with the report that "they turned us
down."
In these circumstances, we are unable to agree with
our dissenting colleague that there is insufficient evi-
dentiary base for concluding that Respondent was
chargeable with Lospinuso's conduct or that the Git-
lins did not say "anything" or subsequently do any-
thing which can be "properly construed" as
authorizing Lospinuso to act as their agent.
2. The conduct by Respondent's officials
About a week later (on October 12, the day of
Klein's dismissal) Bruce Gitlin approached employee
Singh at the latter's work station and said, "this Union
business is very bad, I've spent a lot of money on
lawyers and this and that and all that money could go
1199
in your pocket." Later that same day, Gitlin ap-
proached employees Rivera, Singh, Hernandez, and
Klein, while the latter were talking together, and start-
ed speaking to them about the Union. The men said,
"We want money "; Gitlin replied, "You can
get money but you will have to get this union out of
here otherwise I cannot do nothing [sic] for you." Still
later that same day, Gitlin asked Rivera, "What do
you think are you going to vote for the union, or
what?" Rivera replied "he didn't know."
About 3 days later, on October 15, Zeichner ap-
proached Stabile at his work station and stated Bruce
Gitlin wanted to speak to him alone in a diner near
the plant. Stabile went to the diner and met Gitlin.
Gitlin then told Stabile that the men didn't seem to
want to listen to the Company; that the union matters
were getting "ridiculous," and that if the Union got in
he might have to close down the shop, sell it out, or
move it to a new location. Some 4 days later, about
October 19, while sitting near Zeichner in the ship,
Mac Gitlin said in a loud voice that, if the Union
continued, he was going to close the shop and get out.
Rivera was standing nearby at the time and overheard
the statement.16 In December, when Respondent gave
employees Christmas bonus checks in varying
amounts, it gave Rivera a check in the amount of $25.
Rivera returned the check to Mac Gitlin saying he felt
he deserved to get at least as much as other employees
whose checks were larger. Bruce Gitlin later told Riv-
era that the reason that he had not gotten a larger
Christmas bonus was because Rivera was 100 percent
for the Union and had also mentioned that he was
likely to quit. On February 3, 1972, the day before the
scheduled election, Bruce Gitlin again approached
Rivera, urged him not to quit, and said that if Rivera
voted against the Union he would prosper with the
Company and the employees would benefit.
We find from the foregoing that the conduct en-
gaged in by Lospinuso and Gitlin during the critical
preelection period, as above related, included conduct
which supported both the complaint' s 8(a)(1) allega-
tions and the Union's Objections 2, 4, and 5 to the
election held February 4, 1972. As found, the unlaw-
ful acts committed by Lospinuso as Respondent's
agent during the critical period included unlawful in-
terrogations, explicit promises of benefits if the em-
ployees rejected the Union, and the solicitation of
employee signatures to a petition stating that the em-
16 The Administrative Law Judge properly reported the testimony of em-
ployee Rivera about this episode and subsequently credited that testimony;
but his summation of the conduct occurring in the preelection period refers
to the episode as one involving employee Klein. As the Administrative Law
Judge had found-and correctly so-that Klein had been discharged on
October 12, we believe that his reference to Klein, rather than to Zeichner,
as the individual to whom the October 19 plant closure statement was ad-
dressed , was an inadvertent error.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees did not want the Union . In like or related
view , Respondent's officials engaged in further un-
lawful interrogation of some employees and told em-
ployees that they would get more money if they got
the Union out of the shop. In addition one of the
officials made threats of plant closure or relocation to
Rivera and to Zeichner in Rivera 's presence ; and an-
other indicated to Rivera that one of the reasons he
had not received more money by way of a Christmas
bonus was because Rivera was 100 percent for the
Union . All of this 8(axl) conduct, we find , interfered
with the employees' free choice in the election as al-
leged in Union's Objections 2, 4, and 5. Accordingly,
we shall set the election conducted February 4 aside,
dismiss the petition in Case 29-RC-1834, and vacate
all proceedings held in connection therewith , thereby
clearing the stage for consideration and disposition of
the alleged violations of Section 8(a)(5) and (1) of the
Act. See Irving Air Chute Company, Inc., Marathon
Division , 149 NLRB 627, 629.
D. The Violation of Section 8(a)(5) and (1) of the Act
As indicated above , the Union made a telegraphic
demand for recognition on October 1, 1971, and on
the morning of October 4, its agent made a personal
demand . Although Respondent told the union agent
that morning that it would recognize the Union if its
agent produced cards signed by a majority, when the
union agent returned that afternoon Respondent re-
neged on that agreement.
The complaint alleged , and the Administrative Law
Judge found , that by the above refusal to bargain with
the Union , Respondent violated Section 8(a)(5) and
(1) of the Act . The Administrative Law Judge's find-
ing rests , in part, on a subsidiary determination that
the Union , in fact, enjoyed majority status in a con-
cededly appropriate unit of Respondent's production
and maintenance employees by October 4. It also
rests on the Administrative Law Judge 's conclusion
that Respondent 's unfair labor practices made impos-
sible the free demonstration of employees ' choice
through the election process.
Respondent excepts to the Administrative Law
Judge's findings on the grounds , inter alia, that the
record fails to substantiate that the Union in fact
enjoyed majority status as of October 4. We find no
merit in this exception. The Administrative Law
Judge credited the testimony of Union President Co-
lavito that he had in his possession at the time that he
demanded recognition a total of 10 authorization
cards signed by the employees . His testimony is corro-
borated by the fact that 10 cards were in fact turned
over to a Board agent at the time the petition was filed
on the morning of October 5. While there was some
question as to the precise date on which some of the
cards were signed, all of them were duly authenticated
at this hearing. Accordingly, we find, as did the Ad-
ministrative Law Judge, that by October 4, 1971, and
certainly by the day before the petition was filed, the
Union enjoyed majority status in the concedely ap-
propriate unit of Respondent's production and main-
tenance employees."
Respondent's further exceptions to the Administra-
tive Law Judge's 8(a)(5) findings assert that, under the
standards set out in Gissel, supra, the 8(a)(5) violation
finding and the bargaining order are inappropriate in
any event. Respondent contends that the Administra-
tive Law Judge erred in failing to consider and to find
that use of our traditional remedies for the unfair
labor practices fairly chargeable to it could ensure a
fair rerun election.
We agree with Respondent that Gissel requires our
assessment of "the extensiveness of the employer's
unfair labor practices in terms of their past effects on
election conditions and the likelihood of their recur-
rence in the future." Gissel, supra, 614. But we do not
agree with its position that Gissel requires that we
refrain from issuing a bargaining order in this case.
