Teledyne Dental Products Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 435 (N.L.R.B. 1974)

TELEDYNE DENTAL PRODUCES CORP.
Teledyne Dental Products Corp . and Electrical, Pro-
duction, and ' Industrial Workers Union, Local 118,
International Union of Dolls, Toys, Playth&gs,
Novelties and Allied Products of United States and
Canada, AFL-CIO. Case 29-CA-3379
April 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 26, 1973, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
filed cross-exceptions with supporting brief, and the
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the Administrative
Law Judge's rulings, findings,' and conclusions to
the extent consistent herewith,2 and to adopt his
recommended Order, as modified herein.
We agree with the Administrative Law Judge in his
conclusion that Respondent violated Section 8(a)(1)
through its plant manager's solicitation of grievances
with promises of rectification. After initially refusing
to meet and bargain with the Union, the plant
manager, Opotow, had two meetings with the
employees which can only be viewed as unsuccessful
attempts to discern the causes for the employees'
prounion sentiment. After the second attempt proved
fruitless, Opotow had his secretary try to find out
why the employees wanted a union. She succeeded in
having the employees list their demands for presenta-
tion to Opotow. She carved this list into Opotow's
office and later returned to inform the employees
that the demands had been "okayed," and for them
to sign the list. The Administrative Law Judge found
and we agree that Opotow's secretary was acting as
an agent of the Respondent in performing these
activities. The following day the shop supervisor also
informed the employees that they had "got what
[they] want" and implemented one of their demands.
Shortly thereafter the employees told the union
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 363 (C A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
210 NLRB No. 64
435
representative who had been in charge of their
organization that they were no longer interested in
the Union because they had signed an agreement
with the employer and had "got what [they] wanted."
The Administrative Law Judge found this to be a
clear example of solicitation of grievances with
promise of satisfaction in violation of the Act and we
agree.
In passing upon the complaint' s 8(a)(5) refusal-to-
recognize and bargain allegation, the Administrative
Law Judge concluded that a bargaining order would
not be appropriate because, in his view , the Respon-
dent's unlawful conduct had only a minimal impact
on the election machinery and did not make "the
holding of a fair election impossible or unlikely." He
further felt that Respondent's conduct would "re-
bound to the advantage of the Union" and that the
nonfulfillment of promises was not "calculated to
win friends and influence voters." We disagree.3
While it is true that the employees would wonder,
and in fact, have questioned Respondent's failure to
implement, to date, the balance of its agreement, it is
not unlikely that, in the circumstances presented
here, the employees could view the Union as being
responsible for Respondent's failure to deliver as
promised. Indeed, there is some testimony indicating
that the onus for this may already have been placed
on the Union. Thus, employee Clarence White
testified that he spoke to Ruth Rothman, an agent of
the Respondent, concerning the fact that the employ-
ees had not received the promised wage increase.
According to White, Rothman indicated that the
Union had something to do with the delay and then
added, but "its not over yet." Certainly, the Respon-
dent has already indicated its willingness to comply
with the employees' demands by the implementation
of the coffeebreak policy and, at the same time, has
given the employees reason to believe that it is
equally anxious to satisfy their other demands. In
essence, we are presented with a situation wherein
the Respondent has deliberately embarked upon a
course of action designed to convince the employees
that their demands will be met through direct dealing
with Respondent and that union representation
could in no way be advantageous to them. Obviously
such conduct must, of necessity, have a strong
coercive effect on the employees' freedom of choice,
serving as it does to eliminate , by unlawful means
and tactics, the very reason for a union' s existence.
We can conceive of no more pernicious conduct than
2 Respondent's request for oral argument is hereby denied as the record,
exceptions , and briefs adequately present the issues and positions of the
parties
3 Chairman Miller does not join his colleagues in their decision to issue a
bargaining order. He would adopt in their entirety the findings , conclusions,
and recommended order of the Administrative Law Judge
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that which is calculated to undermine the Union and
dissipate its majority while refusing to bargain.4
Neither is there any conduct which could constitute a
greater impairment of employees' basic Section 7
rights under our Act, especially since such conduct
by its very nature has a long-lasting, if not perma-
nent , effect on the employees ' freedom of choice in
selecting or rejecting a bargaining representative.
