Solvay Baking Co.

National Labor Relations Board - Board Decisions

Jun 16, 1969

176 N.L.R.B. 673 (N.L.R.B. 1969)

SOLVAY BAKING COMPANY
Chris Christou d /b/a Solvay Baking Company and
Dairy & Bakery Salesmen & Dairy Employees
Local Union 316, affiliated with the International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
3-CA-3624'
June 16, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On March 25, 1969, Trial Examiner Sidney J.
Barban issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the
complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. The Trial Examiner also
found that certain conduct of Respondent had
interfered with the election held on October 16,
1968,' and recommended that the election be set
aside and a second election held. Thereafter, the
General Counsel filed exceptions to the Trial
Examiner's Decision with a supporting brief, and
Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner, except as modified below.
1. We agree with the Trial Examiner that
Respondent violated Section 8(a)(1) by illegally
threatending and interrogating employee Woosley
with respect to his union activities, giving Woosley
the impression that Respondent was keeping the
employees' union activities under surveillance,
advising Woosley that he would have cause to regret
his advocacy of the Union, and interrogating
employees Gian$iobbe and Papazides about their
union membership and activities. We also agree with
'This case was previously consolidated with Case 3-RC-4524. In the
Trial Examiner 's Decision of March 25, 1969, the cans were severed and
Can 3-RC-4524 was remanded to the Regional Director for Region 3 for
further appropriate action . On May 7, 1969, the Regional Director set
aside the election.
'All dates hereinafter are in 1968.
673
the Trial Examiner's conclusion that by engaging in
the foregoing conduct, Respondent interfered with
the employees' exercise of their free choice in the
election held on October 16, which the Union lost
1-2.'
2. The Trial Examiner dismissed the Section
8(a)(5) allegation of the complaint, as in his opinion,
Respondent's Section 8(a)(1) conduct was not "so
flagrant, widespread or continued" that it can be
said that it evidenced a rejection of the Act's
policies. The Trial Examiner further stated that the
"paucity" of evidence of interference with the
employees' rights and the lack of significant delay in
agreeing to secret-ballot election (14 days from
petition for election to consent agreement, and 9
days from agreement to election)' negate any idea
that Respondent desired to gain time within which
to undermind the Union and dissipate its majority.
For the reasons set forth below, we disagree with
the Trial Examiner's conclusion that Respondent did
not violate Section 8(a)(5) of the Act.
This case involves events arising out of the
Union's organizational campaign at Respondent's
plant in Syracuse, New York. By September 20, the
Union had secured the signatures on authorization
cards of four of the five employees in the unit,
including one employee, Orlando, whose status as a
supervisor is in question and was not passed on by
the Trial Examiner. On that date, the Union
requested Respondent by letter to recognize and
bargain with it as the majority representative of its
route salesmen . On September 23, Respondent's
attorney, Panels, wrote the Union that Respondent
would not recognize it, as Respondent had a
good-faith doubt of the Union's majority. The
Union, however, repeated its demand on September
24. On September 25, Panels visited the Union's
offices and inspected the authorization cards,
apparently questioning only that of Orlando, on the
ground that he was a supervisor. After looking at
the Union's contract, Panels said he would
recommend that Respondent recognize the Union.
Seven days later, apparently on October 2, Panels
informed the Union vice president that Respondent
was unwilling to recognize the Union. However, as
the Trial Examiner found, Respondent apparently in
the interim initiated his campaign of threatening and
interrogating employees and also let Orlando know
that if the Union came in he would replace his route
salesmen with his sons and a mechanic.
Whether Respondent's refusal to recognize or
bargain with the Union was motivated by a
good-faith doubt of the Union's majority is to be
determined by all the relevant circumstances.' It is
obvious to us that in finding that Respondent's
violations were not "widespread," or that there was
a "paucity" of evidence of interference, the Trial
'One eligible employee did not vote.
The Trial Examiner inadvertently computed the time between the
consent agreement on October 7 and the election on October 16 to be 6
days.
'Aaron Brothers Company of Cal4fomia. 158 NLRB 1077.
176 NLRB No. 92
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner overlooked the fact that there were only
three employees on whose support the success or
failure of the Union ' s effort depended , since of the
five employees in the unit , one was unalterably
opposed to the Union and another , Orlando, was
considered by Respondent to be a supervisor.' As to
the other three employees in the unit , it can hardly
be said that there was a "paucity" of evidence of
interference with their rights when all three union
supporters , as the evidence clearly shows, were
coerced , threatened , interrogated, and told that they
were being spied upon.
