Travelers Maintenance, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1976

226 N.L.R.B. 945 (N.L.R.B. 1976)

TRAVELERS MAINTENANCE
Travelers Maintenance, Inc. and Local 32B, Service
Employees International Union and Local 690,
Amalgamated Workers Union of America . Case 2-
CA-13961
November 16, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On June 22, 1976, Administrative Law Judge Her-
zel H. E. Plaine issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.' The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Upon the invalidation of four of the six authoriza-
tion cards submitted by Local 690 to Respondent,
the Administrative Law Judge found that the Union
did not represent a majority of Respondent' s six em-
ployees when Respondent voluntarily recognized Lo-
cal 690 and signed a collective-bargaining agreement.
We disagree.
1. In his Decision, the Administrative Law Judge
refers to Local 690 President Philip Shapiro's contra-
dictory or altered testimony regarding the number of
authorization cards presented to Respondent on Oc-
tober 3, 1975.3 The Administrative Law Judge inac-
curately found that in his initial testimony Shapiro
stated that he presented five cards to Respondent on
that day. The record, however, clearly shows that
Shapiro initially testified that he presented a total of
six cards to Respondent-the four cards he obtained
i Respondent 's request for oral argument is hereby denied, as the record
and the briefs adequately present the issues and the positions of the parties.
Respondent 's request to reopen the record for the introduction of addi-
tional evidence is hereby denied as the record as made at the hearing is
adequate for the purposes of our decision.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule 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 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
7 All dates hereinafter are in 1975 unless otherwise specified
945
from employees Hammond, Francis, Gaba, and Sat-
terthwaite on September 30, Tommy Adams' card
obtained on October 1, and a card obtained earlier
from employee Napoleon Verdesoto at another loca-
tion. Later, a question asked of Shapiro referred to
the "five" cards he presented on October 3. Shapiro
responded without correcting the inaccurate charac-
terization of his previous testimony relating to the
number of cards. In subsequent testimony, however,
Shapiro confirmed his earlier testimony that six cards
had been presented to Respondent. On the basis of
the record as a whole, we therefore find that Local
690 President Shapiro presented six authorization
cards to Respondent on October 3.
2. The Administrative Law Judge found that em-
ployee Verdesoto's authorization card was invalid
because it had been given for another purpose at an-
other location and was therefore stale. He also found
that Verdesoto had involuntarily completed the card.
We disagree.
The record established that Verdesoto signed his
authorization card on August 19 while working for
Respondent at a location (66 Court Street) different
from the 369 Lexington Avenue building involved
herein . On its face the card designates, without quali-
fication, Local 690 as Verdesoto's collective-bargain-
ing representative. At the top of the card is President
Shapiro's handwritten notation-"66 Court," a refer-
ence to having obtained the card at that location.
Otherwise, the card is properly completed and signed
by Verdesoto. The card contains no indication of any
intent on Verdesoto's part to limit his authorization
of Local 690 to the particular worksite where the
card was obtained.
In addition, the Administrative Law Judge's find-
ing that Verdesoto signed the card pursuant to a
union-security clause in a collective-bargaining
agreement applicable to the Court Street site is un-
supported by record evidence. When Verdesoto
signed the authorization card on August 19, there
was no collective-bargaining agreement covering Re-
spondent's Court Street employees. There was, how-
ever, a collective-bargaining agreement between Lo-
cal 690 and Respondent which purported to cover all
of Respondent's New York employees.4 However,
Respondent and Local 690 recognized that the extant
collective-bargaining agreement was not applicable
to the Court Street building and subsequently execu-
ted a contract covering the employees at that site.
As the Administrative Law Judge accurately states elsewhere in his De-
cision, the Board will not necessarily accrete a group of employees, poten-
tially constituting a separate unit , to an existing unit without affording the
employees the opportunity to express their preference in an election Melbet
Jewelry Co, Inc, and I D S-Orchard Park, Inc, 180 NLRB 107 (1969).
Thus, under our precedent, the union -secunty clause contained in the Local
690-Respondent contract would not be effective as to the Court Street em-
ployees , including Verdesoto.
226 NLRB No. 141
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, in the absence of an applicable collective-
bargaining agreement covering the Court Street em-
ployees, there is no basis for the Administrative Law
Judge's conclusion that Verdesoto's Court Street au-
thorization card was involuntarily obtained pursuant
to a union-security clause . Furthermore, the lapse of
approximately 6 weeks between the time Verdesoto
executed the card and Respondent's recognition of
the Union at Lexington Avenue is not a sufficient
period of time to render the card stale.'
