Philamon Laboratories, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1961

131 N.L.R.B. 80 (N.L.R.B. 1961)

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
122 NLRB 81, 85) ; and (2) Gold's operations do not otherwise meet
the Board's minimum standard of $50,000 annual gross business
needed for the exercise of its powers over nonretail enterprises.
Hence we conclude that on the uncontroverted facts properly before
us we would not assert jurisdiction over the operations of Gold because
his annual volume of business falls below the Board's minimum stand-
ards applicable to nonretail businesses.
Accordingly, the parties are advised that on the facts before it the
Board would not assert jurisdiction over Gold because his operations
fail to meet the Board's minimum standards for taking jurisdiction
over nonretail enterprises.
CHAIRMAN MCCULLOCH took no part in the consideration of the
above Advisory Opinion.
Philamon Laboratories , Inc. and Local Union 868, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and "Employee Representation Com-
mittee," Party in Interest. Case No. 2-CA-6832. April 11, 1961
DECISION AND ORDER
On September 20, 1960, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings,' conclusions ,z and recom-
mendations of the Trial Examiner.
' We find no merit In the Respondent 's exception to the Trial Examiner 's reliance upon
employee Freeman C . King's authorization card, absent testimony by King , based upon
the Trial Examiner 's comparison of King's handwriting . In the circumstances , the trier
of fact could competently make the signature comparison . Combined Metal Mfg. Corp.,
123 NLRB 895; 7 Wigmore , Evidence § 2016 n. 1 (3d ed. 1940). In any case , we find,
as shown in the Intermediate Report , that even without King's card the Union had a
clear majority of employees in the appropriate unit when it made its recognition demand
on August 6, 1959, and on August 13, 1959, when Respondent was on notice of the Union's
representation petition.
2 In connection with Section 8(a) (2) finding, we agree with the Trial Examiner that the
August. 14 employees' committee and the standing committee are "labor organizations,"
131 NLRB No. 14.
PHILAMON LABORATORIES, INC.
ORDER
81
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Philamon Lab-
oratories, Inc., Westbury, New York, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing or failing to bargain collectively in good faith with
Local Union 868, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the exclusive repre-
sentative of all of Respondent's employees in the appropriate unit.
The appropriate bargaining unit is:
All production and maintenance employees employed at the Com-
pany's Westbury, New York, plant, including the hourly rated em-
ployees in the wiring department, machine shop, preprocessing
department, processing department, quality control department, por-
ters, and shipping clerks, but excluding office clerical employees, pro-
fessional employees, salesmen, guards, and supervisors as defined in
the Act. '
(b) Interfering in the formation of, or contributing assistance and
support to, the August 14 employees' committee or the standing em-
ployees' committee, or any other labor organization of its employees.
(c) Recognizing the August 14 committee or the standing commit-
tee, or any successor thereto, as the exclusive representative of its
employees for the purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment unless and until such labor or-
ganization shall have been certified by the Board as the exclusive
representative of such employees.
(d) Promising benefits to its employees to restrain or coerce them
with respect to their union affiliations or sympathies; and interrogat-
ing its employees in a manner constituting interference, restraint, or
coercion in violation of Section 8 (a) (1) of the Act, or in any other
manner interfering with, restraining, or coercing its employees in the
exercise of their rights to self-organization, to form labor organiza-
tions, to join or assist Local Union 868, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining and other mutual aid or pro-
particularly as it is clear that both these committees were formed for the purpose of
dealing with the Respondent concerning grievances , a sick leave plan , wage increases,
and the abolition of the profit sharing plan . See, e .g., Canlake Petroleum Corporation,
121 NLRB 1527, 1535.
599198-82-vol. 131-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tection, or to refrain from any and all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all its employees in the above-described
appropriate unit and embody any understanding reached in a signed
agreement.
(b) Withdraw and withhold all recognition from the August 14
employees' committee, and the standing employees' committee, as the
exclusive representative of its employees for the purpose of dealing
with it concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment unless and
until such labor organization shall have been certified by the Board
as the exclusive representative of such employees.
(c) Post at its plant in Westbury, New York, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being signed by the Respondent's representative, be posted by the
Respondent and maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted at its Westbury, New York, plant. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Local Union
868, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive representa-
tive of all employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and other
PHILAMON LABORATORIES, INC. 83
conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement. The bargain-
ing unit is :
All production and maintenance employees employed at
the Company's Westbury, New York, plant, including the
hourly rated employees in the wiring department, machine
shop, preprocessing department, processing department,
quality control department, porters, and shipping clerks,
but excluding officer clerical employees, professional em-
ployees, salesmen, guards, and supervisors as defined in the
Act.
WE WILL NOT interfere with the formation of or contribute as-
,sistance and support to any committee or labor organization of
our employees.
WE WILL NOT recognize the employees' committee which met
with management on August 14, 1959, or the employees' commit-
tee selected shortly thereafter, or any successor thereto, as the
exclusive representative of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment , unless and until such labor organization shall have been
certified by the Board as the exclusive representative of such
employees.
WE WILL NOT promise or grant our employees economic bene-
fits in return for their abandoning Local Union 868, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT interrogate our employees concerning their union
sympathies and intentions in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-organ-
ization, to form labor organizations, to join or assist Local Union
868, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to re-
frain from and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain from be-
coming members of Local Union 868, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organizations except to the extent that this right may
be affected by an agreement in conformity with Section 8(a) (3) of
the amended Act.
PHILADION LABORATORIES, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Alba B. Martin, the
duly designated Trial Examiner, in New York, New York, on January 25, and from
March 7 to March 9, 1960, in New York, New York, on complaint of the Gen-
eral Counsel and answer of Philamon Laboratories, Inc., the Respondent, sometimes
herein called the Company. The issues litigated were whether Respondent refused to
bargain collectively with Local Union 868, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein called the Local, the
Union, and the Teamsters, whether Respondent rendered unlawful assistance and
support to an employee committee and whether Respondent unlawfully interrogated
its employees'and promised and granted them benefits or improvements in their con-
ditions of employment if they refrained from becoming or remaining members of
the Union. The General Counsel presented an oral summation and Respondent filed
a helpful brief, which have been carefully considered. Decision was reserved on
Respondent's motion to dismiss the complaint for want of proof at the end of all
evidence. This motion is hereby 'ruled upon in accordance with the findings and
conclusions herein. After the hearing the parties submitted a stipulation, making
certain corrections in the transcript of the hearing. This stipulation is hereby ac-
cepted as a part of the record in the case. It has been placed in the exhibit'file as
General Counsel's Exhibit No. 26.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT COMPANY
Respondent is a New York corporation having its principal office and place of
business in Westbury, New York, herein called the plant, where it is engaged-in the
manufacture, sale, and distribution of electronic tuning forks and related products.