Moreover , we cannot agree that Respondent did
not engage in a "continued" campaign of threat and
interrogation . The record clearly shows that Chris
Christou , who apparently believed Woosley to be
the instigator of the movement , told Woosley about
a week prior to the election to come to him if he
ever had a problem ; his son James Christou
interrogated and impliedly threatened Woosley a
few days after he had signed a card; and
approximately a week later , another son, Paul
Christou , threatened Woosley and told him that he,
Woosley, and the others, were being spied upon. In
fact , Paul Christou left his customary inside job to
ride with Woosley on his route in order to bring a
more sustained pressure on him.
Nor can we agree with the Trial Examiner that
the relatively short period of time between the
petition, or consent agreement , and the election
"refuted the notion" that Respondent was seeking
time to dissipate the Union 's majority . We can see
no relevant connection between the time available
and the existence of an intent to dissipate a union's
majority . Certainly it is evident that Respondent
took full advantage of the time , as he began his
campaign against the Union almost immediately
after receipt of the Union ' s initial demand. And if
there was only a period of 9 days between the
execution of the consent agreement and the election,
there were only three employees whose support of
the Union had to be undermined.
In view of the foregoing , and on the record as a
whole , we find that , contrary to the Trial Examiner,
the General Counsel has carried his burden of
demonstrating that Respondent 's refusal to bargain
with the Union was not motivated by a good-faith
doubt of the Union 's majority status in an
appropriate unit . We find that Respondent's refusal
to bargain and its insistence upon an election was
made in bad faith and that Respondent 's conduct
rendered the holding of a fair election impossible.
Consequently , we conclude that Respondent thereby
violated Section 8(aX5) and (1) of the Act.'
THE REMEDY
We have found in agreement with the Trial
Examiner that Respondent engaged in conduct
violative of Section 8(axl) of the Act and
accordingly , we adopt his remedial
recommendations in that regard . However, we have
found , contrary to the Trial Examiner, that
Respondent has engaged in certain unfair labor
practices in violation of Section 8(aX5) and (1) of
the Act. Accordingly, we shall issue a bargaining
order to remedy Respondent ' s unlawful conduct in
this regard.
Upon the basis of the foregoing findings of fact
and upon the record as a whole , we make the
following:
CONCLUSIONS OF LAW
We adopt only the Trial Examiner's Conclusions
of Law 1, 2, 3, and 4, and we make the following
additional Conclusions of Law:
5. At all times since September 20, 1968, Dairy &
Bakery Salesmen & Dairy Employees Local Union
316, affiliated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers
of America, has been the exclusive bargaining
representative of all the employees in the following
unit:
All route salesmen of Solvay Baking Company at
its Syracuse , New York, location , excluding all
office clerical employees , production employees,
professional employees , guards and supervisors as
defined in the Act.
6. By refusing to bargain collectively with Dairy
& Bakery Salesmen & Dairy Employees Local
Union 316, affiliated with the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive collective -bargaining representative of its
employees in an appropriate unit composed of "all
route salesmen of Solvay Baking Company at its
Syracuse, New York, location , but excluding all
office clerical employees, production employees,
professional employees, guards and supervisors as
defined in the Act," Respondent has engaged in and
is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(aX5) and
(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
'Although the parties differed on Orlando' s status as a supervisor, they
ultimately agreed that he would not be eligible to vote in the election.
'We believe that the cases of Grafton Boat Co., Inc., 173 NLRB No.
150, and J. C. Penney Company, Inc.. 172 NLRB No. 82, cited by the
Trial Examiner in support of his findings, are factually distinguishable in
that in those cases the units were larger and the unfair labor practices
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
committed did not affect as great a percentage of the unit employees as
here, where practically all of the eligible unit employees were involved.
SOLVAY BAKING COMPANY
Chris Christou d/b/a Solvay Baking Company,
Syracuse, New York, his officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Dairy &
Bakery Salesmen & Dairy Employees Local Union
316, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive collective- bargaining
representative of its employees in an appropriate
unit composed of "all route salesmen of Solvay
Baking Company, at its Syracuse, New York,
location , but excluding all office clerical employees,
production employees , professional employees,
guards and supervisors as defined in the Act."
(b) Threatening employees with discharge or
reprisals if they join or assist a labor organization,
or select a representative for collective bargaining.
(c) Interrogating employees concerning union
membership or activities in a manner interfering
with, restraining , or coercing employees in the
exercise of their rights under the Act.
(d) Creating the impression of surveillance of the
union activities of its employees.