In view of the foregoing, we find that the authori-
zation card signed by Verdesoto is valid. We shall
therefore count it for the purpose of determining
whether Local 690 represented a majority of Respon-
dent's Lexington Avenue employees on October 3.
3. The Administrative Law Judge found that em-
ployee Ray Hammond's authorization card was in-
valid because it did not reflect his voluntary choice.
We disagree.
In concluding that Hammond's card was not vol-
untarily signed, the Administrative Law Judge relies
upon (a) the presence of both Local 690 President
Shapiro and Respondent's president, Schultz, on the
evening of September 30, when Hammond reported
to work and signed his card, and (b) Shapiro's ac-
companiment of the employees on their initial tour
of the building. Contrary to the Administrative Law
Judge, we do not conclude that the employees would
infer from the mere presence of Respondent's and
the Union's presidents, or Shapiro's attendance at
the tour, that they had to sign the authorization cards
in order to obtain employment. In fact, Hammond's
testimony undermines such an inference . He testified
that Schultz did not even talk to him concerning
signing the card. Further, Hammond was unable to
recall whether Schultz was still with the group of em-
ployees or had already entered the building when he
signed the card. Moreover, Hammond testified he
signed the card of his own free will. Thus, there is a
total absence of evidence that Schultz in any way
prompted or encouraged Hammond to sign the au-
thorization card or that Hammond felt coerced to do
so. Finally, the mere presence of Respondent's presi-
dent in the area where the Union solicits cards does
not violate the Act or invalidate the cards especially
where as here the solicitation took place on Respon-
dent's premises where its president had, at the time, a
legitimate business reason for being present.6
Similarly, we do not find that Shapiro's accompa-
niment of the employees on their tour of the building
interfered with their rights. The authorization cards
obtained by Shapiro on September 30, including
Hammond's had been completed and returned to
Shapiro prior to the initial building tour. Thus,
Shapiro's presence on that tour could not have
coerced Hammond or other employees to fill out the
cards. Thus, we do not adopt the Administrative Law
Judge's finding to that effect.
Based on the foregoing, we find that Hammond's
authorization card is valid. We shall therefore count
it for purposes of determining whether Local 690 rep-
resented a majority of Respondent's employees on
October 3.
4. At the hearing, no challenge was made to au-
thorization cards of Junior Francis or Tommy Ad-
ams. Adding the cards of employees Verdesoto and
Hammond, found to be valid, supra, to the cards of
employees Adams and Francis, we find that Local
690 presented at least four valid cards to Respondent
on October 3. Thus, we find that on that date, when
Respondent voluntarily recognized Local 690 as col-
lective-bargaining representative of its employees,
the Union represented an uncoerced majority of Re-
spondent's Lexington Avenue employees.' Therefore,
Respondent's recognition of Local 690 did not con-
stitute unlawful assistance in violation of Section
8(a)(1), (2), or (3) of the Act.
Accordingly, we shall order that the complaint be
dismissed in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
For the reasons set out by the Administrative Law
Judge, I would find the cards of Gaba, Hammond,
and Satterthwaite to be invalid, and would affirm his
findings of violations of Section 8(a)(1), (2), and (3)
of the Act.
5 See General Dynamics Corporation, Convair Division, 175 NLRB 1035
(1969), The Philip Carey Manufacturing Company, 59 NLRB 224, 226 (1946),
The Northern Trust Company, 69 NLRB 652, 654 (1946)
6 In Longchamps, Inc, and its Wholly Owned Subsidary, S & B Restaurant
of Huntington, d/b/a Steak and Brew of Huntington , 205 NLRB 1025 (1973),
the Board found that permitting union organizers to address employees at a
meeting called by the employer was not unlawful conduct Likewise, in
Jolog Sportswear Inc, and Jonathan Logan, Inc, 128 NLRB 886 (1960), the
Board found that employer's assembling its employees and allowing a union
representative to speak to them on company time was not violative of Sec
8(a)(2) of the Act
7 In light of our finding that Local 690 represented a majority of Respon-
dent's employees, we find it unnecessary to pass on Respondent 's excep-
tions to the Administrative Law Judge' s invalidation of the authorization
cards of employees Satterthwaite and Gaba
DECISION
HERZEL H.E. PLAINE, Administrative Law Judge: The
question presented is whether the Respondent , a mainte-
TRAVELERS MAINTENANCE
nance contractor engaged in supplying office cleaning ser-
vices, urged or solicited its maintenance employees at the
building 369 Lexington Avenue, New York, New York, on
September 30, 1975, to sign union authorization cards des-
ignating Local 690 as their representative for collective-
bargaining purposes, or otherwise assisted Local 690 to ob-
tain such signed cards; and whether Respondent executed
on October 3, 1975, and has since maintained, a collective-
bargaining contract with Local 690 covering the conditions
of work of the maintenance employees at 369 Lexington
Avenue, including a union-security clause requiring mem-
bership in Local 690 as a condition of employment, not-
withstanding that Local 690 did not represent an un-
coerced majority of the covered employees by reason of
Respondent's assistance to Local 690 or other coercion.