Respondent's unfair labor practices which began
soon after the commencement of the Union's organi-
zational campaign, and which continued up to the eve
of the election, were certainly serious and pervasive in
character. They were unquestionably extensive in
their impact on the unit employees. Thus the unlawful
acts committed directly by Respondent's officials in-
volvd at least 8 of the complement of 17 unit employ-
ees, and those committed by Lospinuso as
Respondent's agent involved all of the unit employ-
ees." The total and deliberate campaign to abort suc-
cessful self-organization among the employees and to
circumvent the employee's enjoyment of the right to
bargain collectively through the Union as their desig-
nated representative included threats of plant closure
and job loss if the employees continued to support the
Union; promises of benefits in the event of union
ouster and concommitant statements that improve-
ments would have been made but for the employees'
union activity; widespread interrogation of employ-
ees; and the issuance to some of official instructions
that they report on the union activities and sympa-
thies of other employees and that they actively seek to
"talk" their fellow workers "out" of the Union.
Contrary to the view of our dissenting colleague,
the threats of plant closure and job loss in the event
17 Even excluding the card of employee Scott whose employment ceased
on October I
"As found above, the misconduct by Mac or Bruce Gitlin involved em-
ployees Kaplan , Klein , Rivera, Stabile , Zetchner , Solva, Singh, and Hernan-
dez. Lospinuso 's unlawful conduct was direct to all the unit employees.
MILGO INDUSTRIAL, INC.
of the Union's advent are plainly actions which in and
of themselves are egregious enough under the rule of
Gissel to come within the first category there specified,
of "unfair labor practices of such a nature that their
coercive effects cannot be eliminated by the applica-
tion of traditional remedies so that a fair and reliable
election [in this case a fair and reliable rerun] cannot
be had." 395 U.S. at 613-614. In any event, these
threats together with the other conduct described su-
pra surely bring this case within the second category
defined in Gissel, of "less extraordinary cases marked
by less pervasive practices which still have the tenden-
cy to undermine majority strength and impede the
election processes." Gissel, supra, 395 U.S. at 614. We
therefore find that this is indeed a case where "the
possibility of erasing the effects of [these] past practic-
es and of insuring a fair [rerun] by the use of tradi-
tional remedies," if at all present, "is slight and that
employee sentiment, once expressed through cards
could, on balance, be better protected by a bargaining
order." Gissel, supra, 395 U.S. at 614-615. For these
reasons, we shall, consistent with the Administrative
Law Judge's recommendations, include a bargaining
order as part of the remedial provisions of the order
we shall issue here.19
CONCLUSIONS OF LAW
1. Milgo Industrial, Inc., Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and it will effectuate
the purposes of the Act to assert jurisdiction herein.
2. Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Brooklyn, New York,
plant, including leadmen, pattern and model makers,
and the driver, but excluding office clerical and pro-
fessional employees and all supervisors, as defined in
Section 2(11) of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since October 4, 1971, the Union has been and
is the exclusive collective-bargaining representative of
19 Contrary to Respondent's contentions , and the suggestion of our dis-
senting colleague , the lapse of 4 months between the date the particular
threats of plant closure and job loss were made and the date of the election
does not lessen the lingering effect of their coercive impact Nor does the
fact that such threats were made to a minority of the unit employees (the
threat of plant closure to only two ; the threat of job loss to four, including
those two) serve to justify our withholding a bargaining order in this case.
It is reasonable to expect that the employees involved would have publicized
these matters to the Employer . We also note, in this respect, that had six
additional votes been cast for the Union, the Union would have won the
election.
1201
the Respondent's employees in the above appropriate
unit within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union as the
collective-bargaining representative of its employees
in an appropriate unit on and after October 4, 1971,
the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By threatening its employees with plant closure
and loss of jobs if their organizational efforts were
successful, by soliciting grievances and then indicat-
ing that unsatisfactory working conditions would be
improved only if the employees would halt their union
activity, by promising benefits if the Union were re-
jected, by instructing employees to engage in surveil-
lance and interrogation of their fellow workers and to
take measures to obtain defections from the Union,
and by polling and interrogating employees concern-
ing their activities, interests, and support, Respondent
interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed them by Section
7 of the Act and thereby violated Section 8(a)(1) of the
Act.
7. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. Respondent did not engage in conduct violative
of Section 8(a)(3) and (1) of the Act by terminating
Uwe Klein on October 12, 1971; it did not grant any
increased benefits to the employees, and it did not
commit any other alleged unfair labor practices apart
from those above described.
9. Objections 2, 4, and 5 to the election of February
4, 1971, are sustained.
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist therefrom and that it take certain affirma-
tive action designed to effectuate the purposes and
policies of the Act.
For reasons already stated, we deem it appropriate
that our affirmative order include a directive that Re-
spondent bargain with the Union upon request and,
if an understanding is reached, embody such under-
standing in a signed agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the Respondent, Milgo
Industrial, Inc., Brooklyn , New York, its officers,
agents , successors, and assigns, shall take the follow-
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing action:
1. Cease and desist from:
(a) Coercively interrogating any employee about
union support or union activities or instructing other
employees to engage in such interrogation of their
fellow workers.
(b) Instructing employees to take active measures
to obtain their fellow employees' rejection of a union
they may have designated as a bargaining representa-
tive.
(c) Threatening to close, sell, or move the plant if
the employees select Shopmen's Local Union No. 455,
International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, or any other
labor organization to represent them.
(d) Threatening employees with layoff or lesser
benefits if the employees select or continue to support
the above-named labor organization or any other la-
bor organization as their representative.
(e) Promising its employees benefits if they would
halt their union activity or telling its employees that
they would obtain certain improvements in unsatis-
factory working conditions only if they halt their
union activity.
(f) Soliciting employee grievances and telling em-
ployees that such grievances would be corrected if
they ceased their union activity.
(g) Refusing to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of its employees in the appropriate
unit.
(h) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named labor organization as the exclusive rep-
resentative of the employees in the appropriate unit
concerning wages, hours, and other conditions of em-
ployment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its premises in Brooklyn, New York,
copies of the attached notice marked "Appendix." 20
Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly signed
by Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
20 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the election conducted
in Case 29-RC-1834 on February 4, 1972, be, and it
hereby is, set aside, and that the proceeding be, and
it hereby is, vacated.
The allegation of the complaint that Uwe Klein was
discharged in violation of Section 8(a)(3) and (1) of
the Act be, and it hereby is, dismissed.