(e) In any other manner interfering with,
restraining , or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, recognize and bargain
collectively with Dairy & Bakery Salesmen & Dairy
Employees Local Union 316, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of its employees in the aforesaid unit with respect to
rates of pay, wages, hours of employment , and other
terms and conditions of employment, and, if an
understanding is reached , embody such
understanding into a signed contract.
(b) Post at its place of business in Syracuse, New
York, copies of the notice attached marked
"Appendix." Copies of said notice , on forms
provided by the Regional Director for Region 3,
shall after being duly signed by the Respondent's
representative , be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the aforesaid Regional Director, in
writing , within 10 days from the date of this Order,
what steps Respondent has taken to comply
'In the event that the Board 's Order is enforced by a decree of a United
States Court of Appeals, the words "a decree of the United States Court
of Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
675
herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed as to any alleged
violations not found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
You have the right under the law to
Organize, or form, join, or help unions
Bargain for your working conditions through a
representative freely chosen by a majority of the route
salesmen in an appropriate unit
Act together for mutual aid or protection of your
working conditions
Refuse to do any or all of these things.
WE WILL on request recognize and bargain with
Dairy & Bakery Salesmen & Dairy Employees Local
Union 316, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive
collective-bargaining representative of our employees in
a unit composed of all route salesmen, but excluding all
office clerical employees, production employees,
professional employees, guards and supervisors as
defined in the aforesaid Act, regarding their rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached embody the same into a signed contract.
WE WILL NOT interfere with, restrain, or coerce you
in your right to join or help Dairy & Bakery Salesmen
& Dairy Employees Local Union 316, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, or in your right to vote
for such labor organization to represent you in dealing
with the company about your pay or other terms and
conditions of your employment, if you want.
Since it has been found that the Company has in the past
interfered with, restrained, and coerced you in the exercise
of your rights under the law, we are required to tell you
that:
WE WILL NOT threaten or warn you that you might
be discharged or that the company will harm you in
any way because you join or help or vote for a labor
organization of your own choice.
WE WILL NOT ask you any questions about your
union membership or activities or the union
membership or activities of anyone else , in order to
interfere with your rights under the law.
WE WILL NOT try to give you the impression that we
are spying on your union activities , or have asked
anyone else to bring us back reports as to your union
membership or activities.
CHRIS CHRISTOU D/B/A
SOLVAY BAKING
COMPANY
(Employer)
Dated By
(Representative ) (Title)
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, Fourth Floor,
The 120 Building , 120 Delaware Avenue , Buffalo, New
York 14202, Telephone 716-842-3112.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Trial Examiner : These matters were
heard before me at Syracuse , New York, on February 5,
1969, upon allegations in the complaint in Case
3-CA-3624, issued on January 8, 1969 (based upon
charges filed by the Charging Party (herein called the
Union) on October 21, 1968, and January 3, 1969). The
complaint alleges that the Respondent violated Section
8(a)(l) of the Act by illegally interrogating employees
about the Union , creating the impression that the
Respondent was keeping the employees ' union activities
under surveillance , threatening employees with reprisals
because of the Union, requesting employees to spy upon
and report on union activities, and promising benefits if
employees refrained from union activities . The complaint
further alleges that Respondent violated Section 8(axl)
and (5) of the Act by refusing to bargain with the Union
upon request from September 20, 1968 , and thereafter (all
dates herein are in 1968 , unless otherwise noted).
Upon a petition by the Union filed on September 23, in
Case 3-RC-4524, an election was held at which the Union
was rejected . Objections were duly filed on grounds
encompassed within the allegations of the complaint in
this matter, which objections have been consolidated with
the complaint for hearing in this matter . Respondent's
answer to the complaint denies the commission of the
alleged unfair labor practices.
The answer admits allegations of the complaint
sufficient to support the assertion of jurisdiction under
current standards of the Board, and to support a finding
that the Union is a labor organization within the meaning
of the Act.
Upon the entire record in this case , and after due
consideration of the briefs filed by the General Counsel
and the Respondent , the Trial Examiner makes the
following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE ALLEGED UNFAIR LABOR PRACTICES
Preliminary
There are some references to a prior unsuccessful
organizational attempt by the Union, at an unspecified
time , which apparently involved an election among
Respondent' s route salesmen . The present effort of the
Union to become the statutory representative of the route
salesmen seems to have begun on September 16, although
there is some indication of a contract between Parry, vice
president of the Union , and John Papazides, one of
Respondent's route salesmen , 2 or 3 months previous. On
September 17, Parry obtained the signatures of three
route salesmen (William Woosley, Anthony Giangiobbe
and Charles Orlando) to cards clearly authorizing the
Union to represent the men for the purposes of collective
bargaining, and agreeing to a checkoff of Union dues and
fees from their pay. Of these three , Respondent claims
that Orlando is a supervisor within the meaning of the
Act, which is contested by the General Counsel and the
Union . Later, Parry obtained the signature of route
salesman John Papazides to similar cards . The fifth route
salesman , Roy Micelli, refused to execute authorizations
for the Union . Respondent does not dispute the validity of
these cards, except that of Orlando.