Accordingly, we find, contrary to the Administrative
Law Judge , that the issuance of a bargaining order
would be both a necessary and proper remedy for the
unlawful conduct found herein.
Finally, the Respondent argues that the authoriza-
tion cards are not valid in that the union representa-
tive secured the employees ' signatures on the basis
that they would only be used to secure an election
and for no other purpose. The Administrative Law
Judge did not make a determination on the validity
of the cards because it was unnecessary for the
purposes of his decision. However, in a footnote he
did allude to some evidence which suggested that
there had been material misrepresentations as to the
purpose of the cards while they were being solicited.
We have reviewed the evidence and find no justifica-
tion for such a conclusion.
In Levi Strauss & Co.,S we stated at footnote 7:
The Board looks to substance rather than to form.
It is not the use or nonuse of certain key or
"magic" words that is controlling, but whether or
not the totality of circumstances surrounding the
card solicitation is such as to add up to an
assurance to the card signer that his card will be
used for no purpose other than to help get an
election.
We are satisfied that no such assurances were made
to the employees. While the testimony of the union
organizer who spoke with the employees at the time
that they signed the cards is somewhat confused,
there is no indication of conduct which could be said
to have misled employees as to the purpose of the
cards. Further, it is evident from the testimony of the
employees that an election was not stressed as the
sole purpose for signing the cards. We therefore
conclude that the cards. signed by the employees are
valid and constitute a clear expression of their desire
to have the Union serve as their representative, and
that, at the time the Union demanded recognition
and bargaining, it was the designated representative
of a majority of the unit employees.
In view of the foregoing and on the record as a
whole, we find that by refusing to recognize and
bargain with the Union the Respondent violated
Section 8(a)(5) and (1) of the Act, and that the
policies of the Act will be effectuated by the
imposition of a bargaining order as a remedy for
such conduct.
THE REMEDY
We have found in agreement with the Administra-
tive Law Judge that the Respondent engaged in
conduct violative of Section 8(a)(1) of the Act and,
accordingly, we adopt his remedial recommendations
in that regard. However, we have found, contrary to
the Administrative Law Judge, that the Respondent
has engaged in certain unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act. We
therefore order that the Respondent cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact
and upon the record as a whole, we make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(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 production and maintenance employees
including shipping and receiving employees of
Teledyne Dental Products Corp., employed at its
plant, exclusive of office clerical employees, profes-
sional employees , guards and all supervisors as
defined in the National Labor Relations Act, as
amended, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Respondent has violated Section 8(a)(1) of the
Act by soliciting the employees' grievances underly-
ing their union activity, promising to redress such
grievances, and granting a coffeebreak.
5. By refusing to meet and bargain collectively
with Electrical, Production and Industrial Workers
Union, Local 118, International Union of Dolls,
Toys, Playthings, Novelties and Allied Products of
United States and Canada, AFL-CIO, as the
exclusive collective-bargaining representative of its
employees in the appropriate unit described above.
with respect to rates of pay, wages, hours of
employment and other terms and conditions of
employment, Respondent has engaged and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(5) of the Act, and has thus interfered
with, restrained, and coerced employees in the
4 Texaco, Inc., 178 NLRB 434 (1969).
5 172 NLRB 732 (1968).