During the year prior to the issuance of the complaint Respondent manufactured,
sold, and distributed at the plant products valued at in excess of $50,000, of which
products valued in excess of $50,000 were shipped from said plant in interstate com-
merce directly to States of the United States other than the State of New York.
Respondent is, and has been at all times material herein, engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. On these facts I find that it will
effectuate the policies of the Act for the Board to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 868, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America , is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES ' • I
A. Thumbnail chronology ( all dates are in 1959)
Friday, July 24: Two employees of Respondent met with a business representative
of the Union and signed authorizations for the Union to represent them for purposes
of collective bargaining.
PHILAMON LABORATORIES , INC. 85
Tuesday July 28: Second organizational meeting. Union received 10 additional
applications.
Wednesday , August 5 : Third organizational meeting. Union received 4 more
authorizations making a majority-16 out of 29 in the appropriate unit.
Thursday, August 6: Union wired Respondent claiming to represent a majority "of
your employees' and requesting early appointment . Respondent received this wire at
1:25 p .m. and never answered it.
Friday, August 7, midmorning : Union representative telephoned Respondent, was
told by telephone operator that Company President Grib was in conference and
could not be disturbed . Union representative asked that Grib return his call. Grib
never did.
Monday, August 10 , midmorning: Two union representatives went to plant, told
Plant Manager Shinerer that they represented a majority "of his people" and re-
quested to bargain for a contract . Shinerer put them off , said Grib was on vacation,
would be back August 13 or 14 , that Shinerer would be in touch with Grib and that
if the union representatives would call Shinerer on August 12 (Wednesday ) Shinerer
would have an appointment for the Union with Grib for later in the week. Union
received 2 more authorizations , making 18 out of 29 . That afternoon Union filed
petition.
Wednesday , August 12 , morning: Plant Manager Shinerer told employee Anne Dee
that Grib knew about the union movement . Dee urged Shinerer .that she wanted to
see Grib and thought all employees should be told about the union movement.
Shinerer said he would try to get in touch with Grib . Early afternoon : Union tele-
phoned plant and asked for Shinerer , was told he was gone for the day, would be in
the following morning.
Thursday , August 13 , 9:15 a . m.: Union Agent Bruckner telephoned Shinerer at
plant, was told he was not in , was expected about 10 a.m. Bruckner asked that
Shinerer call him at his office after 1 p.m. Shinerer not having called , at 4 p.m.
Bruckner again called the plant, was told Shinerer was in conference, could not be
disturbed , that he would be out soon and would call Bruckner back . Shinerer did
not call Bruckner by 5 o'clock when the latter left his office. This day Grib arrived
at office from vacation , did not get in touch with Union but, at request of Anne Dee,
called meeting of all employees-at which Grib announced Teamsters claimed a
majority and had petitioned for an election and at which Grib made promises of
economic benefit to employees.
Friday, August 14, 9:30 a.m.: Two union representatives talked with Shinerer at
plant, Grib not being in yet, offered to show authorization slips to any impartial per-
son. Shinerer put them off , did not mention Grib's meeting with employees of the
previous day. About 1 p.m. Grib received committee of employees , made promises
of economic benefit to employees . About the same time Union Representative
Bruckner telephoned plant, asked for Shinerer , was told he was in conference.
Bruckner called again about 2:20 p.m., asked for Grib and Shinerer , was told "they
were all out to lunch ." Bruckner asked that they call him back. They never did.
At 4:30 p.m. two employees , saying they represented the employees , requested the
Union to hold off for 60 days to see if Grib would live up to his promises.
Monday, August 17: President Grib and Plant Manager Shinerer interrogated em-
ployee Trockel, who had been absent Friday. Plant Manager Shinerer conducted
poll among employees as to whether they wished to abolish profit-sharing plan and
take their share in the form of a 10-cent-an-hour increase in their paychecks.
Friday, August 21: Employees received increase in paychecks of 10 cents an hour
for payroll period ending Wednesday August 19 and were told by Company that
the additional amount represented the conversion of the profit-sharing plan to cash
payments . Union filed charge herein.
Monday, August 24: Regional Director informed Respondent he had approved
withdrawal of Union 's petition.
Friday, September 25: Respondent made first payments under new sick -leave plan,
for payroll period ending September 23.
November 1: On about this date Respondent gave all employees a general wage
increase of 10 cents an hour.
B. The refusal to bargain
1. The appropriate unit; the Union 's majority status
The parties stipulated and I find that the following production and maintenance
unit of Respondent 's employees at its plant constitutes an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All hourly rated employees included in the wiring department , machine shop, pre-
processing, processing , quality control, porters, and shipping clerks, but excluding
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office clerical employees, professional employees, salesmen, guards, and all supervi-
sors as defined in Section 2(11) of the Act.
The parties stipulated, the record established, and I find that on August 6, 1959,
and August 10, there were 29 employees in the above-described unit, and that on
August 13, there were 30 in this unit The record established further that the number
in the appropriate unit was not thereafter increased during the months of August and
September although it was decreased by at least two when one employee i left on
August 19 and another employee 2 left on September 9.
As a result of discontent among some of the employees in the plant on a number
of counts-including their feeling that grievances were not being handled by the
Respondent, dissatisfaction with the Company's profit-sharing plan, and the employ-
ees' desire for a sick-leave plan and for a raise-some 16 3 employees signed appli-
cations and bargaining authorizations for the Union between July 24 and August 5,
which were in the Union's possession when the Union first claimed bargaining rights
in its telegram to the Respondent on August 6. An additional application-authori-
zation form was signed on August 6 4 and 1 more on August 7 5-which 2 were
handed to the Union on August 10-making 18 in all. There was no evidence of
misrepresentation or fraud by the union representatives in the obtaining of the liga-
tures on these blanks.