After receiving signed cards from the four route
salesmen noted above, the Union by letter dated
September 20, advised the Respondent that it represented
a majority of • the route salesmen and requested
recognition of the Union and collective bargaining in the
unit involved . Respondent ' s attorney , Panels, answered by
letter dated September 23, declining to recognize the
Union , on the ground that Respondent "has a good faith
doubt that you represent a majority of the employees in
the appropriate unit ." On September 24, the Union sent
Respondent another letter requesting recognition and
bargaining , and on the following day , Panels visited the
Union's offices . According to Parry, who was the only
witness testifying to the occurrence , Panels looked at the
authorization cards in the Union 's possession , apparently
questioned only that of Orlando, whom Panels said was a
supervisor , and, after looking at the Union ' s contract, said
he would recommend that Respondent recognize the
Union.
The following Wednesday , Panels again met with Parry
and advised that Respondent was unwilling to recognize
the Union on the basis of a card check, and desired an
election conducted by the Board . Panels again raised the
supervisory status of Orlando , and, according to Parry,
"rather than go through the delay of a formal hearing to
determine this, we agreed to an election with him excluded
from the voting unit."
The Union and the Respondent thereafter , on October
7, executed an Agreement for Consent Election in an unit
of "All route salesmen [employed by Respondent at its
Syracuse , New York, plant,] excluding all office clerical
employees , professional employees , guards and supervisors
as defined in the Act," which the parties in this
proceeding agree constitutes an appropriate unit within the
meaning of the Act. The Agreement was thereafter
approved by the acting Regional Director , and a secret
ballot election was conducted by the Board on October 16,
at which the Union was rejected by a vote of two to one,
with one eligible employee not voting. As noted above, the
Union filed timely objections to the election.
Alleged Interference With Employee Rights.
Shortly after receiving the Union 's request for
recognition the Respondent's owner , Chris Christou,
spoke to Orlando about this matter in Christou's office.
Although there are certain significant differences between
the testimony of Christou and Orlando as to this
conversation , there is no necessary conflict between them.
Christou , called as a hostile witness by General Counsel
under Section 43(b) of the Federal Rules of Civil
Procedure , testified:
Q.... do you recall telling Mr . Orlando to find out
who was for the Union or how many of the guys were
for the Union?
A. No. When I got the letter from the Labor Board,
. . . . When I get the paper , I read it and I say to
SOLVAY BAKING COMPANY 677
myself , "What happens now? What ' s going on now?"
So I don ' t say nothing . When Charlie Orlando comes, I
call him in the office and I said, "Charlie ," I says,
"What' s the matter? What's going on here?" I said to
him, "What the drivers want, " I said . "Dq you talk to
them? Ask them do you know ?" "What do you mean,"
he said , "Chris , I don't know nothing ." I said , "What's
the matter? You're my supervisor , you load and unload
them and you don ' t know what the hell is going on?"
And He said to me, "No ." "What kind of supervisor I
got?", I said , " I pay you a guarantee , and anything I
want to know about the drivers not satisfied , why you
no tell me ." He said , "Chris , I don't know nothing."
He say, "I ' m going to let you know Monday ." I says,
"Okay, that ' s it." I don ' t say nothing.
Q. What was it he was to find out by Monday: Who
was for the Union?
A. Yes. I asked him what ' s going on Monday and he
said to me , "Chris, everyone signs ." He said , " I sign
too." . . "How can you do it," I said. He then said,
"Well, I don't know . I get paid something ." He say, "I
signed ." I says, "Good ." I don ' t say nothing.
Orlando' s testimony is to the same effect, except that
he does not mention that there were two conversations,
and he also added that Christou said that if he had to
have the Union , he would put his sons and the mechanic
on the salesmen's routes . This was not denied by Christou,
who has two sons presently workin for Respondent and
another son who previously worked in Respondent's
operation . Orlando denied that Christou asked him to go
and find out "about the other guys," in this conversation.
Route salesman Giangiobbe testified , without
contradiction , that within 2 or 3 days after he signed the
union authorization , Chris Christou spoke to him in
Respondent 's office, asking if he had signed a card, and if
he was going to vote for the Union . Giangiobbe stated
that he told Christou that he had signed a card and would
vote for the Union . Christou stated that if the Union won
the election , he would not be able to afford it. Giangiobbe
also stated , somewhat uncertainly , that he thought that
Christou "did say he might close up ," adding "[t]hat I
can't promise, I don ' t know, but it could have been put in
there accidentally ." Sales Manager James Christou was
present during this conversation.