CHAIRMAN MILLER, concurring in part and dissenting
in part:
My disagreement with my colleagues goes to two
parts of the case. Unlike my colleagues, I find no
substantial evidentiary base for concluding that Re-
spondent was chargeable under agency principles for
the statements made by Lospinuso to his fellow em-
ployees in seeking to bring a halt to union activity.
And I would not hold that the antiunion statements
made by the Gitlins to individual employees provide
sufficient warrant for the issuance of a bargaining
order under the Gissel standards.
The allegation that Lospinuso, a nonsupervisory
leadman, acted as Respondent's agent in opposing the
Union to his fellow employees rests solely on the testi-
mony of one witness, employee Salvatore Stabile-
one of the two employees who made the initial contact
with the Union and who was primarily responsible for
signing up the employees. In his testimony, Stabile
describes certain remarks made by the Gitlins at an
employee-management meeting to which Stabile and
four or five other employees were summoned shortly
after union activity began.21 His summary of those
remarks is neither coherent nor complete, partly be-
cause Stabile had some difficulty with the English
language, and partly because Stabile, as he put it, "did
not remember" precisely what the Gitlins said as "this
long time, you know . . . I was not interested and
didn't pay too much attention."
According to Stabile, Mac Gitlin began that meet-
ing by saying Respondent had received "like commu-
nication from the Union and then he didn't know
where this come from . . . . he said he wouldn't think
the men who worked for him would have done that.
... we have to find out if the men in the shop are
satisfied or not, if it is them that tried to bring the
union in, if the men want a union," he (Gitlin) said
21 The Gitlins and Lospinuso himself , all called by Respondent , denied
that any meeting such as that was in fact held
MILGO INDUSTRIAL, INC.
"the u 'iion is no good because . . . if the union comes
in . . . the man whatever he does he have to do. If he
is a blacksmith he can 't sweep the floor, because the
union tell him what to do;" if the Company could not
"shift" employees, there could be layoffs; and "if he
got to pay a man he don't know, a helper, high wages
that mean that others get less money. . . ."; i.e., the
chance for "increases" would be "cut down." Under
suggestive questioning by General Counsel as to
whether the Gitlins asked those present to talk to the
employees, Stabile untimately purported to quote
Mac Gitlin as saying "got to try to talk to the men and
talk them out of the union, you know, to be good
boys."
Accepting Stabile's testimony as true, I would and
do agree with my colleagues, that most of Gitlin's
remarks at that meeting invaded the Section 7 rights
of employees who heard them and therefore violated
Section 8(a)(1). But I do not see how anything the
Gitlins said could be properly construed by us as
supporting a finding that the Gitlins there entrusted
the employees with agency authority. Lospinuso him-
self denied that he was instructed by anyone to con-
duct the three meetings that he did, and there is no
independent evidence whatsoever of management's
express knowledge that Lospinuso made the state-
ments which, if he were an agent , would be in viola-
tion of Section 8(a)(1). Lospinuso further testified that
he said all he did say to the employees on his own and
that he made it clear to the employees during the
course and conduct of the employee assemblies that
he was not acting at management 's behest. His testi-
mony in this respect is corroborated by that of Angelo
Rivera, a witness whom the Trial Examiner credited
and who admitted , on cross-examination , that Lospi-
nuso had told the employees when he was talking to
them that he did not represent the management. Los-
pinuso thus indicated plainly that he was speaking to
his fellow workers as one employee to others.
In sum, the most that was proved with respect to the
agency issue was that Respondent met with certain
employees he believed to be opposed to the Union
and made it clear that he would welcome their spread-
ing the message to other employees that the Union
was "no good" for the reasons which the Gitlins ex-
pressed. As Respondent offered the employees no re-
ward if they disseminated that message, and
threatened no discipline if they did not, I see no war-
rant for construing any part of the above conduct of
the Gitlins as an instruction, direction, or authoriza-
tion that the employees go forth and spy upon their
fellow employees in management 's behalf , promise
them grants of material benefits if they abandoned the
Union, and solicit signatures to an antiunion petition.
I would not therefore base any violation findings on
1203
the conduct of Lospinuso.22
I concur in that part of my colleagues' 8(a)(1) find-
ings that rest on the statements and threats made by
the Gitlins to individual employees. I also concur in
my colleagues' decision that the Gitlins' unlawful
statements, most of which were made after the repre-
sentation petition in this case was filed, constitute
objectionable preelection conduct and warrant setting
the election conducted February 4, 1972, aside. But I
do not agree with my colleagues' judgment that use of
our traditional remedies in this case could not rea-
sonably be expected to eradicate the effects of those
unfair labor practices and to insure a fair rerun elec-
tion.
Gitlin's threat of plant closure is plainly the most
serious of the unlawful acts chargeable to the Respon-
dent. See my dissent in General Stencils, Inc., 195
NLRB 1109. However, here, as in General Stencils, the
impact and lingering effect of that threat is highly
questionable. Rivera was the only witness who testi-
fied that such a threat was made 23 -once at a diner
away from the plant, sometime in October, and once,
in his hearing, to Zeichner a few days after Gitlin had
met with Rivera at the diner. Rivera was not asked if
he publicized the closure statement, and there is no
record evidence that he did so. It is possibly arguable
that the threat had some effect on his freedom to
exercise his organizational rights. But the special cir-
cumstances in this case would seem to defeat this
argument. Rivera was one of the two individuals who
initially contacted the Union and who prominently
espoused its cause. According to his testimonial de-
scription of another conversation he held with man-
agement some 5 months after that in which the
closure threat was made, he was still "100% for the
Union"-a fact, among others, to which Gitlin re-
ferred in explaining why Rivera had not obtained as
large a Christmas bonus as other employees. It is also
highly unlikely that it had any effect on Zeichner's
freedom to select or to reject the Union. And I ques-
tion whether any such inference could properly be
drawn in view of General Counsel's claim-albeit
found unsupported-that Zeichner, like Lospinuso,
was a management agent to whom Respondent had
entrusted the conduct of an antiunion campaign for
and on behalf of management 24
22 See NL.R.B v Majestic Weaving Co, Inc., of New York, 355 F.2d 854,
858-859 (C.A. 2, 1966); Materials Transportation Company, and Cement
Trucking Company, 170 NLRB 997, 1002 (Wofford). Dietz Forge Company of
Tennessee , 173 NLRB 19 (Mills).
23 The Gitlins testified that no such threat was made to Rivera or to
Zeichner at any time . Zeichner corroborated this testimony with respect to
the statement allegedly made by the Gitlins to him.