TELEDYNE DENTAL PRODUCTS CORP.
exercise of their rights guaranteed by Section 7 of the
Act, and has thus engaged and is engaging in unfair
labor practices within the meaning of Section 8(a)(1)
of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
recommended Order of the Administrative Law
Judge, as herein modified, and orders that Respon-
dent, Teledyne Dental Products Corp., Brooklyn,
New York, its officers, agents, successors, and
assigns , shall take the action set forth in the
Administrative Law Judge's recommended Order, as
so modified:
1. Insert the following as paragraph 1(a) of the
Administrative Law Judge's recommended Order,
relettering the remaining paragraphs accordingly:
"(a) Refusing to bargain collectively with Electri-
cal, Production and Industrial Workers Union, Local
118, International Union of Dolls, Toys, Playthings,
Novelties and Allied Products of United States and
Canada, AFL-CIO, as the exclusive collective-bar-
gaining representative of its employees in an appro-
priate unit composed of `all production and mainte-
nance employees including shipping and receiving
employees of Respondent, employed at its plant,
exclusive of office clerical employees, professional
employees, guards, and all supervisors as defined in
Section 2(11) of the Act.' "
2. Insert the following as paragraph 2(a) of the
Administrative Law Judge's recommended Order,
relettering the remaining paragraphs accordingly:
"(a) Upon request, recognize and bargain collec-
tively with Electrical, Production and Industrial
Workers Union, Local 118, International Union of
Dolls, Toys, Playthings, Novelties and Allied Prod-
ucts of United States and Canada, AFL-CIO, as the
exclusive bargaining representative of its employees
in the aforesaid appropriate unit with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed contract."
3. Delete the last paragraph of the Administrative
Law Judge's recommended Order which begins "It is
further ordered ...."
4. Substitute the attached notice for that of the
Administrative Law Judge's.
APPENDIX
437
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT solicit grievances from our
employees to discourage their interest in Electri-
cal, Production and Industrial Workers Union,
Local 118, International Union of Dolls, Toys,
Playthings, Novelties and Allied Products of
United States and Canada, AFL-CIO, or any
other labor organization.
WE WILL NOT promise wage increases, paid
holidays, work breaks, or any other benefit to our
employees to undermine their support for the
above-named Union, or any other labor organiza-
tion.
WE WILL NOT grant work breaks or any other
benefit to our employees to undermine their
support for the above-named Union, or any other
labor organization.
WE WILL NOT in any related manner interfere
with , restrain , or coerce our employees in the
exercise of their rights to engage in organizational
activity or collective bargaining, or to refrain
from such activities.
WE WILL, upon request, recognize and bargain
with Electrical, Production and Industrial Work-
ers Union, Local 118, International Union of
Dolls, Toys, Playthings, Novelties and Allied
Products of United States and Canada,AFL-CIO,
as the exclusive collective-bargaining repre-
sentative of our employees in the appropriate unit
composed of all production and maintenance
employees including shipping and receiving em-
ployees of Teledyne Dental Products Corp.,
employed at its Brooklyn, New York, operation,
exclusive of office clerical employees , professional
employees , guards, and all 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 understand-
ing is reached, embody the same in a signed
contract.
TELEDYNE DENTAL
PRODUCTS CORP.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 16 Court Street, Fourth Floor,
Brooklyn, New York 11241, Telephone
212-596-3535.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was tried before me on August 13, 1973,1 at Brooklyn,
New York.
The charge was filed May 3 by Electrical, Production
and Industrial Workers Union, Local 118, International
Union of Dolls, Toys, Playthings, Novelties and Allied
Products of United States and Canada, AFL-CIO (herein
called the Union), and was served on Respondent the same
day. The complaint, issued June 20, alleges in substance
that Respondent violated Section 8(a)(l) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq. ), herein called the Act, by interrogation, promises and
grants of benefit; and violated Section 8(a)(5) by refusing
to recognize and bargain with the Union and dealing
directly with its employees.