Route salesman Papazides testified that 2 days after he
signed the Union card , Chris Christou asked him if he had
signed , to which Papazides admitted that he had done so.
Christou then asked Papazides "about the other guys,"
but, according to the latter , "I tell him I don't know."
There was no denial of Papazides ' testimony.
Route salesman Woosley stated that a few days after he
had signed a union card , Sales Manager James Christou,
an admitted supervisor, asked if Woosley was a Union
member, to which Woosley answered that he had signed a
card . When James Christou persisted , Woosley gave a
similar answer . Then James Christou advised Woosley
that he should recall what Christou had told him when
Woosley had first come to the Respondent, which
apparently occurred sometime after November 1967.
Christou did not elaborate on this statement . Woosley
later recalled that when he was being trained for the job
by James Christou , the latter had told him about someone
whom Woosley vaguely recalled as a relative of Christou
who had been released because he favored the Union.
James Christou testified that during the period referred
to by Woosley, Christou had questioned whether Woosley
was or had been a union member , to which Woosley
replied that a member of his family was a union man, "or
something ." Woosley, however, according to Christou,
indicated that he wasn ' t too well pleased with unions,
himself. Christou stated that he advised Woosley that
Respondent was nonunion and did not have union
benefits , indicating that if Woosley didn ' t want to work
under these conditions , he should not come to work for
Respondent . Christou asserted , in answer to a specific
question, that " [he] didn 't make any threats or
intimidations" to Woosley.
Within a week and a half after Woosley had signed a
union card , and following his conversation with James
Christou, Woosley testified he had a conversation with
Paul Christou , another son of Respondent 's owner , who, it
is found , is also a supervisor within the meaning of the
Act. Paul Christou ' s duties normally keep him within
Respondent's bakery, and he had never previously, nor
has he since ridden with Woosley on the latter ' s route. On
this occasion , however, Paul Christou took the
opportunity to ride with Woosley. According to Woosley,
much of the conversation centered around his activity with
the Union, Christou stating that "the Union was
Communist inspired and backed by Communists . .
that if the Union was accepted , how could I .... face the
family knowing what I have done ." Woosley replied that
this was his constitutional right . Christou said "they were
surprised and shocked when they discovered who was the
original instigator among the drivers, because they had
been so fair to him . . . ," adding that "We know what's
going on, we have somebody in the inside ." Christou told
Woosley that "in the end [Woosley would) be left holding
the bag."
Respondent , in lieu of bringing Paul Christou in to
testify, offered to stipulate that he would deny Woosley's
testimony involving him. General Counsel and the Union
agreed that if Paul Christou were brought in as a witness,
he would deny Woosley's testimony, but did not thereby
stipulate the truth of Christou's testimony, and, in fact,
asserted that Christou's testimony to this effect would not
be credible.
Woosley also adverted to a conversation with Chris
Christou about a week prior to the election, in which
Christou told Woosley that if he ever had a problem,
Christou wished that Woosley would come to him with
the problem.
Orlando's Supervisory Status
Charles Orlando has been employed by Respondent for
10 years . He was originally a route salesman on an
assigned route . The duties of such a salesman , in brief, are
to order the amount of product which he will require the
next day, and upon arrival the next morning, from about
4:30 a.m. on, to load his truck in accordance with a
pattern which will make it convenient for a supervisor to
check the load in the truck in order that the driver can be
charged with the goods which he is taking out. The driver
visits the customers on his assigned route , leaves the
product required by the customer, receives payment or
some other type of accounting for the product left, and at
the end of the day's work, from about 1:30 p.m. on,
comes back to the plant with his receipts and his returns
of product with which he has been charged. At this point,
the route salesman is checked out and goes home. There
are indicated other incidental duties, such as washing the
trucks when they become dirty , turning in names of
prospective new customers, and perhaps other similar
matters . The route salesmen are paid on the basis of a
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
percentage of their gross receipts , and work 6 days a
week.
About May 1967, Respondent lost the services of an
individual who had the title of route supervisor, whose
duties and authority are not detailed in the record. About
this same time , James Christou , Respondent ' s sales
manager , and clearly a supervisor over the route salesmen,
also left to go into the armed forces . Respondent prevailed
upon Orlando to take the job of route supervisor, after
giving him a guaranteed weekly wage which Orlando
stated exceeded to some degree what he had been
previously making . Orlando was taken off his route and
devoted his time exclusively to supervisory duties.