The complaint filed December 31, 1975,' alleges such
wrongdoing by Respondent in violation of Section
8(a)(I),(2), and (3) of the National Labor Relations Act
(the Act). Respondent by its answer and at the hearing has
admitted execution and maintenance of the collective-bar-
gaining contract, but has denied any violation of the Act.
The case was heard in New York City on February 23
and 24, 1976. General Counsel and Respondent have filed
briefs.
Upon the entire record of the case, including my obser-
vation of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a New York corporation with its office in
Hempstead, New York, and places of business in the city
and State of New York where it engaged in providing of-
fice and window cleaning services and related maintenance
work.
In the year prior to the filing of the complaint, represen-
tative of annual operations generally, Respondent grossed
revenues for its services in excess of $500,000, and during
the same time purchased and has delivered to its places of
business in New York vehicles, cleaning equipment and
supplies, and other goods valued in excess of $50,000, of
which goods valued in excess of $50,000 were delivered to
its places of business directly from points outside New
York. As the parties admit, Respondent is an employer
engaged in commerce within the meaning of Section
2(2),(6), and (7) of the Act.
As the parties also admit, Local 32B, the Charging Party,
and Local 690, the party to the contract, are labor organi-
zations within the meaning of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations and Union
Relationship
Respondent provided its office cleaning and mamte-
I On a charge filed by Charging Party (Local 32B) October 23, 1975, and
first amended charge filed December 9, 1975.
947
nance services in and about New York City under com-
mercial contracts with various building owners. Respon-
dent's officers were President Jack Schultz, Vice President
Sidney Goldman, and Secretary Gittelson. The officers
participated in supervisory phases of the work. In addition,
a "floating" supervisor would visit and supervise the clean-
ing in several buildings each night (at which time most of
the cleaning work was done).
In the main , the employees, called porters, who provided
the daily cleaning services, were hired for and assigned to a
particular building where each had a certain number of
floors or offices for which each was routinely responsible.
(A small group of employees who engaged in special main-
tenance projects were not assigned to any one building, but
none of these employees were involved in this case.)
For the office building directly involved in this case, 369
Lexington Avenue, New York City, there was a unit of six
porters on October 3, 1975, the day Respondent granted
recognition to and entered a collective-bargaining contract
with Local 690. Of these six, Tommy Adams was the lead
porter who, in addition to doing his own work that includ-
ed working in the lobby and handling the elevators, gave
out keys to the other employees and helped them get sup-
plies. The parties stipulated that Adams was part of the
bargaining unit and there was no question raised as to
whether he was a statutory supervisor The other five em-
ployees were Delois Ann Satterthwaite, the only female
among them, Ray Hammond, Robert Gaba, Napoleon
Verdesoto, and Junior Francis
Prior to October 3, 1975, Respondent already had sev-
eral collective-bargaining contracts with Local 690, accord-
ing to President Philip Shapiro. (There was no indication
that Respondent had contracts with any other labor
union.) Among these were the union contract of January 1,
1973, with a termination date of December 31, 1975, and
union-security clause , covering all locations of Respon-
dent's work in New York City (meaning all five boroughs,
the parties said, Exh. G.C.3); and the union contract of
September 2, 1975, with a termination date of August 31,
1978, and a union-security clause , covering Respondent's
work at 66 Court Street, Brooklyn (Exh. 4).
On September 25, 1975, Respondent obtained a com-
mercial contract with the owner of the office building at
369 Lexington Avenue, New York City, for the cleaning
and related maintenance of the offices and building, dis-
placing another group of people who were performing such
services. Respondent's obligation to perform was appar-
ently immediate, and Respondent commenced operations
on the night of September 30 installing the cleaning crew of
six porters. Four of the six were new hires for this job; one,
Napoleon Verdesoto, was a transfer from the 66 Court
Street job where he had been an employee for Respondent
a little over a month; and the other, Tommy Adams, had
been part of Respondent's special projects crew, and was
made lead porter of the cleaning crew at 369 Lexington
Avenue.