Upon the entire record,2 including my observation of the
witnesses , and after due consideration of the briefs filed on
behalf of General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I. RESPONDENT 'S BUSINESS
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Organization of the employees; request to
bargain and refusal
On April 5, Clarence White, a machine operator who has
worked for Respondent for about 8 years, told John
Acevedo, an organizer for the Union, that Respondent's
production and maintenance employees would like to have
a union represent them. The conversation occurred during
Acevedo's visit to H & S Tools Corporation in Brooklyn
whose employees are represented by the Union and where
White also works at night. In response to White's request,
Acevedo gave White membership application and authori-
zation cards for distribution to Respondent's employees
and set up an appointment to meet with them at 4:30 the
next afternoon in front of Respondent's plant. White did
meet with Acevedo at that time along with three other
employees, Albert Thompson, Cephas Roberts, and David
Washington. The fifth member of the stipulated bargaining
unit,3 Tony Flores, indicated he did not want the Union
and left. The others all filled out and signed the cards and
returned them to Acevedo .4
The following Monday, April 9, Acevedo delivered the
cards to the secretary-treasurer of the Union, George
Goldman, who telegraphed Respondent the next morning,
advising of the card signing and requesting a meeting at a
mutually convenient date for the purpose of negotiating a
collective-bargaining agreement. On April 12 Goldman
sent a letter to Respondent stating it had received no
response and quoting the telegram. On April 13, Ruth
Rothman, secretary to Harold Opotow, Respondent's plant
manager, telephoned Goldman to say that Opotow was out
of town and would contact the Union upon his return the
following week. On April 20, Opotow wrote to Goldman
that
The complaint alleges, the answer admits, and I find that
Respondent is a Delaware corporation, with headquarters
in Chicago, maintaining an office and place of business at
933 Stanley Avenue, Brooklyn, New York, where it is
engaged in the manufacture, sale, and distribution of
dental materials and related products; that during the year
immediately preceding the complaint over $50,000 worth
of its products were shipped directly to States outside of
New York; and that Respondent at all material times has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
... we have a good faith doubt that you represent a
majority of our employees and as a result we are unable
to comply with your request.
However, should you be designated by our employees
as their collective bargaining agent at an election
properly held under the auspices of the National Labor
Relations Board, the appropriate Company representa-
tive will, of course, be available.
2. Union's additional contacts with the
employees; Respondent's counterefforts
Meanwhile, on April 13, Goldman and Acevedo met at a
restaurant with the employees to ascertain their desires for
purposes of the negotiations. These amounted to a $6
weekly raise every 6 months, two coffeebreaks a day, and
an extra holiday, Good Friday.5
A few days later, shortly after April 16, Opotow, having
1 All dates are in 1973. office clerical employees , professional employees , guards, and all supervi-
2 The transcript of testimony was corrected in the interest of clarifying sors as defined in Sec. 2 ( 11) of the Act.
the record . 4 White neglected to note the date and sex on his card , and Acevedo
3 All production and maintenance employees including shipping and repaired these omissions in White's presence
receiving employees of Respondent , employed at its plant, exclusive of 5 Good Friday this year came on April 20.
TELEDYNE DENTAL PRODUCTS CORP.
learned of the union activity, admittedly "called the men
together before work to ask them what prompted them to
go into this, to go into the union." According to Opotow,
he received "no specific answers." However, the combined
credible testimony indicates that Roberts responded wi4i,
"Why not?" followed by either his or Washington's
assertion that they would get more benefits through a
union , to which Opotow replied by noting benefits they
were already receiving and adding that his door was always
open for the discussion of any problems they might have.
After work on the afternoon of April 23, Acevedo met
again with the men and asked if they wanted to go on
strike . They answered affirmatively. But the following
morning they decided not to strike at that time because
Opotow, the only one who could grant their demands, was
absent. Opotow appeared later that day, however, and
called another meeting of the employees. He told them he
was glad they had not struck and again admittedly asked
"if there was anything special, any special reason for their
activity." No one answered, and Opotow reminded them
that his office was always open so they could talk with him
"should they have problems or should there be anything
that can be changed."