24 The complaint described Lospinuso , Zeichner, and Solva as manage-
ment agents . The Administrative Law Judge and my colleagues have found
this description applicable only to Lospinuso.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's other statements would not, in my
view, satisfy the Gissel requirements for our issuance
of a remedial bargaining order, as I view those re-
quirements. See my dissent in the General Stencils
case, supra. I would therefore dismiss the alleged vio-
lation of Section 8(a)(5) and (1) of the Act and direct
the conduct of a second election.
ate unit with respect to wages, hours, and other
terms and conditions of employment and, if an
understanding is reached, embody such under-
standing in a signed agreement.
MILGO INDUSTRIES, INC
(Employer)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively with Shopmen 's Local Union No.
455, International Association of Bridge , Struc-
tural and Ornamental Iron Workers , AFL-CIO,
as the exclusive representative of the employees
in the appropriate unit concerning wages, hours,
and other conditions of employment.
WE WILL NOT coercively interrogate any em-
ployee about union support or union activities or
instruct other employees to engage in such inter-
rogation of their fellow workers.
WE WILL NOT instruct employees to take active
measures to obtain their fellow employees ' rejec-
tion of a union they may have designated as bar-
gaining representative.
WE WILL NOT threaten to close , sell, or move the
plant if the employees select Shopmen's Local
Union No . 455, International Association of
Bridge , Structural and Ornamental Iron Work-
ers, AFL-CIO, or any other labor organization
to represent them, or threaten them with layoff or
lesser benefits if the employees select or continue
to support the above -named labor organization
or any other labor organization as their represen-
tative.
WE WILL NOT solicit employee grievances and
tell employees that such grievances would be cor-
rected if they cease their union activity.
WE WILL NOT offer you wage increases or other
benefits in order to induce you to refrain from
being or becoming members of or supporting the
Union or any other labor organization.
WE WILL NOT in any like or other related man-
ner interfere with , restrain, or coerce employees
in the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
WE WILL bargain collectively, upon request,
with the above-named Union as the exclusive
representative of the employees in the appropri-
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor, Brook-
lyn, New York 11201, Telephone 212-596-3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Trial Examiner: This case I was tried
in Brooklyn, New York, during 5 days, commencing May
25 and concluding June 8, 1972. The consolidated com-
plaint was issued on January 31, 1972, based upon charges
filed by Shopmen's Local Union 455, International Associa-
tion of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, herein called the Union. The original charge was
filed in Case 29-CA-2575 on October 18, 1971. Briefly stat-
ed, the amended consolidated complaint alleged that the
Respondent discharged Uwe Klein on October 12, in vari-
ous ways interfered with the Union's organizational cam-
paign, and unlawfully refused to bargain with the Union
which represented a majority of the Respondent's employ-
ees, all in violation of Section 8(a)(1), (3), and (5) and Sec-
tion 2(6) and (7) of the Act. In its answer, the Respondent
admitted certain jurisdictional allegations but denied the
commission of any unfair labor practices. On April 21, 1972,
the Regional Director issued an order consolidating these
cases and therein provided that the Trial Examiner rule on
the issues raised by the complaint as well as those raised by
Objections 1, 2, 4, and 5 in Case 29-RC-1834, and that
thereafter the case would be transferred to and continued
before the Board.
Upon the entire record 2 in the case, including my obser-
vation of the demeanor of the witnesses and consideration
i At the opening of the hearing , counsel for the Respondent moved to
delete Milgo Art Systems, Inc , as a respondent . I reserved ruling. Having
considered the record , the motion is hereby granted
2 At the hearing , based upon the objection of counsel for the Union and
the official court reporter, I refused to permit counsel for the Respondent to
operate a tape recorder Upon appeal, the Board reversed my ruling.
MILGO INDUSTRIAL, INC.
of the briefs filed by the parties on July 24, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
The Company here charged is a New York corporation
and is engaged in the production, manufacture, sale, and
distribution of metal construction items, metal sculpture,
metal decorative and art objects, and cut bodies and frames,
as well as other related products. It will be referred to as the
Respondent. Admittedly, the Respondent's business opera-
tions during the past year resulted in products being sold
and distributed valued'in excess of $500,000, of which prod-
ucts valued in excess of $50,000 were shipped from the
Brooklyn plant directly to States of the United States other
than the State of New York. I find that the Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. I further find that the Union
is a labor organization within the meaning of Section 2(5)
of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background
Mac Gitlin and Bruce Gitlin are, respectively, president
and vice president of the Respondent. On or about Septem-
ber 28 and during the ensuing 3 months, the Union engaged
in a campaign to organize the production and maintenance
employees of the Respondent. On September 30, the Union
requested the Respondent to recognize it as the exclusive
collective-bargaining representative of all production and
maintenance employees and to bargain collectively with it
as the exclusive collective-bargaining representative of the
unit employees. The Respondent refused to engage in bar-
gaining and the Union, on October 5, filed a representation
petition (Case 29-RC-1834). The complaint alleges that on
October 1 and 2 and various other dates thereafter the Git-
lins interrogated employees concerning their membership in
and activities and sympathies on behalf of the Union and
that during the months of October and November wage
increases and other benefits were granted employees in or-
der to induce them to refrain from becoming or remaining
members of or supporting the Union. Klein was discharged
on October 12, allegedly because he had joined the Union
and engaged in other concerted activities. We will first con-
sider the alleged independent violations of Section 8(a)(1) of
the Act.
B. Interference, Restraint, and Coercion
As is frequently the case in matters of this kind, the evi-
dence is in sharp conflict. In these circumstances , it seems
advisable to set forth evidence adduced by counsel for the
General Counsel first, followed by the material adduced by
the Respondent. In a final section I will make my conclu-
sions.
1. The General Counsel's case
1205
On September 29, Angel Rivera and Salvatore Stabile,
both employees, went to the offices of Local 455 and there
met with a business representative, John Zito. Rivera in-
formed Zito that he and Stabile had come on behalf of the
other employees who had expressed a desire that Local 455
become their collective-bargaining representative. Zito gave
them some authorization cards and explained that in order
for Local 455 to represent the employees the latter would
have to sign these cards. Rivera signed and dated his card
in the office, and then he and Stabile left. The following day
Rivera approached employees Singh, Hernandez, and Scott
in the shop, and gave each a blank authorization card and
told them it would be necessary to sign the cards if they
desired to be represented by Local 455. All three subse-
quently signed the cards and returned them to Rivera. Em-
ployee Uwe Klein was approached by Rivera during lunch
and at this time Rivera told Klein that he had gone to the
offices of Local 455 to ascertain if it would represent em-
ployees. Rivera gave Klein some Local 455 literature and a
blank authorization card, telling Klein that he should read
the literature and then sign the card if he wanted Local 455
to represent him. Klein read the literature during lunch and
later in the afternoon signed the card. He turned the card
over to Rivera in the center of the shop floor in the presence
of Rocco Lospinuso and Bernard Zeichner.