As a route supervisor , Orlando saw to the distribution
of the product in the morning on the loading dock,
checked out the drivers before they left, and checked them
in when they returned . He interviewed applicants for
employment and hired route salesmen . He also rode with
new route salesmen , teaching them their duties, and with
the other route salesmen when necessary . When he was
not engaged in other duties, Orlando would visit
prospective customers and solicit business for the
Respondent . When he was assigned to this position, Chris
Christou told him that he would be in charge of sales, and
responsible for the hire, discipline , and discharge of route
salesmen . Orlando also testified that he had discharged a
route salesman. It was stipulated that between May, 1967,
and November , 1967, Orlando was a supervisor within the
meaning of the Act.
About November 1967, it appears that Respondent's
business became somewhat slow, and Orlando was
assigned to handle a short route , which was vacant, and
later when , in January 1968, the sales route which
Orlando had previously handled became open, Chris
Christou asked Orlando to take that over on a temporary
basis . Christou told Orlando that he would nevertheless
continue to be a supervisor , although Orlando advised him
that because of the size of the route , he wouldn't be able
to check the drivers in and out. About this time , it seems
that James Christou returned to work as sales manager
for the Respondent . Orlando has continued to work full
time on the route.
Since Orlando has gone back on his route, two
employees have been hired as route salesmen . These men
were interviewed, hired and trained by James Christou.
Orlando was not consulted about their hire and played no
part in their employment. He does not ride with the other
drivers or solicit business for the Respondent as he did
prior to going out on the sales route . He continues to
come in about 4:30 a.m. and sees to the distribution of the
product on the loading dock . He checks out two route
salesmen who leave before he does . Orlando loads his own
truck , as the others do, and is checked out by James
Christou if he is there, or checks himself out otherwise.
James Christou checks out the other two salesmen. In the
afternoon , if James Christou is not present , Orlando may
check the route salesmen in who return to the plant while
Orlando is there.
Orlando still retains the title of route supervisor and the
pay status which he received upon promotion to that
position . He considers himself to be "in charge" of the
route salesmen . Thus, when calls come in from route
salesmen in the morning reporting sick, they are directed
to him while he is there . However , it would appear that he
exercises no discretion with respect to those calls. The
men understand that they are to bring their complaints,
such as those about the trucks , the quality or quantity of
the product, or the wrappings, etc., to Orlando, who takes
them to Christou. Similarly, when Christou has problems
with the routes or route salesmen , it appears that he
would be likely to call Orlando in to discuss the matter.
Orlando may adjust complaints , but he stated that these
were so minor that he was unable to give an illustration of
such action at the hearing . When asked for examples of
directions or orders which he might give to the route
salesman, he stated that he might tell a salesman in the
morning to reload his truck , if the truck was improperly
loaded so that it could not be checked out, or that he
might tell a driver to wash his truck , if it was dirty,
which , he stated , the driver "sometimes" did. Orlando
also testified that on occasion he would address sales
meetings of routes drivers, and that he attended
management meetings at which sales problems were
discussed , that he participated in the discussions, but
played no part in making the decisions . He would,
however, carry the decisions back to the men and tries to
see that they are carried out.
Conclusions
1. Orlando's supervisory status
This case raises a number of close, difficult problems,
not the least of which is the issue of Orlando's supervisory
status . On the basis of his actual relationship to the other
route drivers at the time of the election , it is quite difficult
to find that he meets any of the elements set forth in
Section 2(11) of the Act, because his current
responsibilities do not tend to require the "exercise of
independent judgment," but rather indicate he acts as a
channel of communication between management and the
men, administering decisions and routines which have
been established by Respondent ' s management . Moreover,
if both Orlando and James Christou are statutory
supervisors , Respondent would have the improbable ratio
of two supervisors for four rank and file employees.
Further, not only is Orlando presently performing a full
day's work on a route like the other route salesmen, but
the very nature of that work gives him a minumum of
opportunity to be in contact with the other employees or
supervise them . On the other hand there is substantial
evidence that both Respondent and the men consider
Orlando still .to be "in charge" of the route salesmen,
indicating recognition of a residual authority which
Orlando was advised he continues to possess , but has had
little or no opportunity to exercise since January 1968.
Recognition of this status also seems inherent in the
Union' s agreement that Orlando be excluded from the list
of those eligible to vote in the election . On the basis of
these facts, and the entire record, as well -as my
observation of the witnesses , I am inclined to the
conclusion that Orlando is not a mere vehicle of
communication between the men and management,
administering only matters decided by management, but
that his directions and instructions to the men have an
additional significance because of his acknowledged status.