Shortly after the men returned to work, Mrs. Rothman
entered the powder room where they were working and,
according to White, asked him to list on a slip of paper,
which she handed him, the benefits that the men wanted
and bring it to Opotow. White thereupon consulted with
the men and filled out the papers He then took it to the
office and headed for Opotow's room but Rothman called
him over to her desk and had him read off what he had
written which she typed on another paper. She then took
the papers into Opotow's room, saying they had to get
approval from headquarters in Chicago. White returned to
the powder room, and a few minutes later Rothman
reappeared , said "they okayed the paper," and gave White
his handwritten slip and asked him to have the men sign it.
He thereupon obtained Roberts' signature and signed it
himself .? He then took it back to the office and returned it
to Rothman.
Rothman's account of the episode was as follows: She
had learned that a plan to strike had been canceled, and,
finding herself in the powder room in the course of one of
her constant regular trips through the factory 8 and in view
of her friendly relationship with the men,9 she asked White
what the problem was and whether there was anything she
could do. Since his reply was "very unclear," she suggested
he speak to the men and write down exactly what was
bothering them.10 She testified that Opotow had not told
her to do this but that she acted entirely "on [her] own,"
although admittedly it was not part of her duties to let
9 Although White's testimony, like that of Roberts and Washington
(Thompson had apparently quit Respondent 's employ by this time),
indicates that the benefits so listed included a $6 weekly raise and two
coffeebreaks a day, the list itself states instead a 6-cent-an -hour raise and
only a morning coffeebreak . These discrepancies , in my view , do not affect
the outcome of the case.
7 Washington chose not to sign it because , in his words, "it didn't look
official."
9 The powder room has but one entrance and cannot be traversed
Rothman could not recall any particular reason for her presence there.
White testified she came "especially to [him] at that time.
9 They come to her with personal problems concerning which she gives
439
Opotow know what was bothering the men. She then took
the paper that White gave her and showed it to Opotow.ii
On direct examination she stated that Opotow "didn't say
anything about it" on seeing the paper but "just received
it," and that she did not tell the men whether or not their
demands would be granted. On cross, she testified:
Q. After you gave the paper that Clarence White
had drawn up to Mr. Opotow what happened to the
paper?
A. He gave it back to me.
Q. Mr. Opotow?
A. Yes.
Q. What did he say if anything?
A. He couldn't do anything about it.
JUDGE HERMAN: He told you that?
THE WITNESS: No, he didn't do anything about it.
He just gave it back to me at that time.
JUDGE HERMAN: What did you mean "couldn't do
anything about it"?
THE WITNESS: Just looked at it and gave it back to
me.
JUDGE HERMAN: What did you mean by "couldn't"?
THE WITNESS: I assume that he couldn't do anything
about it.
She then put the paper into her file tray where it remained
until the day of the instant hearing, giving White a copy at
his request in the interim.12
Opotow's testimony as to this event on direct examina-
tion was that Rothman brought the list in and said she
thought he would be interested in seeing it; that he looked
at it but "had no interest in it at the time" but that he did
discuss it with his supervisor in Chicago who told him
"there was absolutely nothing to do about it at this time";
and that he did not say anything to Rothman as to whether
he approved or disapproved of the requests. On cross, he
testified that after reading the demands he told Rothman
"there was nothing that [he] could do about this," and that
he gave the list back to her. He also testified, however, that
in his discussion with Chicago ("probably the same day")
he "read . . . off" the demands, and the following colloquy
ensued:
Q. You said that you read them off. Did you read
them off?
A. I may not have read them off. I might have just
related them.
Q. You said you read them off. Did you have a
copy of the demands in your hand at that time when
you read them off?
A. It is possible.
sympathy, advice, or other aid In addition to her purely secretarial duties,
she processes orders , makes out shipping papers, occasionally contacting
Chicago in connection with shipping problems , sends out purchase orders,
and does the billing
10 She testified on cross that she could "usually understand" what the
men say to her
u Her direct examination failed to mention her asking the men to sign
the paper On cross , she acknowledged making that request because the
signatures would make her "more sure" that these were the things the men
"were really . concerned about."