During the same period, Stabile visited the homes of four
employee relatives: Paul and Lino Mussi, and Antonio and
Peter Zichichi. Stabile showed each of them an authoriza-
tion card on which he had previously filled in the material
above the signature line and explained that it was a Local
455 card and they should sign the card if they wanted to join
Local 455. The four men signed the cards immediately and
gave them back to Stabile. The latter signed a card in his
home.
On or about September 30, William Colavito, president
of Local 455, met with all the card signers after work in a
bar near the Respondent's shop. At that meeting, Stabile
and Rivera gave Colavito the 10 authorization cards they
had obtained and Colavito explained the procedure Local
455 would follow in order to obtain recognition from the
Respondent.
The General Counsel contends that Lospinuso, Zeichner,
and Pasquale Solva, who are leadmen, at all times material
acted on behalf of Respondent and were agents of the Re-
spondent. The Respondent, however, denies this conten-
tion 3
Colavito went to the Respondent's shop on or about Oc-
tober 4 to demand recognition. On the same day, Mac Git-
lin spoke to Klein in the shop and asked him whether he had
heard anything about union activity in the permises and
whether he had signed a card for Local 455. Klein stated
that he had not signed a card and that he had no knowledge
of any union activity in the premises. A day or two after
Colavito's visit, Zeichner spoke to Stabile and stated that
"the boss" wished to speak to them. About an hour later
after finishing the day's work, Stabile went to an office in
3 No evidence was adduced with respect to the duties of Solva.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the shop where a meeting was taking place . Present at this
meeting were Mac and Bruce Gitlin, young Allan Gitlin,
Lospinuso, Zeichner, Solva, Henry Kaplan, and Stabile.
At this meeting Mac Gitlin, who did most of the talking,
stated that he had received a communication from Local
455 and that he believed the local was attempting to bluff
its way into the shop. He further stated that if Local 455
came into the shop he would be required to pay a man with
no experience a "high wage" and that , in consequence, cur-
rent employees could not receive as large pay increases as
they would if Local 455 were not in the shop. He further
stated that if Local 455 did get into the shop the current
practice of shifting employees from one job to another
would have to cease with the result that if there was no work
for an employee in his particular job category he would have
to be laid off. In addition, he told employees to attempt to
talk to the men to find out if they were satisfied with their
conditions of employment or whether it was they who had
brought Local 455 into the shop and to attempt to persuade
the employees to withdraw their support from Local 455.
During the course of the week of October 4, Lospinuso
called the employees into a meeting at the rear of the plant
at approximately 9:30 a .m., immediately after the morning
coffeebreak. This meeting lasted for approximately an hour
during which Lospinuso told the employees that he had
been informed by "the boss" that Local 455 had been in
communication with the Respondent and that it claimed to
represent some 90 percent of the employees. Lospinuso stat-
ed that he thought Local 455 was not telling the truth and
asked all those who wanted the Union to raise their hands.
An employee stated that the men did not wish to vote in that
manner and no one raised his hand . Lospinuso then told the
employees that "the boss" could not speak to them any
more because Local 455 was attempting to get into the shop;
however, he did tell them that, if they would state any
complaints to him , he would relay these to management. A
number of employees did state that they had complaints
about various conditions , such as unclean toilet facilities,
lack of heat in the winter, no posted list of holidays, the low
wage rates, and the lack of paid health benefits. Lospinuso
made written notes of these complaints and stated that he
would present them to management.
Either the same day or the following day Lospinuso
called another meeting of the employees in the rear of the
shop. He told them that he had spoken to Bruce Gitlin and
that the latter had agreed to post a list of holidays, that the
bathroom would be cleaned, a better heater would be in-
stalled, and the Respondent would pay for health insurance
for all employees. Lospinuso testified that he told the men
he would speak to each one of them individually concerning
the wage increase he would receive . He also informed them
that after speaking to them individually about their raises
a meeting would be held to give them an opportunity to vote
on whether or not they desired Local 455 to represent them,
adding that "the boss" conditioned granting the foregoing
benefits on the employees voting against Local 455. After
the meeting, Lospinuso came to employee Rivera and
showed him a piece of paper with a rate of pay written on
it and stated, "You are getting $3.50 an hour and if we get"
rid of the Union "you will get $3.75 an hour." Lospinuso
also told Stabile that he would receive a pay increase of 50
cents an hour. Klein, who had not been approached by
Lospinuso concerning a wage increase , asked why he was
not receiving one and Lospinuso told him that he would
"have to talk to Bruce about that." Klein did speak to Bruce
Gitlin and the latter replied that he was not receiving an
increase because he was one of the highest paid men in the
shop.
After these discussions between Lospinuso and the em-
ployees, a third meeting was called by Lospinuso in the back
of the shop. He told the employees that he was going to
prepare a petition for the men to sign and give it to manage-
ment . At the top of a blank piece of paper, Lospmuso wrote:
"We the employees of Milgo do not want to be represented
by Local 455." Lospinuso signed the petition, as did Solva
and Zeichner; however, none of the other employees signed.
Solva then picked up the petition and went into the compa-
ny office where, in the presence of the three Gitlins, he said,
"they turned us down."
On or about October 15, Stabile was told by Zeichner
about 3 o'clock in the afternoon that Bruce Gitlin wished
to speak to him in a diner near the shop. Stabile went into
this diner where he met Bruce Gitlin. The latter stated that
matters with Local 455 were getting "ridiculous" and that
if Local 455 did get into the shop he might have to close it
down, sell out, or move to a new location. On or about
October 19, Mac Gitlin, in a loud voice, told Zeichner that
if the "God damn union bullshit is going to continue I'm
going to close the God damn shop and get out of here."
At about the same time that Klein was discharged, Bruce
Gitlin spoke to employee Singh in the shop stating that "this
union business is very bad, I've spent a lot of money on
lawyers and this and that and all this money can go in your
pocket. . . ." Following this, Bruce had a conversation in
the shop with employees Rivera, Singh, Hernandez, and
Klein. The employees told him that they desired more mon-
ey and Bruce responded by saying that they would receive
more money only if Local 455 were rejected. Later in that
same day, according to Rivera, Bruce Gitlin approached
him and asked, "What do you think, are you going to vote
for the Union or what?" Rivera replied that he did not know
how he was going to vote.