As in many organizational campaigns some employees, originally reluctant, were
persuaded to sign by the urging of their fellow employees In its brief Respondent
contended that two of these authorizations, one executed August 4 by employee
Manno and another executed August 5 by employee LaDisa, were obtained by the
misrepresentation of fellow employees-citing the Rolitstein [sic] case.6 Manno
testified.
we figured that everybody at the moment all wanted the Union and then
all of a sudden they started to think it over and we figured we didn't need
them. . The fellows in my shop had told me that there was a majority of
the men that wanted a union and I should sign here and this and that, you know,
my own employees that I work with. Being that I didn't want the Union to
begin with, I was opposed to the whole idea all along, I figured I would have to
do it because there was a majority of the men and I got to work with the fellows
each day. A disagreement among the men is no good at all, although I didn't
want the Union to begin with They all seemed to be all hep on the idea They
all acted that they wanted them, anyway. . . .
To be noted in this testimony is that the witness did not claim that his fellow em-
ployees represented-as an employee in the Rohtstein case may have misrepre-
sented-that a majority of the employees had already signed union application and
authorization cards, but rather that a majority of the employees "wanted" a union.
A majority may well have wanted the Union at that time without having decided
that they would themselves sign application forms. The case is clearly distinguish-
able from the Rohtstein case. The employees' statement to Manno was not a mis-
statement as to any act or fact relating to the employees' grant of bargaining author-
ity. It was "sales talk" which Manno could have learned the truth or falsity of by
asking other employees It was, possibly, somewhat loose usage of language, as was
Manno's testimony that " . . we figured that everybody at the moment all wanted
the Union"; and his later testimony that, "they all seemed to be hep on the idea.
They all acted that they wanted them, anyway." The employees' statements to
Manno were not of such character as to invalidate Manno's designation.?
As for LaDisa, he testified as follows-
. The guys got together and they told me about the Union. In the beginning
T didn't want to join, until they kept getting into me. She (his aunt, Anne Dee)
was away and they told me not to tell her. . . . If I would tell her, I would
I Jeffrey Chance
$ Robert Wagner.
Employees Trockel, MacFall, Giordano, Untener Lacetera, Wagner, Skidmore, Cotrufo
(an assistant foreman), Heitmann, Miskovsky, Bronzino, Devine, LaTica, Alanno, Sehleich,
King
4 Employee Vendegna.
5 Employee Manelski
6 N L R B. v. H. Rohtstein it Co, Inc, 226 F. 2d (C A 1), enfg in part and setting aside
in part 120 NLRB 1556.
T Cf. E. H. Sargent and Co, a corpot atton, 99 NLRB 1318, 1322-1323. Harry Epstein
et al. d/b/a Top Mode Manufacturing Co., 97 NLRB 1273, 1296, enfd 203 F 2d 482
(C.A. 3).
PHILAMON LABORATORIES, INC. 87
have no friends in the shop. A couple of days passed and they kept on telling
me and I said I don't know. The last day they got at me, I said I would sign
it. 1 said that maybe they won't bother me no more. When my aunt got back,
I told her. We got together and I said I made a mistake, because she knows a
lot about the unions
LaDisa gave no testimony concerning any misrepresentation to him by either union
organizers or fellow employees. When he decided to execute it, his designation of
the Union was his own voluntary act, and 1 therefore include it as a valid designation
Each of the employees who signed cards, except King, testified that they signed
the authorizations on the dates they bear Despite several efforts the General
Counsel did not succeed in serving a subpena upon Freeman C. King, who was an
employee of Respondent at the time he allegedly signed an authorization on July 28.
Uncontradicted and credible testimony showed that in the regular course of the
organizational campaign the Union received 10 signed authorizations at a July 28
organizational meeting with employees in addition to the original two which were
executed on July 24. Mathematically King's would have to have been one of them,
else there would have been but nine. In addition King's signature on an "Em-
ployee's Withholding Exemption Certificate," in evidence, shows his signature to be
a very distinctive one. The signature on the authorization appears to be the same
signature With the authorization and the withholding form both in evidence
Respondent had an ample opportunity to check the authenticity of the signature on
the authorization. Respondent has not since then contended that the signature on
the authorization is not King's signature. Upon the above considerations and the
entire record I find that King's signed authorization, dated July 28, was one of those
received by the Union on that day, that King executed and signed it, and that it was
a valid designation 8
It follows from the above that on August 6 when the Union first claimed a ma-
jority, it represented 16 out of 29 in the appropriate unit. On August 14, when the
Union again claimed a majority and offered to show its cards to any neutral person,
the Union represented 18 out of 30 in the appropriate unit Thus I conclude that at
all times of concern herein from August 6 onward the Union has represented a
majority in an appropriate unit and has been and is the exclusive collective-
bargaining agent
2. The requests and the failure to respond
At about 1:25 p m. on Thursday, August 6, the Respondent received a tele-
gram addressed to President Grib from the president of the Local reading as follows:
This is to advise you that we represent the majority of your employees and
request an early appointment for the purpose of negotiating a collective
bargaining agreement . Contact me at Yukon 9-1280.
Respondent never replied to this telegram.
Friday, August 7, at about 10:30 a.m. the Local's business representative, Donald
J. Bruckner, telephoned Respondent, asked to speak to President Grib, and after
identifying himself was informed by the girl who answered the telephone that Grib
was in conference and could not be disturbed. Bruckner left his name and the
name of the president of the Local whose name had appeared on the telegram and
asked that Grib call back. Grib never called back.
The following Monday, August 10, two business representatives of the Local,
Bruckner and Leonard Shifrin, arrived at the plant about 9.15 a.m. and asked the
receptionist-telephone booth girl if they could see Mr. Grib. The girl informed
them that Grib was on vacation They asked to see whoever was next in charge
and Bruckner gave her his card. She disappeared and returned in a few minutes
with Charles Shinerer, who identified himself to them as the plant manager. They
introduced themselves to Shinerer and told him that they represented a majority
"of the pepole" and wanted to negotiate an agreement. Shinerer said that he had
no knowledge of it. Bruckner's testimony of the incident continued: "We asked
him if he had received the telegram and he said he did not know anything about it,
and that the-only person we could talk to was Mr Grib, who was pretty much of a
one-man operation in the plant. Unfortunately, Mr Grib was on vacation, but
Mr Grib was expected back either Thursday or Friday, but that Shinerer would
be in touch with him during the week, and that if I were to call Shinerer on the
12th, he would have an appointment for me with Mr. Grib later in the week"
8 Cf Irving Toitel et at d/b/a I Taitel and Ron, 119 NLRB 910. 912 Hunter Fngrneer-
lnq Company, 104 NLRB 1016, 1020.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It then being the period of the midmorning break for the employees, the union
representatives went around to the back of the building where the employees were
outside, and received from one of them two more signed application and authori-
zation cards, the employee verifying to Bruckner that Grib was on vacation. Bruck-
ner told him that Shinerer was going to make an appointment and the Bruckner
would be in touch with Shinerer on the 12th.