Cf. Ceilheat, Inc., 173 NLRB No. 127, especially the
Trial Examiner's decision in that case.
In the particular circumstances of this case , however,
inasmuch as the Union' s majority status does not depend
on Orlando's card , and since it appears that Christou's
remarks to Orlando did not, in any event, have an impact
on the election , it is not necessary in this case to finally
determine Orlando's status. It seems evident that Orlando
did not repeat his conversation with Christou to the other
SOLVAY BAKING COMPANY 679
men. Although Orlando was a witness for the General
Counsel, no effort was made through him or the other
route salesmen to show that Orlando made known to the
others what Christou told him. Tie General Counsel was
aware of the close supervisory issue involved, and if such
evidence existed, it must be assumed that he would have
produced it. Further, since Orlando was not eligible to
vote in the election, it cannot be said that Christou's
remarks had an impact upon his right to vote.
While Christou's remarks to Orlando would have
constituted illegal interrogation , as well as threats in
violation of the Act if addressed to a rank and file
employee, since it is hereinafter found that Respondent
engaged in other such violations involving other
employees, it becomes unnecessary to determine that
Christou also possibly violated the Act in his conduct
toward Orlando, himself.'
2. Alleged violations of section 8(a)(1)
It is found that James Christou intended to and did
threaten as well as engage in illegal interrogation of
Woosley with respect to his Union activities. Christou
does not deny Woosley's testimony that after questioning
him about the Union, Christou referred him to a previous
conversation, which Christou, himself, indicates had
reference to the Union. Clearly the actions of James
Christou, and those of his father and brother were
designed to defeat the Union, and I am satisfied that
Christou in his conversation with Woosley was engaged in
a subtle tactic designed to threaten Woosley to that end.
Woosley's testimony not only impressed me as being
credible at the time given, but seems the more probable
account on the record as a whole, and it is therefore
credited.
It is further found, in the circumstances of this case,
that Chris Christou's interrogation of Giangiobbe and
Papazides constituted an illegal invasion of their rights
under the Act. In addition to the context in which the
interrogation occurred, it is perfectly apparent that
Christou had no reason to engage in such conduct other
then to interfere with the employees' free exercise of their
rights under the Act. He was not only aware of the
employees' choice from interrogation of Orlando (whether
or not that was violative of the Act), but it is quite clear
that Christou was determined not to recognize the Union
no matter what reply he"received from the employees. On
the other hand, Christou's lack of good faith in the
interrogations is shown by his remarks to Orlando noted
above. Though the employees admitted their Union
participation to the Christous, with some reservations on
the part of Papazides and Orlando, in the circumstances
of the case (including the small number of men involved
and the fact that their activity was known to Orlando), it
would not be unreasonable that they should have
considered it useless to deny the fact, or should have
affirmed what they had done or intended.
However, on this record, it cannot be found, as the
General Counsel urges, that Christou threatened to close
the plant in his conversation with Giangiobbe, for the
latter's testimony was too uncertain on the point. While it
'Alit is alleged in the complaint that Christou requested
"employees" to spy upon and report employee Union activity , apparently
referring to the conversation between Christou and Orlando, this is not
mentioned in the General Counsel's brief and seems to have been
abandoned . In any event , it is found that the evidence does not support this
allegation.
is possible Christou may have made such a statement, the
evidence does not rise above the level of mere ,possibility.
It is equally possible that Giangiobbe was, led to this
impression from Christou's statement that he could not
afford the Union.
It is also clear from Woosley's testimony, which is
credited, that Paul Christou in his conversation with
Woosley sought to and did give the impression that the
Respondent was keeping the employees' union activities
under surveillance, and by advising Woosley that he would
have cause to regret his advocacy of the Union, indicated
Woosley would suffer reprisal for his activities.
No evidence was adduced in support of the allegation in
the complaint that Respondent made promises to the
employees in connection with their union activities.
On the basis of the above findings and analysis, and the
entire record, it is found that the Respondent, by
threatening reprisal and coercively interrogating
employees in connection with their union activities and
creating an impression of surveillance of employee union
activities, violated Section 8(a) (1) of the Act.
3. Alleged violation of Section 8(a)(5)
It is stipulated that the unit in which the election was
conducted in Case 3-RC-4524 is an appropriate unit
within the meaning of the Act. And, as previously noted,
there is no dispute that the Union was in possession of
authorization cards signed by a majority of the employees
in the unit designating it as their collective bargaining
representative at the time it requested the Respondent to
recognize and bargain with it. There is further no doubt
that within a short time after the Union's request for
recognition, and while Respondent continued to refuse to
bargain with the Union, Chris Christou knew that the
Union possessed authorization cards from a majority of
the employees in the unit.