Between Christmas and New Year's Rivera returned to
Mac Gitlin a $25 Christmas bonus he had received, explain-
ing that he felt he deserved to receive at least as much as the
other employees, who had been given more than $25. Ac-
cording to Rivera, Bruce stated that he did not get more
than $25 because Rivera was 100 percent for Local 455 and
had mentioned that he was likely to quit.
A day or so before the February 4 election, Bruce Gitlin
approached Rivera and told him not to quit his job, that if
he would vote in favor of the Company he would grow with
the Company and the employees would obtain benefits.
2. The Respondent's case
At the outset, counsel for the Respondent contends that
Lospinuso and Zeichner were not acting as agents of the
Respondent and, consequently, any interrogation in which
they engaged cannot be attributed to the Respondent. It is
true that neither of them is a supervisor ; it is also true that
they were found to be eligible to vote in the election and in
MILGO INDUSTRIAL, INC.
fact did vote without challenge . The General Counsel's case
in this regard rests primarily on the testimony of Stabile, a
recent immigrant who had some difficulty with the English
language during the course of his testimony . He described
a meeting that occurred in the office of Hank Kaplan which
was, so he testified , attended by the three Gitlins as well as
Ziechner, Lospinuso , and Solva . According to Stabile, ei-
ther Bruce or Mac Gitlin instructed the employees to ques-
tion their fellow employees concerning the Union.
Counsel for the Respondent contends that no such meet-
ing occured , and that Stabile 's testimony with respect there-
to is not credible . Stabile testified that there was "a lot of
talk" at the meeting , but he did not "pay attention because
I wasn't interested ." He then stated that "the bosses" said
they had "to find out if the men in the shop are satisfied or
not, if it is them that tried to bring the union in ." He further
added that one of the Gitlins said the men should "talk to
the men and see what's all about , this union ." Respondent's
counsel further points out that the General Counsel did not
call as witnesses any of the four rank -and-file employees
present and named by Stabile to corroborate the latter's
testimony, and that this "omission occurred because no
such corroboration exists ." Lospinuso testified that on
Tuesday , October 4, he had approached Bruce Gitlin for a
raise and was told that management could not discuss this
with him because the Union had made a claim to represent
a majority. According to Lospinuso , he was unaware of any
union activity up to that time and then spoke to Stabile,
Zeichner, and another employee during the coffeebreak,
advising them of his earlier discussion with Bruce Gitlin and
expressing surprise that union activity had been going on
without his knowledge . It is Lospinuso 's testimony that the
four employees then decided among themselves to speak to
the other men and find out what , if anything, they had heard
about the Union.
The two Gitlins denied ever having instructed any of the
employees to question their fellow workers with regard to
the Union . They denied that any such meeting as related by
Stabile occurred . In addition , it is contended that Lospinuso
stated he was not acting in behalf of the "bosses."
Contrary to the testimony produced by the General
Counsel , Lospinuso testified that the meetings and discus-
sions he held with the employees were not conducted during
working hours but during coffeebreaks or the lunch hour.
He further related that he did not tell either Bruce or Mac
Gitlin about these meetings until he went in with the list of
grievances.
With respect to the testimony of General Counsel's wit-
nesses that Bruce Gitlin promised them improved benefits
if they abandoned the Union , Gitlin denied having made
any such promises . Concerning Rivera's testimony that
about the middle of October he overheard Mac Gitlin tell
Zeichner that he was going to close the shop , Mac Gitlin
denied that he ever made such a statement to Ziechner.
Bruce Gitlin further denied Stabile's testimony that approx-
imately 2 weeks after Lospinuso 's meetings he told Stabile
that they might have to shut down the plant or go some
place else.
3. Conclusions
1207
After carefully weighing the evidence and the arguments
made in the briefs submitted to me , I come to the conclusion
that the evidence produced by counsel for the General
Counsel is entitled to be believed . Of course , there are some
minor discrepancies between the accounts given by the
Government's witnesses concerning the same alleged
events , but I think this is understandable , as no two people
have exactly the same recollection of an incident, particu-
larly one involving speech . The witnesses testified in a forth-
right manner and, on the whole ,. withstood skillful
cross-examination . They were unsophisticated witnesses
and, in in some instances , experienced difficulty in articulat-
ing what they had been told or observed. To me, they ap-
peared to be honestly endeavoring to tell the truth . I think
it most unlikely that they would have fabricated their entire
accounts in the detail they gave. On the other hand,
Respondent 's witnesses in substantial part confined them-
selves to denying that the conversations took place or that
the events related by the Government' s witnesses occurred.
As to Lospinuso's conduct in holding three meetings with
the employees and compiling a list of grievances which he
presented to management , I find it difficult to believe that
he would have initiated this activity without the express or
implied permission of or encouragement by representatives
of the Respondent . Stabile impressed me as a sincere wit-
ness and , despite his language handicap, gave an essentially
coherent account of what he had been told by representa-
tives of management. In view of this and his undoubted lack
of experience in labor relations in the United States, I
think it most improbable that he would be able to invent
and attribute to representatives of management language
which falls within the purview of Section 8(a)(1) of the Act.
Accordingly, I find that the Respondent , by the statements
set forth above, violated Section 8(a)(1) of the Act. I further
find that Lospinuso was instructed by management to ques-
tion employees and, therefore , his conduct as related above
is attributable to the Respondent and constitutes a violation
of Section 8(a)(1) of the Act. I so find.
C. The Refusal To Bargain
1. The appropriate unit
The complaint alleged, and the Respondent in its answer
admitted, that all production and maintenance employees
employed by the Respondent at its Brooklyn plant, includ-
ing leadmen , pattern and model makers , and the driver, but
excluding office clerical and professional employees, and all
supervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. I so find. As of October
1, 1971, there were 17 individuals in the appropriate unit
and 16 as of October 4.4
4 The following employees were in the Respondent's employ on October
l•
Pasquale Solva Paul Mussi
Rocco Lospinuso Pietro Zichichi
Bernard Zeichner Angelo Rivera
Continued
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The majority
Counsel for the General Counsel introduced in evidence
10 authorization cards, all dated September 30 except one
dated September 29, 1971, bearing the purported signatures
of employees within the appropriate unit. Counsel for the
Respondent contends, in his brief, that at the time of the
October 1 or October 4 demand for recognition the Union
"did not represent 9 or more of the seventeen employees."