That afternoon, August 10, the Union filed a petition with the Regional Office in
Case No. 2-RC-10170. On August 13 Respondent received from the Regional
Director a letter advising Respondent that the petition had been filed for a unit of
"all hourly rated employees included in wiring dept., machine shop, pre-processing,
processing, quality control, porters and shipping clerks. Excluded all clerical help,
salesmen , guards, supervisors and professionals." The record does not reveal what
time on Thursday Respondent received this letter, but it was before the afternoon
meeting of Grib with the employees which began shortly after 3 p.m., because at
the meeting Grib stated that the Union had petitioned for an election .9
On Tuesday, August 11, the two union representatives met with a committee of
the employees, some seven or eight in number. Bruckner and Shifrin told the
employees that the Union had filed a petition for an election, but that they did
not know how long it would take and that they would keep trying to see Mr. Grib in
order to get recognition without going through the formal matter of an election.
Having done so before, at this meeting the employees again talked about what they
would want in a contract: They mentioned increase in wages, instituting a sick-
leave program, and their dissatisfaction with the profit-sharing plan.
On the 12th, Bruckner called Shinerer by telephone at about 1:30 or 2 p.m. The
girl at the other end of the telephone told him that Shinerer was gone for the day
but that he would be in the next morning.
The following morning, Thursday, August 13, Bruckner telephoned the plant and
was told that Shinerer was not in yet, that he was expected about 10. Bruckner re-
quested the telephone operator to have Shinerer call Bruckner at the latter's office,
that Bruckner would be there all afternoon after 1 p.m. Shinerer not having called
back, at about 4 p.m. Bruckner again called the plant, and was informed that
Shinerer was in conference and could not be disturbed, but that he would be out in a
very short time and would call Bruckner back. Bruckner remained at his office
until 5 o'clock and Shinerer did not call back.
The next morning, Friday, August 14, at about 9:30 Bruckner and Shifrin again
went out to the plant, asked to see Grib, who was not in , and then talked with
Shinerer. Bruckner told Shinerer that they were having trouble getting in touch
with him on the telephone and that they would like to see him and also get in touch
with Mr. Grib. Shinerer said that Bruckner would have to call back at noon be-
cause Grib was not in yet. Bruckner asked what time Shinerer went out for lunch
and the latter replied "I never go out." Bruckner stated that they were trying to
get - a "negotiated recognition rather than go through the formal matter of an
election." Bruckner pointed out that sometimes things are said' and done during an
election campaign which upset a plant or get the employees nervous and jumpy so
as to affect the overall production in the plant. Bruckner then said "We have the
cards. We represent a majority of your people. We are perfectly willing to show
them to any impartial person"-suggesting the neighborhood rabbi, priest, or
minister. Shinerer again said that Grib was the one who would have to make any
decision on that and that Bruckner should call him back after 12 noon. Shinerer did
not mention Grib's meeting with the employees of the previous day, considered
below.
Between I and 1:30 p.m. that day, August 14, at about the time Grib and Shinerer
were beginning another meeting with a group of employees, considered below,
Bruckner again called the plant and asked for Shinerer and was told that he was in
conference, that they were all in conference, but that Bruckner should call back in
about an hour and Shinerer would be free. Bruckner called again at about 2:15 or
2:20 p.m., asked for Shinerer or Grib, and was informed by the telephone operator
that they were all out to lunch. He then asked the telephone operator to "have
them call me back when they get a chance." Neither Grib nor Shinerer ever called
the Union back.
Bruckner testified that he asked the telephone operator at the plant if Mr. Grib
and Mr. Shinerer were getting the messages Bruckner was leaving for them, and she
replied that they were receiving them. Respondent introduced no evidence to the
contrary. I find on the entire record that they received all of the telephone calls left
for them.
90n August 24, after the filing of the charge herein, the -Regional Director approved
of the Union's withdrawal of the petition.
PHILAMON LABORATORIES, INC. 89
3. Bargaining directly with employees; promises of benefit; interrogations; granting
of benefits; suggesting an employee committee
On Thursday and Friday, August 13 and 14, while Respondent, on notice since
August 6 of the Union's claim to represent the employees, continued to ignore the
Union's claim and refused to enter into conversation with the Union concerning
it, President Grib responded hastily to the requests of employees to see him and
spent several hours discussing employee problems with the' employees, apparently
for the first time in many months. The record showed that there had been a time
some years before when Grib was accessible to the employees' complaints and griev-
ances, but that in the past year he had been too busy with other company problems
to have any time for the employees or even to be aware of the employees' grievances.
Upon Grib's early return from his 1-week vacation and his return to the plant
on Thursday, August 13, he was asked by employee Anne Dee to call a meeting
of all employees, and he immediately did so, passing the word down through
management. Grib told Dee that the Union had petitioned for an election, so by
this time Grib had evidently received the Regional Director's letter setting forth
the claimed appropriate unit. In seniority, Dee, was one of Respondent's oldest
employees and she had had a background, unbeknown to Respondent, as a union'
organizer for another union. She was strongly opposed to the organization of
Respondent's employees by the Teamsters Union, and on August 13, upon Grib's
return, she entered upon a countercampaign to defeat the Teamsters' organizational
drive. To be noted in connection with Dee's attitude was the testimony of her
nephew, John LaDisa, to the effect that the employees did not tell his aunt about
the union organization drive and did not want him to, because "they know how my
aunt is. . . . She was going to stick up for the boss. . . . Her attitude was
further revealed by her testimony that at this August 13 meeting she let the em-
ployees know "that I knew about unions"; she "really spoke [her] piece, the way
[she] felt at that particular time"; she told the employees that it was her experience
"that once there is a committee set up and there is a company management which
is completely separate . . . that eventually the feeling becomes one that the boss
is a bastard."
A number of witnesses called by the General Counsel and the only witness called
by Respondent, Anne Dee, testified concerning what was said at the August 13
meeting, which took place right after the 3 p.m. break or rest period, on company
time in the plant, and lasted an hour or more. There was little contradiction in the
testimony but different witnesses remembered different things that were said. The
following statement as to what took place at the meeting represents a composite of
all the testimony. Grib told the assembled employees that the Teamsters Union
had sent him a telegram, were claiming a majority of the employees, and had
petitioned for an election. Grib said that although the Teamsters were claiming
a majority, maybe they were shooting in the dark, maybe they did not really have
the support of the employees. Grib said that there would be an election and that
in the end it would be up to the employees to decide whether or not they wanted
the Union. Then Grib asked for any comments and any questions. Pursuant to
this invitation four principal subjects were raised by the employees for discussion:
grievances, a pay raise, the profit-sharing plan, and the need for a sick-leave plan.