12 She denied saying anything to White about having to clear the matter
with Chicago
440
A. No. After I saw them I no longer requested
them.
Q. But you read them off to Chicago?
A. It is possible.
The next day the foreman told the men they had "got
what [they] want" and to start taking a regular 10-minute
break,13 and within the next few days the men told
Goldman that they "didn't want the union any more,"
saying they had signed an agreement with the employer
and "got what [they ] wanted." 14
But when they did not receive the raise they had
demanded and mentioned it to Rothman she said, as White
testified, "it's not over yet." The raise was not given,
however.15
B. Concluding Findings
1. 8(axl) conduct
As appears above, upon learning of the employees'
interest in the Union, Manager Opotow convoked the men
for the express purpose of ascertaining "what prompted
them to go into this, to go into this union ." Although he
received no specific answer at that time he was informed
that the men anticipated improved working conditions
generally through the Union. In response he indicated the
benefits they were already receiving and suggested contin-
ued improvements through his "open door" policy.
A few days later, immediately after being informed that
the men had refrained from a contemplated strike , he again
called them together and asked if there were "special
reasons" underlying their union activity. Receiving no
more enlightenment than on the first occasion, he again
reminded them of his open door for the discussion of
"problems or should there be anything that can be
changed."
Almost immediately thereafter the men were visited,
while working in the powder room, by Mrs. Rothman who
handed White a slip of paper and asked him to list the
items the men wanted and to bring it to Opotow.16 When
White brought the list to the office Rothman intercepted
him and took the list into Opotow's room herself. I credit
White's statement that Rothman told him at the time that
it was necessary to get approval from company headquar-
ters in Chicago. Again, I rely not only on my overall
satisfaction with White's credibility in conflicts with
13 Prior to this, according to the men, they would occasionally "slip out"
for coffee or the like or be allowed to do so by the foreman as work
permitted . The foreman was not called to testify . Opotow testified:
Well, the men always had freedom to have coffee or milk or soda or
whatever at anytime
In fact, I frequently would ask someone to go out and get something
for myself, and tell them if there is anything they like to get it too.
This was a policy we had . It was never a formal policy , but there
was no restriction.
He added that the regularization of the break was instituted for "efficiency
of operation" and was not directed against the Union.
14 Although White placed this at 'Is ]bout the 23rd of April," it occurred
after the men were given the coffee break, which came on the 25th.
15 The holiday , Good Friday, had already passed.
16 1 discredit Rothman's testimony that her presence in the powder room
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Did you ask Mrs . Rothman for the demands? Rothman but also on the fact that Opotow did discuss the
situation with his superiors in Chicago that day. I similarly
credit White's testimony that Rothman returned to the
powder room after bringing the paper to Opotow and
reported that the demands had been approved . It is hardly
likely that anything less than such an indication would
have produced the men's defection from the Union which
they announced to Goldman within the next few days.
Moreover, such a statement from Rothman would have
been quite consistent with the foreman's statement the
following day that the men had "got what [they] want,"
accompanied by the actual grant of the coffeebreak.17
Opotow's explanation that the coffeebreak was merely
the regularization of a prior practice does not ring true. At
most , as he testified, the prior practice was for one man to
go out and get drinks for the others , not for the men as a
group to take a break . A measure of the validity of
Opotow's explanation appears in his hyperbolic statement
that Respondent had been allowing breaks "at any time
... [without] restriction." No less flimsy , in the entire
congeries of events, is Opotow's assertion that the change
was instituted not to discourage the men 's interest in the
Union but for "efficiency of operation," suddenly, after 8
years.18
In sum, the record reveals Opotow's repeated efforts to
ascertain the specific reasons for the employees' union
leanings by soliciting those reasons from the employees.