First, the Respondent contends that the card of Joseph
Scott should not be counted towards a majority for the
reason that Scott was no longer employed when the Union's
telegram requesting recognition was received. The
Respondent's workday is from 7 a.m. to 3:30 p.m. and
Scott's last day of work was Friday, October 1. The telegram
demanding recognition was delivered to the Respondent's
office after 4 p.m. that day. Counsel for the Respondent
next contends that the cards of the two Mussis and the two
Zichichis cannot be counted towards a majority showing on
October 1. The record shows that Stabile solicited the signa-
tures of these four persons, his relatives. He testified that he
obtained the cards from the Union's office in Manhattan in
September, and further testified, in response to my question
concerning the date appearing on the cards (September 30,
except in the case of Rivera's card which is dated September
29), that he "guessed" that his wife put the date on the card
the same day that he had been to the union hall and ob-
tained them . She filled out all the information except the
signature line. Stabile testified that he called on his relatives
"probably the same night I went to one and next night I
went to the other ." He added that the solicitation was ac-
complished in 2 days according to his best estimate . Counsel
for the Respondent further argues that the four relatives of
Stabile did not understand the purpose of the cards which
they signed inasmuch as they cannot read English and be-
cause the contents of the cards were not explained to them.
However, the record clearly shows that these four individu-
als understood that the cards they were signing were union
cards and, in addition, Stabile gave them a "Union book,"
i.e., a contract, which showed how much a laborer would
receive and how much a welder would receive , and so Sta-
bile testified, "they agreed." I shall, therefore, count these
cards.
Finally, counsel for the Respondent argues that Klein's
card should not be counted toward a majority either on
October 1 or October 4. His card bears the date of Septem-
ber 30, but he testified that he could not recall "the exact
date" that he signed it. He was solicited by Rivera, so he
testified, as he was having lunch in front of the shop and
that Rivera gave him some union pamphlets and a card and
told Klein that if he wanted the Union to represent him to
sign a card . It is Klein's testimony that he signed the card
about 3 o'clock and turned it over to Rivera. In response to
a question whether he attended any meetings with union
Salvatore Stabile Uwe Klein
Lino Mussi Joseph Scott
Carmelo Fote Tibor Keller
Gene Singh Henry Kaplan
Miguel Hernandez John Lobel]
Antonio Zichichi
officials after signing and returning the card, Klein testified
that he thought he attended a meeting "the day after I
signed" in a bar about a block away from the shop. Colavito
testified that this meeting occurred on September 30 and
that the employees turned their signed cards over to him.
Counsel also points to Klein's testimony in an unemploy-
ment compensation hearing held on January 26, in support
of his contention that Klein signed the card later than Sep-
tember 30. In that proceeding, he testified that he signed a
union card "just a week before I was discharged," which
counsel for the Respondent argues means October 5. In
addition, Klein testified that Colavito visited the
Respondent's premises before he met with the employees in
the bar and that this occurred a "day or so" before the
meeting although he stated he was "not sure." Counsel for
the Respondent concludes that the "the totality of credible
evidence establishes that Colavito met with the Employees
late in the afternoon of Monday, October 4," and , in conse-
quence, since Klein "had not signed his card when Colavito
visited the Employer's premises on Monday, October 4, to
make his demand for recognition, his card cannot be count-
ed towards a majority on that day." Upon all the evidence,
I am persuaded and find that the signed cards were turned
over to Colavito prior to October 4.5
3. The demand and refusal
Colavito testified that he called at the plant between 9:30
and 10 in the morning of October 4 and spoke to Bruce
Gitlin. At that time he did not have the signed authorization
cards with him. He next visited the plant about 2 o'clock the
same day. At the morning meeting, there was some discus-
sion as to the Respondent's inspecting the cards. It was
agreed that if Colavito would return later in the day with
cards signed by a majority of the employees the Respondent
would recognize Local 455, but if by that time Colavito was
unable to produce a sufficient number of cards he would
cease all organizational efforts among the Respondent's em-
ployees. In the afternoon, when the parties met, and before
Colavito could show them the cards, Bruce Gitlin stated
that "we changed our mind, we are not interested in what
we agreed to earlier in the day."
I think the claim that the Respondent violated Section
8(a)(5) of the Act by refusing to recognize and bargain
collectively with Local 455 is fully established. By October
1, 10 of the Respondent's 17 unit employees had designated
Local 455 as their collective-bargaining representative. As
of October 4, in view of the resignation of Joseph Scott,
Local 455 was the exclusive bargaining representative of 9
of the remaining 16 employees in the unit. In addition to
refusing to bargain with Local 455, the Respondent engaged
in numerous unlawful interrogations, threats, and promises
of benefits which continued until immediately before the
election on February 4, 19716
S I have not overlooked the testimony of Rivera , which to some extent
contradicts Klein's testimony , regarding whether Klein signed the card in
Rivera 's presence and whether there was a 2- or 3-hour time lapse between
the time Rivera gave him the card and the time Klein signed it.
6 The results of the election were that, out of approximately 17 eligible
voters, 15 valid ballots were counted, 12 against the Union and 3 for the
Union, with 2 challenged ballots Local 455 filed timely objections on Febru-
ary 10 which alleged that on the eve of the election and prior thereto the
MILGO INDUSTRIAL, INC.
D. The Termination of Uwe Klein
Klein began working for the Respondent in September
1970 as a welder. The following November he left his em-
ployment because he had a drug habit, which he had dis-
cussed with both the Gitlins who had told him that they
were willing to assist him in the matter . Klein committed
himself to the New York State Narcotics Commission and
was told by the Gitlins that when he completed the program
he could have his job back. He did return in May 1971 but
about a month later began using heroin. Bruce Gitlin stated
that he was willing to help Klein to get on a methadone
program, and he was admitted to such a program in August
and has continued with it since.
During September 1970, Angel Rivera, a fellow employ-
ee, spoke to Klein during lunch period and stated that he
had gone down to the Union's office to ascertain if the
Union would be interested in representing the employees.
Rivera gave Klein some pamphlets and a card and said that
if Klein wished the Union to represent him he should sign
the card. Klein returned the card to Rivera on the shop floor
later on during working hours. At that time the foreman,
Lospinuso, and Bruce Gitlin were behind him. The follow-
ing day after work Klein attended a union meeting in a bar
near the plant. William Colavito, president of the Union,
was there. The employees signed cards and made inquiries
concerning the Union. About 2 or 3 days after Klein signed
his card, Colavito came to the shop. On the same day Mac
Gitlin questioned Klein about what he knew of a union
coming into the shop and asked if he had signed any cards
or pledges. Klein answered in the negative.