In substance the employees said that of late their grievances were not being handled
by the Company. Grib replied that grievances had not been getting through to him,
that his lieutenants had let him down, that he himself had been very busy lately being
not only president of the Company but also chief engineer wrestling with engineering
problems Concerning a pay raise, Grib said that there will be a pay raise whether
or not the Union got in, that the Company had had a pay raise in the fire for a few
months. Grib listened to the employees' complaints about the Company's profit-
sharing plan, but made no commitment concerning it. To the employees' request
for sick leave, Grib replied in substance that he was against sick leave because
employees used it simply as a second vacation, but he allowed that employees should
be paid when they were actually sick.
The following afternoon, Friday, August 14, about 1 o'clock, Anne Dee, who
had been talking among the employees against the Union and in favor of wider
discussion of whether they wanted the Union, told Plant Manager Shinerer that some
of the employees wanted to discuss some of the subjects with Grib, and asked
Shinerer to arrange an immediate appointment with Grib. Shinerer returned in
about 10 minutes and the group was immediately admitted into Grib 's office-some
eight or nine employees selected earlier that day from each department as a com-
mittee to represent the employees . Anne Dee opened the meeting , which lasted
an hour or more, by telling Grib that she had talked to these employees, and that
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she felt that they had some gripes which he should listen to-which Grib did. One
employee made the point that the Company's opposition to a sick plan, which the
employees were going to fight for, was one reason why the employees wanted a
union. As his reason for opposing a sick-leave plan Grib gave the same reason
he had given the employees the day before. The employees then proposed a sick-
leave plan whereby employees be allowed 5 days of sick leave per year with the
understanding that at the end of the year they would be paid for any of the 5 days
that they were not out sick. Grib said in substance that that sounded like a good
plan and that he would think more about it along those lines. According to Anne
Dee, "He told the boys that certainly things like that, if it was brought to his atten-
tion, he certainly would agree to it." When employees raised the question why they
had not been told about it if, as Grib had said the previous day to the larger group,
a pay raise had been in the fire and they were going to get it, Grib replied in
substance that his lieutenants had let him down, that he did not know that the em-
ployees were asking for raises, that this information had not gotten through to him.
He reiterated what he had said the previous day that a pay raise had been in the
fire for a few months and that the employees were going to get it whether or not
the Union got in. Concerning profit sharing, he said that "when he first formed
this profit-sharing plan, he said it seemed to him like it would be a wonderful thing
for the employees. He says through the months that we have had this profit-sharing
plan, he though more about it. It seems that it is just a way . of forced savings.
That was h's exact words. It seems it was more or less forcing people to save
their money. He didn't think that was a right thing to do. He said that if the
people wanted to blow it, to blow it." Then Grib said that in view of the contro-
versy about the profit-sharing plan among the employees, he would do away with the
plan if that was what they wanted and that if they did away with it the employees
would receive their share of it in their wages.
The testimony of employee Joseph Lacetera is credited, to the effect that at one
of the meetings with employees Grib raised the question as to why employees had
not come to him with their gripes. The employee answer was that he could not
expect an employee to go see the boss. Grib replied that "we could have formed
the committee had we wanted to, a grievance committee, and come to him, if we were
afraid to go up alone, for obvious reasons, because any worker would be afraid to
talk to a boss. If we would send someone up to speak for us, there would be no
hard feelings. He said if we wanted to do that, we could." [Emphasis supplied 1
Employee Clement J. Trockel expressed it this way: "About the grievances, and
everything, he said we could set up a committee for grievances. [Emphasis supplied.1
After all this was all over, after the election or whatever it was going to be in the
future, we could set up a grievance opinion [sici. This was all set up as a matter
of fatherly, a grievance committee, or a suggestion box on the wall, or something
like that, to handle grievances, and things like that." Employee MacFall testified
that at the August 14 meeting Grib said "that he thought we should have talked
things over with our foremen, first of all, or we should have come directly to see
him if we really had a problem." Grib's statement was an obvious reference to the
Union, his expressed thought being that the employees should have consulted man-
agement about their problems before going to the Union. Anne Dee testified
that each time somebody raised a question at the August 14 meeting "somebody
raised the question should we set up our own committee." Dee observed to the
employees in substance that the important decision was whether they wanted to run
things themselves by either committee or individual presentation of grievances Dee
testified further that Grib "made it very clear that he would definitely meet with
anyone and discuss his own personal problems or department problems, anyway
they wanted to do it, whether there was a union in the shop or whether they wanted
to continue it the way we had always been doing it, on an individual basis." Dee
testified also that Grib said he could not make any promises as to what would take
place in the future, "that at this particular time he was restricted in making promises
of any kind whatsoever, but for them certainly to feel free at any time, whether they
had any of these problems or gripes they wanted to raise He made it very clear,
`whether you come in as a union committee or whether you come in individually, my
ears have always belonged to the employees in the plant."' Dee testified also that
Grib said that "when this [isl straightened out . . when he has to discuss it with
the union committee or individuals. he said he will promise not to let the plant
down, that there would be certain definite increases in all kinds of benefits in the
future, on a steady basis."
According to employee Manelski, at the second meeting which was the August 14
meeting. Grib said.
PHILAMON LABORATORIES, INC. 91
that we did have a perfect right to do what we are doing and that he was not
going to try to stop us, that the choice was our own. I believe he did mention
something to the effect that we would get a better deal if we passed . . . the
union by.
It is clear from the above testimony and the entire record, including the timing
of events, that although Grib may have talked about making no promises at the
present time, in fact he did make promises of benefit to the employees at the August
13 and 14 meetings; and whatever his qualifying language the clearly implied con-
dition was that the employees would abandon the Umon. He made these promises
to undermine the Union and induce the employees to abandon and ignore the Umon
and to keep the settling of employee problems within the plant between management
and its employees. As almost everybody then knew-management and the em-
ployees-at the very time of these meetings the Umon, representing a majority, was
knocking at Respondent's door, while within the meetings some employees, prin-
cipally Anne Dee, were talking openly in front of management of forming an em-
ployee committee to handle problems within the plant as they had in the past, on
an individual basis, or by comrmttee. Under these circumstances Grib's announce-
ment of a wage raise in addition to the regular increases the employees received-
the first the employees had been told about this wage raise, however long it may
have been "in the fire"-Grib's statements that he would consider instituting the
suggested sick-leave plan and would abolish the profit-sharing plan, if that was what
the employees wanted, coupled with his open promise to do business with any em-
ployee committee if they formed one, amounted under all the circumstances to prom-
ises of benefit under Section 8(c) of the Act and to interference, restraint, and
coercion under Section 8 (a) (1) of the Act.