Such solicitation of itself, on the part of "an employer who
has not previously had a practice of soliciting employee
grievances or complaints," carries with it a "compelling
inference" of a promise to rectify the cause of the
dissatisfaction. Reliance Electric Company, 191 NLRB 44,
enfd. 457 F.2d 503 (C.A. 6, 1972); cf. Associated Mills, Inc.,
190 NLRB 113. This inference derives added strength
where, as here, the employer also invites the employees to
come to him "should there be anything that can be
changed."19
Here, moreover, it is unnecessary to rely on the inference
alone in view of the foreman's announcement of the
coffeebreak with the statement that the men had "got what
[they] want" the very day following receipt of the
employees' demands.
Hence , whether or not Rothman's activities are attributa-
ble to Respondent , its other conduct suffices to establish a
purpose to defeat the Union's organizational campaign by
soliciting the employee's grievances , promising to correct
them, and actually redressing one, the coffeebreak, all in
at that time was routine . She was unable to recall any specific reason for
being there and she could not have been en route to any other part of the
plant because the powder room had only one door . More credible was
White's testimony that she came "especially to [him r' since the proximity of
this event to Opotow's second attempt to ferret out the employee's aims
points to a continuation of Opotow 's effort. I was not favorably impressed
generally with Rothman's manner on the stand and, as noted below,
observed other objective signs of lack of veracity.
17 The testimony as to the foreman's statement was undemed, the
foreman not having been called to testify . Cf. K i M Machine Company,
Inc., 162 NLRB 83,96.
is When asked , near the conclusion of his testimony, why it took 8 years
so to improve efficiency , Opotow's answer was, "I have no answer to that."
19 In the past, Opotow had met with the employees "on occasion" to
"talk about the business" or "discuss the problems that may be related to
the Company ." But there was no evidence of such meetings to consider
redressing grievances or to "change" working conditions.
TELEDYNE DENTAL PRODUCTS CORP. 441
violation of Section 8(axl). However , I find that Respon-
dent was responsible for Rothman's conduct in addition,
and that such conduct, in conjunction with Opotow's,
constitutes further evidence of the violations found above.
As already indicated (fn. 16, supra ), Rothman's initial
involvement followed so closely upon Opotow's second
futile attempt to ascertain the employees' aims as to
suggest a third attempt by means of capitalizing on
Rothman's personal relationship with the men. The
surrounding circumstances tend to confirm this and, at the
very least, Opotow's conduct in this connection provides
ample basis for the employees to have regarded Rothman
as Respondent's agent in this affair.
Notwithstanding whatever personal relationship existed
between her and the men and despite her nonsupervisory
status , the fact is that Rothman occupied a position of
confidentiality in the front office and that her duties
included the transmission of messages to the men from
time to time. Furthermore, her intercession in conveying
the men's demands to Opotow certainly gave them reason
to believe that she was acting for management in this
regard,20 and since Opotow adopted her conduct to the
extent of receiving the demands, and discussing them with
Chicago, and took no steps to disabuse the employees of
the impression that Rothman's actions were on manage-
ment's behalf, Respondent must be deemed responsible
therefor. Cf. Tred-Air of California, Inc., 193 NLRB 672,
673; see also Sky Wolf Sales d/b/a Pacific Industries of San
Jose, 189 NLRB 933, 939.
The self-serving denials by Opotow and Rothman of all
misconduct related to Rothman's activity are discredited
because of the numerous contradictions and inconsisten-
cies that mark their testimony as well as the virtually
inherently incredible nature of some of the testimony 21
Thus, Rothman testified on direct examination that when
she showed Opotow the paper containing the demands he
"didn't say anything about it" but "just received it." On
cross, in response to the question of what Opotow had said,
she testified, "He couldn't do anything about it," but when
asked again whether he had told her that, she responded in
the negative, adding that "he didn't do anything about it"
but "just gave it back to [her]," and she "assumed that he
couldn't do anything about it." Opotow's direct testimony,
like Rothman's, was that he did not comment on the
demands when Rothman presented them to him. But he
testified on cross, contrary to Rothman's testimony, that he
told her "there was nothing that [he] could do about this."