It seems quite clear, however, from the Board's most
recent decisions that mere knowledge that a majority of
employees in the unit have signed cards designating the
Union their representative will not preclude an employer
from insisting that the Union's status be demonstrated in
a Board election, in the absence of "evidence indicating
that the employer has completely rejected the collective
bargaining principle or seeks to gain time within which to
unlawfully undermine the Union and dissipate its
majority," or "has engaged in other conduct which would
prevent the holding of a fair election." See Wilder Mfg.
Co., Inc., 173 NLRB No. 30; Agway Petroleum
Corporation, 170 NLRB No. 95; Diana Shops of
Washington, Inc., 170 NLRB No. 54 (Board found no
violation although Trial Examiner found that
"Respondent had every reason to know that the Union"
possessed cards from a majority in the Union.) Clarks
Stores, 168 NLRB No. 43 (TXD).2
Although evidence that the employer has engaged in
unfair labor practices tending to destroy the union's
majority, and certainly evidence that the employer has
engaged in conduct which tends to make the conduct of a
fair election impossible, constitutes clear proof that the
employer is unworthy of credit when he asserts an alleged
good faith desire to have the Union's majority status
decided in a Board election, the Board has many times
'But compare the opinions of the Court in, among others , N.L.R.B. v.
Sehon Stevenson & Company , Inc.. 386 F .2d 551 (C. A. 4k Retail Clerks
Union. Local No. 1179, etc. (John P. Serpa, Inc.) v. N.L.R.B.. 376 F.2d
186 (C. A. 9), indicating a contrary view.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
emphasized that "this does not mean that any employer
conduct found violative of Section 8(axl) of the Act,
regardless of its nature or gravity , will necessarily support
a refusal-to-bargain finding ." See Aaron Brothers
Company of California, 158 NLRB 1077, 1079. While, of
course , each case must be considered on the basis of its
own particular facts, the Trial Examiner has noted, for
example , in two recent cases, that the Board in one case
reversed a finding of refusal to bargain , although the
employer there had immediately upon learning of a union
meeting , made threats to fire employees , engaged in
coercive interrogation , created an impression of
surveillance , as well as promised and granted benefits
(Grafton Boat Co. Inc. 173 NLRB No. 50), and in
another, confirmed a dismissal of a refusal to bargain
allegation although there was evidence of an instance of
coercive interrogation and three instances in which
employees were told that they were courting discharge by
wearing union buttons . J. C. Penny Company, Inc.. 172
NLRB No. 82.
The unfair labor practices which have been found
herein are not so flagrant , widespread or continued that it
can be said that they evidence a fixed rejection of the
policies of the Act. The paucity of the evidence of
interference with the employees ' right and the lack of
significant delay in agreeing to a secret ballot election (14
days from petition for election to consent agreement, and
6 days from agreement to election ) fairly refute any
notion that Respondent sought time to dissipate the
Union ' s majority by illegal means.
On the basis of the above analysis and the record as a
whole it is found that the Respondent did not violate
Section 8 (a)(5) and (1) by its refusal to bargain with the
Union , and it will be recommended that this allegation be
dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Sections 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All route salesmen employed by Respondent at its
Syracuse , New York, plant, excluding all office clerical
employees , professional employees , guards and supervisors
as defined in the Act constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(axl) of the Act, which unfair labor practices affect
commerce within the meaning of Sections 2(6) and (7) of
the Act.
5. The Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
6. The Respondent has engaged in conduct interfering
with , restraining and coercing employees in their exercise
of a free choice in an election conducted by the Board on
October 16, 1968.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, it will be recommended that the Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
[Recommended Order omitted from publication.]
4. Objections to the election
While it has been found that the Respondent's unfair
labor practices were not of such magnitude as to make a
fair election impossible in the unit , because of the small
number of employees in the unit and the closeness of the
vote, the Respondent' s conduct unquestionably had a
substantial impact on the election . Accordingly, it will be
recommended that the election of October 16, 1968, be set
aside , and a new election be conducted at a time to be
determined by the Regional Director.
ORDER SEVERING AND REMANDING CASE
3-RC-4524
Pursuant to the terms of the Order Consolidating Cases
issued by the Acting Regional Director of Region 3 in
Case 3-RC-4524 , it is ordered that Case 3-RC-4524 be,
and it hereby is, severed and remanded to the Regional
Director for Region 3 for further action in accordance
with Section 102 . 62(a) of the Board ' s Rules and
Regulations.