After President Grib's promises to the employees on Thursday and Friday, after
work Friday two of the employees, Lacetera and Skidmore, told the Union's busi-
ness representative, Bruckner, that they represented the employees and that the em-
ployees wanted the Union to hold off for 60 days to see if Grib lived up to his prom-
ises. The employees confirmed to Bruckner that Grib had conducted meetings
of the employees on Thursday and Friday but they were very reluctant to tell
Bruckner exactly what had taken place. In fact Bruckner "had to feel my way
around and pump them somewhat to get whatever information I did."
Because of his absence from the plant at that time, employee Trockel missed the
afternoon meeting with Grib on Friday, August 14. The following Monday Plant
Manager Shinerer came to Trockel's bench where he was working, told him that
"the fellows had talked to Mr. Grib Friday and would I care to see him, and I said
`yes,' that I would " Trockel went with Shinerer into Grib's office and the three
had a conversation. First Grib and/or Shinerer told Trockel what had transpired
Friday. In Trockel's language, Gnb
told me about this sick leave they were going to try and formulate, the 5 days
sick leave, and such. . He said they had been trying to work out some sort
of sick leave plan. . He said the fellows weren't happy with it (the profit-
sharing plan) that a lot of them thought it was just a way of doing them out of
the Christmas bonus and things like that, and that they were going to do away
with the profit-sharing plan and put ten cents an hour more in their salary. . .
That's what he told me had been reached, that that was going to transpire.
Then Grib or Shinerer asked Trockel what he thought about all of this. Trockel,
who had been one of the first two employees to contact the Union and to sign a
union application and authorization, replied that "I would go along with the ma-
jority, that if they wanted to go along with how things were set up, that I would,
too." Just before the end of the conversation Grib told Trockel that he and Joe
Lacetera did not have to worry about their jobs, that "there would be no witch
hunt we would have to worry about."
On the entire record, and from the facts that Shinerer and Grib invited the con-
versation with Trockel, reiterated at least some of the promises previously made to
other employees, and finally assured him that his job was secure, I conclude that
Shinerer's and Grib's purpose in talking with Trockel, as well as the result, was to
persuade him by promises of benefit to abandon the Union and to assist in keeping
the settling of employee grievances and conditions of work within the plant between
management and the employees. Under all the circumstances repeatine the pro-
mises of benefit to Trockel. assuring him that these promises would he fulfilled, and
then asking him what he thought about all of this-which in itself was under all
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the circumstances unlawful interrogation 10-amounted to further interference, re-
straint, and- coercion of employees, Respondent thereby further violating Section
8(a)(1) of the Act.
Also on Monday, August 17, Plant Manager Shinerer conducted a poll among the
employees as to whether they wished to abolish the profit-sharing plan and make
their share in the form of a 10-cent-an-hour increase in their paychecks.
In their paychecks on Friday, August 21, for the payroll week ending August 19,
the amount of money received by each employee was increased by 10 cents an hour,
and the Company informed the employees that the additional amount of 10 cents
per hour represented the amount involved in the conversion of the profit-sharing
plan to cash payments. This was the fulfillment of one of Grib's promises to em-
ployees for the purpose of forestalling the union movement, and under all the cir-
cumstances the fulfillment, as well as the promise, for such purpose, amounted to
interference, restraint, and coercion of the rights of employees under Section 7 of
the Act, Respondent thereby violating Section 8(a)(1) of the Act.
On Friday, September 25, Respondent instituted a sick-leave plan, patterned upon
the suggestion of the employees' committee on August 14. On September 25 first
payments were made under the plan, for the payroll period ending September 23.
On about November 1, Respondent granted a general wage increase, giving each
employee a 10-cent-an-hour raise. This was the wage increase promised the em-
ployees on August 13 and 14. The granting of this wage increase in the face of the
Union's request for recognition reasonably tended to interfere with the employees
in the exercise of the rights guaranteed by the Act, Respondent thereby violating
Section 8(a) (1).
4. Respondent' s contentions , and conclusions , concerning refusal to bargain
In substance Respondent contended that the Union's description of the unit was
defective in its August 6 telegram, because it requested bargaining not for a specific
appropriate unit but for "your employees." It is clear, however, that before he
called the August 13 meeting with the employees, Grib had received the Regional
Director's letter setting forth the claimed appropriate unit , for when Dee asked him
to call the meeting Grib told Dee that the Union had filed a petition-which fact
he learned from the Regional Director's letter-which also gave the claimed appro-
priate unit.
In substance Respondent claimed that Respondent had a good-faith doubt as to
the Union's representation of a majority of its employees in an appropriate unit.
The record does not support such a conclusion. In his two conversations with
Bruckner and Shifrin, Plant Manager Shinerer never questioned the Union' s claim
to represent a majority, never referred the Union to the Board for a certification,
never asked who was included in the appropriate unit. No other company repre-
sentative had any contact at all with the Union. Thus Respondent never exhibited
any doubt to the Union-much less a good-faith doubt-as to the Union's repre-
sentation of a majority of its employees in an appropriate unit.
The entire pattern of Respondent's conduct and the sequence of its acts demon-
strated that Grib was not motivated by any good-faith doubt of the Union's ma-
jority. He returned early-on Thursday-from his 1-week vacation and as the
record suggests no other reason I conclude he returned early in order to deal with
the "union situation ." Upon his return, instead of responding to the Union's many
requests that he contact it, Grib instead assembled all employees and presided over
a group meeting that was strongly antiunion in flavor because of its domination by
Anne Dee. At this meeting, and the next day's meeting with a smaller group of
employees, as has been set forth above, Grib discovered what caused the employees
to go to the Union in the first place, promised a wage increase, promised to consider
other employee requests, and suggested the formation of an employees' committee.
Thereafter in short order Respondent fulfilled all the employees' hopes by converting
the profit-sharing fund into cash payments, by instituting the suggested sick-leave
plan, and by granting a wage increase . Thus Respondent by positive action quickly
removed all the reasons the employees expressed for wanting the Union.