Klein testified that from the time he became employed in
September 1970 and left in November he was not absent
"too often" but admitted that he was late five or six times.
He was told by supervision that he should get in on time or
he would be fired. The last day Klein worked was October
12. He testified he was 20 or 25 minutes late. As he went
through the office door, he met Mac Gitlin who told him,
"Don't bother getting your card. You're fired." Gitlin fur-
ther added that Klein was not "the only one who is going
to be fired," and mentioned the names of Rivera and Gene
Singh. Klein packed his tools and while he was doing so
Gitlin followed him around the shop.
On cross-examination, Klein recalled that he had testified
at an unemployment compensation hearing on January 26,
and that on that occasion he stated that he was late from
time to time because the methadone made him sleepy. He
further related that on the day he was terminated he was 40
minutes late and that he told Mac Gitlin that the train was
15 minutes late and that he was having some difficulty with
the truck he was driving.
Mac Gitlin testified that he terminated Klein because of
his "consistent lateness," and for no other reason. During
employer made misrepresentations to the employees concerning the Union,
granted benefits and made promises of benefits in order to induce the em-
ployees to vote against the Union , hired employees solely for the purpose of
having them vote against the Union , harassed and punished by economic
deprivation those employees who were known to be supporting the Union,
and by the foregoing and other discriminatory acts made impossible a free
election.
1209
the period May 1971 until October 8, Klein was tardy about
30 or 40 times, a fact which is supported by Klein's time-
cards. Gitlin testified that on "numerous occasions" he had
warned Klein regarding his lateness and that when Klein
came in late on October 12 Gitlin met him at the door and
stated that he "told him not to bother [to] punch in, he is
through." Klein stated that he had slept late and Gitlin told
him to go some other place to sleep, that he was through.
Gitlin further testified that he had no knowledge that Klein
had signed a union card prior to his discharge. He also
denied Klein's testimony to the effect that when Colavito
visited the plant he (Gitlin) asked Klein if he knew anything
about a union coming in and if he had signed a union card.
Gitlin further testified that he did not call a meeting of
employees after working hours a few days after Colavito
visited the plant, and, to his knowledge, no such meeting
was held. He also denied making any comment to Bernie,
Rocco, Sal, Pat, or Hank that they should talk to the other
men and see what the union matter was all about and to
attempt to ascertain if the men wanted to be represented by
the Union. He did not hear Bruce or Allen make such a
request.
Although I have found above that the Respondent en-
gaged in unlawful interrogation of employees and granted
them wage increases and other benefits in an effort to per-
suade them to refrain from becoming or remaining mem-
bers of the Union, I am not convinced that it discharged
Klein because of his membership and/or activity in behalf
of the Union. In the first place, Klein admittedly was chron-
ically tardy in coming to work, and had been warned a
number of times that he was not a privileged character and
should report to work on time. Moreover, the Gitlins were
sympathetic with his drug problem and gave him assistance
in becoming a participant in the New York State Metha-
done Program. While Klein was known by the Respondent
to have joined the Union, it is also evident that it was aware
of Rivera's activity which was considerably more expansive
than that of Klein. On balance, I am persuaded that the real
reason for the termination of Klein was his consistent tardi-
ness in reporting for work. Accordingly, I shall dismiss the
allegation of the complaint pertaining to him.
E. The Objections to the Election
The Union filed objections on FebruaFy 10, which may
be summarized as follows:
1. On the eve of the election and shortly prior there-
to, the Employer made misrepresentations to its em-
ployees concerning the Union, which impaired the
employees' ability.
2. The Employer granted benefits and made prom-
ises of benefits to the employees should they vote
against the Union.
3. The Employer hired employees solely for the pur-
pose of having said employees vote against the Union
in the election.
4. The Employer harassed and punished by eco-
nomic deprivation those employees who he knew were
supporting the Union.
5. By the above and other intimidatory acts, the Em-
ployer made impossible any free choice in the above
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election.
The Regional Director found that the Union presented
no evidence in support of Objection 3 and , moreover, that
it amounted to a postelection challenge . I concur in his
finding.
As we have seen above , at the meeting with employees on
October 4, Mac Gitlin stated that if the Union came into the
shop the Respondent would be required to pay a man with
no experience a "high wage" and that in consequence cur-
rent employees could not receive as large pay increases as
they would if the Union were not in the shop . He urged
employees to talk to the men and attempt to persuade them
to withdraw their support from the Union . I've also found
above that Lospinuso , acting on behalf of the Respondent,
held meetings with employees , solicited grievances and pre-
sented these to management , and obtained corrections and
improved benefits . He told the employees that these benefits
were conditional upon the employees voting against the
Union . Lospinuso further prepared a petition repudiating
the Union and requested employees to sign it; however,
only he and two others signed it.
On or about October 15, Bruce Gitlin told employees that
if the Union got into the shop he might have to close it, sell
out, or move to a new location . Mac Gitlin, about October
19, told employee Klein that if the union activity continued
he was going to close down the shop . Between Christmas
and New Year's on the occasion when employee Rivera
returned to Mac Gitlin a $25 Christmas bonus, Bruce Gitlin
stated that Rivera did not get more than $25 because he was
100 percent for the Union. Shortly before the February 4
election, Bruce Gitlin approached Rivera and stated that if
Rivera would vote in favor of the Company he would grow
with the Company and the employees would obtain bene-
fits.
I am satisfied and find that, by the foregoing conduct,
more fully set forth in section III, B of this Decision, the
Respondent made a reelection impossible.
CONCLUSIONS OF LAW
1. By interrogating its employees concerning their mem-
bership in, activities on behalf of, and sympathies in and for
the Union, the Respondent interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act.
2. By granting its employees wage increases and other
benefits in an effort to induce them to refrain from becom-
ing or remaining members of the Union or giving it assis-
tance or support, the Respondent interfered with,
restrained, and coerced its employees in the exercise of their
rights under Section 7 of the Act and thereby violated Sec-
tion 8(aXl) of the Act.
3. By refusing to bargain collectively with the Union as
the collective-bargaining representative of its employees in
the appropriate unit, the Respondent has violated Section
8(aX5) and (1) of the Act.
4. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. By terminating Uwe Klein on October 12, 1971, the
Respondent did not engage in conduct violative of Section
8(aX3) and (1) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, I find it
necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from any
other invasions of the Section 7 rights of its employees, and
to take certain affirmative action.
[Recommended Order omitted from publication.]