His direct testimony also paralleled Rothman's in respect
to his returning the list to her after reading it. On cross,
however, he testified that he "read ... off" the demands
to his Chicago superiors, and, when pressed as to the
inconsistency, qualified the statement by saying he "may
not have read them off" but "might have just related
them," but that it "[was] possible" that he did read them
20 There was neither evidence nor a contention that Rothman had ever
previously undertaken , in the course of her fnendly courtesies, to correct
any complaints concerning working conditions.
21 Illustrative of the latter was the explanation for Rothman 's retention
of the signed demands while honoring White 's request for a copy , to wit,
that she could just as easily have kept the copy for herself, that she
"automatically" keeps the original of a paper in the files and dispenses
copies. But this fails to explain at all why she found it necessary to keep any
off. And of particular significance underlying this entire
phase of the case was the extent to which his conversation
with Chicago belied his initial testimony that he "had no
interest" in the demands when he received them from
Rothman.
2. 8(aX5) conduct
Even assuming the Union possessed a majority of valid
cards at the time of the bargaining demand 22 current
Board doctrine precludes the finding of a violation in
Respondent's refusal of recognition unless its conduct
rendered the holding of a fair election impossible or
unlikely . Green Briar Nursing Home, Inc., 201 NLRB 503;
R & M Electric Supply Co., 200 NLRB No. 59 . I can make
no such finding on the facts of this case . The sole benefit
actually conferred upon the employees here was the
coffeebreak, and I think the failure to grant the wage raise
and the indication of a similar fate in respect to the holiday
are more likely to redound to the advantage of the Union
than of Respondent. The nonfulfillment of promises is not
calculated to win friends and influence voters .23 Hence I
regard Respondent's 8(axl) conduct as having at most a
"minimal impact on the election machinery ." N.LRB. v.
Gissel Packing Co., 395 U.S. 575, 615 (1%9).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. Respondent has violated Section 8(a)(l) of the Act
by soliciting the employees' grievances underlying their
union activity, promising to redress such grievances, and
granting a coffeebreak.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act by its refusal to
recognize the Union without an election.
REMEDY
In order to remedy the unfair labor practices found
herein my recommended Order will require Respondent to
cease and desist therefrom and from infringing upon the
Section 7 rights of its employees in any related manner.
Moreover, in order to effectuate the policies of the Act, my
recommended Order will require Respondent to post the
usual notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
record whatever of what she and Respondent urged was a purely gratuitous
act on her part undertaken only as a fnendly gesture of a personal
character.
22 Although the evidence suggests the possibility of material misrepre-
sentations as to purpose in the solicitation of the cards , no such issue is
tendered by Respondent's brief.
23 The employees' cooperation in the prosecution of the instant can
tends to support this view.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 24
Respondent, Teledyne Dental Products Corp., its offi-
cers , agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Soliciting grievances from its employees to discourage
interest in Electrical, Production and Industrial Workers
Union, Local 118, International Union of Dolls, Toys,
Playthings, Novelties and Allied Products of United States
and Canada, AFL-CIO, or any other labor organization.
(b) Promising wage increases, paid holidays, workbreaks,
or any other benefit to its employees to undermine their
support for the above-named Union or any other labor
organization.
(c) Granting workbreaks or any other benefit to its
employees to undermine their support for the above-
named Union or any other labor organization.
(d) In any related manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed by Section 7 of the National Labor Relations
Act.
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in Brooklyn , New York,
copies of the attached notice marked "Appendix." 25
Copies of said notice, on forms provided by the Regional
Director of Region 29, after being duly signed by
Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter , in conspicu-
ous places , including all places where notices to employees
are customarily posted . Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director , in writing, within 20
days from the date of this Order , what steps Respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
25 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."