Tn substance Respondent contended that it had a right to deal directly with the
employees because the employees were beginning to change their minds concerning
their designation of the Union before Grib dealt directly with them on August 13
and 14.
'Olt was unlawful hecauce under all the circumstances the interrogation reasonably
tended to restrain or interfere with the employees in the exercise of the rights guaranteed
by the Act Blue Flash Express, Inc . 109 NLRB 591. 593.
PHILAMON LABORATORIES, INC. 93
Their appearance, and the testimony of some, indicated that most of the em-
ployees were young and had had no previous experience with unions. Therefore
they were if anything, more susceptible than more sophisticated employees are, to
suggestions and hints from the president of the corporation for which they worked.
Although they were also influenced by Anne Dee to reconsider their union desig-
nation the record does not support a conclusion that hers was the major influence
upon their minds. And as the corporation president summoned the employees to
the first meeting and presided while Dee argued strenuously against any outside union
and in favor of the employees' reconsidering their designation of the Teamsters-
following which Grib promised economic benefits to the employees-a natural
reaction of the employees was that Dee spoke with the approval of "the boss," that
they could get what they wanted without the Union, so what further need did they
have of the Union. This conclusion was emphasized by Grib's suggestion that day
or the next, or both, that be would meet with an employees' committee any time
the employees wanted him to.
Particularly to be noted here is that at no time while Respondent was negotiating
with the employees or a committee of the employees, and while Respondent was
carrying out at least some of its promises, did any employee revoke his designation
of the Union as his bargaining agent or request the Union to give him back his
authorization. All that happened was that late in the day on August 14, after Grib's
direct dealing with the employees and his promises of economic benefits to them,
two employees, stating that they represented the employees, asked the Union to hold
off for 60 days to see if Grib lived up to his promises. And then, at an August 24
meeting conducted by the Union's representatives, Bruckner and Shifrin, according
to the credited testimony of the latter, a very credible witness , some employees said
that they wanted the Union to hold off for a while because,
they had formed some kind of a group which had been discussing some
of the things that they said were gripes with Mr. Grib or Mr. Shinerer. They
felt that Mr. Grib was being sincere when he promised that he would look into
some of their problems, some of their grievances, maybe a pay increase, some-
thing about a sick leave plan, and that they felt they wanted to give him an
opportunity for him to live up to some of the promises which they indicated
they had gotten, and they felt if they had received what they had asked for,
then they couldn't see why they needed a union to get it for them . That was
the general temper of the meeting . Why belong to the Union if we can get
what we want without the Union.
At this meeting "some" of the employees asked for their designations back. The
record is silent as to whether they were returned. To be noted in this connection is
that there was no expressed discontent with the Union's effort on behalf of the em-
ployees. As the Supreme Court has said,ll the Respondent
cannot , as justification for its refusal to bargain with the Union, set up
the defection of union members which it had induced by unfair labor practices,
even though the result was that the Union no longer had the support of a ma-
jority. It cannot thus, by its own action, disestablish the Union as the bargain-
ing representative of the employees, previously designated as such of their own
free will.
Upon all of the above facts and considerations and the entire record in the case
considered as a whole, I conclude and hold that by refusing and failing to recognize
and negotiate with the Union and instead engaging in the other unfair labor practices
found herein, Respondent was not motivated by any good-faith doubts but was
motivated by a desire to gain time and take action to dissipate the Union's majority.
Its actions were designed to choke off the employees ' union resolve and thus thwart
and undermine the Union. By such action Respondent violated Section 8(a)(5)
of the Act. Cf. Laabs, Inc., 128 NLRB 374.
5. Assistance to the employees' committee
Several witnesses (Dee, Cotrufo, Lacetera) testified that they each suggested the
formation of an employees' committee. On the basis of the other testimony of Dee,
Lacetera, and MacFall, however, given above, I believe and find that Grib himself
first suggested the formation of such a committee.
Whether or not Grib first suggested the idea, as has been seen above, the evidence
is clear that he enthusiastically endorsed the idea of dealing with his employees indi-
n Medo Photo Supply Corporat{on v. N.L.R.B., 321 U.S. 678.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vidually or by committee. This was in contrast to his having been too busy the past
year or so to consider employees' problems, and it was in contrast to his avoidance
of dealing with the Union at that very moment
Although the witnesses used the words "grievance committee," the record shows
that they were really thinking of it as a collective'bargaming committee. Thus, they
thought of the customary subjects of collective bargaining-wages, hours, and work-
ing conditions-as "grievances," but they actually discussed a wage increase, cash
payments instead of profit sharing, and a sick-leave plan, which are customary sub-
jects of collective bargaining. Thus, they were really talking about an employees'
representative collective-bargaining committee, and I so find.
As has been seen above, such a committee came into inchoate existence on August
14 before it went in to talk with Grib early that afternoon. This committee was
selected by employees to represent them in talking with Grib. There is no doubt
that Anne Dee's persuasiveness, combined with President Grib's blessing, brought
the committee into being It appears to have met but once with Grib, on August 14
early in the afternoon, when, as has been seen above, Grib discussed with it wages,
instituting a sick-leave plan and abolishing the profit-sharing plan.
Since then the employees have continued to discuss whether to have a standing
employees' committee to deal with Grib.
Immediately after the August 14 meeting with Grib, Frank Cotrufo who had on
July 27 signed a union authorization, with the permission of Plant Manager Shinerer
called a meeting of employees on company time, announced he was speaking for
those who had just seen Grib, related what had transpired in Grib's office, and tried
to "sell" the employees on the idea of getting along without the Union and of forming
an employees' union of their own for the purpose of "negotiate [ing]" with Grib
No decision was made at this time. Cotrufo testified that the employees are still
talking about forming a company union but that nothing has been done about form-
ing it. Employee Lacetera testified that some days later the employees decided to
form such a committee, and that each department selected one committeeman. Tend-
ing to corroborate Lacetera's testimony was employee MacFall's testimony that some
time after Cotrufo's meeting the employees met "to get a few people from each de-
partment to represent the employees." On the entire record I find that the employees
reached a decision to have a committee and that committeemen on it from the several
departments were selected. Once "formed" the committee never met, never organ-
ized, never asked to speak to any representative of the Company.
The complaint alleged that on and after August 14 Grib "recognized and bar-
gained with" the employees committee and granted benefits to the employees pursuant
to such bargaining. In its brief Respondent argued that the discussion at the August
14 meeting did not rise to the status of "bargaining." Nevertheless Grib's discussing
wages and conditions of work with the committee and his almost immediate granting
of the requests of the committee members while he continued to refuse to bargain
with the Union, gave assistance and support to the August 14 employees' committee.
The complaint alleged as as element of an 8(a) (2) violation the fact that Respond-
ent permitted the employees' committee to conduct its meetings, to engage in organ--
izational activities and to solicit members during working houss. The testimony
revealed a relaxed atmosphere in the plant, showed that during working hours
employees discussed the merits of the Union as well as of an employees' committee
Some, if not most, of the employee discussions took place during luncheon and break
periods just outside of the plant on company property Only one meeting was shown
to have occurred inside the plant on company time, the "Cotrufo meeting" of August
14, but on that occasion Cotrufo's request of Shinerer was that he himself-not a
committee-wanted to hold a meeting. The record did not establish beyond a doubt
that Shinerer was at the earlier August 14 meeting of the committee with Grib or
knew what Cotrufo was going to say to the employees at the "Cotrufo meeting "
Under all the circumstances I do not find assistance to an employees' committee in
what occurred on company time.
Although at the time he attended the August 14 meeting and later called and
addressed his meeting of employees, Frank Cotrufo was assistant foreman and
acting foreman of his department, I do not find that his actions were attributable to
Respondent in view of the fact that 3 days before, on August 11, when he was also
serving as assistant foreman and acting foreman, he served on a committee suggested
by the Union as a representative of his department, and as a committeeman met with
the Union's representative, Bruckner.
Respondent suggested that the committee which met with Grib on August 14 was
the same committee as was selected upon suggestion of the Union and met with
Bruckner on August 11, and that therefore the August 14 committee was in fact a
Teamsters' committee and not an'employees' committee suggested by Grib The
PHILAMON LABORATORIES, INC. 95
testimony did not sustain this position. Most importantly, Anne Dee was not on
the August 11 committee and she led the August 14 committee. Further only two
employees were shown definitely to have served on both committees, Cotrufo and
Lacetera. In addition four others may have but were not definitely proven to have
been members of both committees-Untener, Manelski, MacFall, and Soltys The
testimony proved that the following attended the August 11 meeting with Bruckner:
Trockel, Lacetera, Wagner, Cotrufo, Untener, and Skidmore. In addition Soltys
may have been there, and also Manelski and MacFall. Those who definitely met
with Grib on August 14 were Dee, Cotrufo, Giordano, Soltys, MacFall, Lacetera,
Manelski, and Devine. Untener may also have been there. On the entire record I
find and hold that they were two separate committees, one suggested by the Union,
the other by President Grib.
Present when the standing committee was selected some days after August 14
were two foremen, Roger Maurer and Al Sebella. Under all the circumstances I
find that their presence was an element of company interference with the formation
of, and assistance to, the standing committee
On the entire record considered as a whole I find that by Grib's suggesting that the
employees form their own committee and his assurances to the employees that he
would deal with a committee; by Grib's dealing with the August 14 committee;
by Respondent's carrying out Grib's promises to the August 14 committee-by con-
verting the profit-sharing fund into cash payments, initiating a sick-leave plan and
granting a wage increase; and by the presence of two foremen when the standing
committee was selected; Respondent interfered in the formation of both the August
14 committee and the standing committee and Respondent contributed assistance and
support to both the August 14 committee and the standing committee. As both these
committees were employee representation committees formed for the purpose of
dealing with Respondent concerning grievances, wages, rates of pay, and conditions
of work, I find that they were both labor organizations within the meaning of Section
2(5) of the Act, and that Respondent's contribution of assistance and support to
these labor organizations was in violation of Section 8(a)(2) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having refused to bargaing collectively with the Union as the exclusive
representative of its employees in an appropriate unit, I recommend that Respondent,
upon request, bargain collectively with the Union as the exclusive representative of
its employees in the unit set forth above concerning wages, hours, and other terms
and conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement.
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act, and the danger of their commis-
sion in the future is to be anticipated from Respondent 's conduct in the past. The
preventive purposes of the Act will be thwarted unless the order is coextensive with
the threat. In order , therefore, to make more effective the interdependent guaran-
tees of Section 7, to prevent a recurrence of unfair labor practices , and thereby
minimize industrial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, I shall recommend that the Respondent be ordered to cease
and desist from infringing in any manner upon the rights guaranteed in Section 7 of
the Act
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Philamon Laboratories , Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All of Respondent's hourly rated employees at its Westbury, New York, plant
in the wiring department, machine shop, preprocessing, processing, quality control,
porters, and shipping clerks, but excluding office clerical employees, professional
employees, salesmen, guards, 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. The Union was on August 6, 1959, and at all times thereafter has been, the
exclusive representative of all employees in the above-described appropriate unit for
the purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. At all times after August 6, 1959, by refusing to bargaing collectively with the
Union as the exclusive representative of its employees in the above-described appro-
priate unit, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8-(a) (5) of the Act.
6. By interfering in the formation of the August 14 employees' committee and the
standing committee, and by contributing assistance and support to the August 14
employees' committee and the standing committee Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(2) of
the Act.
7. By interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a),(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Atlas Shower Door Co., Distribudor Inc. d/b/a Basco-Sacramento,
Sacramento Shower Door Co., Golden State Shower Door Co.,
Fresno Shower Door Co., and Associated Shower Door 1 and
Warehousemen's Union, Local 17, I.L.W.U., Independent, Peti-
tioner. Case No. 20-RC-4364. April 11, 1961
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Joseph L. Meagher, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
Upon the entire record in this case, the Boards finds :
1. The Employer is engaged in commerce within the meaning of
the Act 2
1 The name of the Employer has been amended in accord with the evidence, While the
above companies are variously designated in the record, their names appear above in
accord with the documentary evidence.
' On the basis of our unit finding herein, we find that the companies named above, who
have been signatory parties to separate but identical multiemployer contracts, constitute
a single employer for jurisdictional purposes. While all these companies are engaged in
processing and/or manufacturing operations, some are also engaged in wholesaling or
retailing. The combined inflow of the members, as a group, exceeds $50,000 a year, and
their combined gross volume of business, as a group, exceeds $500,000 a year. Under
these circumstances, we find that the Employer is engaged in commerce and that it will
effectuate the policies of the Act to assert jurisdiction herein. See grist Gradis, et at.,
121 NLRB 601, 602.
131 NLRB No. 2.