On the evening of September 30,2 when Respondent's
president, Schultz, and his new maintenance crew assem-
bled and waited outside the 369 Lexington Avenue build-
2 All dates without the year noted are 1975
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing (because a delay had been encountered in ousting the
displaced maintenance crew from the building), Local
690's president, Shapiro, was also with them and solicited
the signatures of the new employees to union authorization
cards 3
Union President Shapiro claimed that he did not obtain
his information about the new job at 369 Lexington Ave-
nue from Respondent's president, Schultz, and Schultz on
his part claimed he did not communicate with Shapiro in
advance of September 30 about the new commercial con-
tract. Shapiro, who was a thoroughly unreliable witness, as
will appear infra, claimed that he got his information about
the new job from Respondent's employees at 66 Court
Street, but Schultz undercut this claim by his vigorous de-
nial that he ever told his employees that he had obtained
the new contract for 369 Lexington Avenue. Moreover,
Schultz admitted that when he saw Shapiro at 369 Lexing-
ton Avenue on the evening of September 30 he (Schultz)
knew that Shapiro was there to sign up the employees, and
was signing them up for union membership, even though
both men claimed that they exchanged no talk that night
other than a "hello." I am persuaded from the total circum-
stances, including the short interval between Respondent's
obtaining the new work and Union President Shapiro's
commencement of the card solicitation, that Shapiro ob-
tained his information regarding the new job from, and
was present to obtain signatures for the Union at the sug-
gestion of, Respondent.
Union President Shapiro testified that he obtained card
signatures from the four new employees on the night of
September 30, and came back on the night of October 1 for
the card signature of lead porter Tommy Adams, though it
was established by the three employees who testified that
Adams was present with them on the street and in the
building on September 30. Shapiro's version of the time,
place, and circumstances under which the cards of employ-
ees Gaba, Hammond, and Satterthwaite were signed that
day were contradicted by the employees and will be taken
up separately, hereinafter.4
On October 3, according to Local 690's president, Shapi-
ro, he presented the five cards he had obtained on Septem-
ber 30 and October 1 to Respondent's president, Schultz, at
Respondent's office in Hempstead, and on the basis of this
showing Schultz granted recognition to Local 690 as the
bargaining agent for the unit of Respondent's office in
Hempstead, and on the basis of this showiing Schultz
granted recognition to Local 690 as the bargaining agent
for the unit of Respondent's cleaning employees at 369
Lexington Avenue. On the same day, October 3, Respon-
dent and Local 690 executed a collective-bargaining con-
tract covering the work of those employees at 369 Lexing-
ton Avenue, which contract included a union-security
clause requiring the employees to acquire and maintain
3 The card was in the form of an application for membership in Local
690, authorizing Local 690 to represent the employee in collective-bargain-
ing negotiations, and authorizing the employer-on a separate portion of
the card and second signature-to deduct dues on behalf of the Union
(testimony of Respondent President Schultz and Vice President Goldman)
4 There was no evidence concerning the circumstances of the signing of
the two cards of new employee Junior Francis and lead porter Tommy
Adams
membership in Local 690 (see Respondent's answer admit-
ting pars. 11(a) and (b) of the complaint) and a checkoff
clause.
In further testimony, Union President Shapiro altered
his initial testimony to say that he also showed Respondent
President Schultz, on October 3, a sixth card which had
been signed by employee Napoleon Verdesoto. Verdesoto's
card, dated August 19 (Exh. G.C. 4), had been signed on
August 19, said Shapiro, over a month before Respondent
acquired the maintenance contract for 369 Lexington Ave-
nue, in connection with Verdesoto's coming to work for
Respondent at the 66 Court Street building, and the card
was so marked. Shapiro conceded that it was obtained in
connection with Verdesoto going to work at 66 Court
Street.
Respondent President Schultz testified that Shapiro
showed him Verdesoto's August 19 card on October 3, but
that he did not question why it was predated. Respondent
Vice President Goldman, who said he was also present on
October 3, testified he saw the card too but did not ques-
tion the 66 Court Street address appearing on it.
General Counsel challenged the validity of the Verdeso-
to card, as well as that of the cards of employees Satterth-
waite, Hammond, and Gaba.
B. The Card of Employee Satterthwaite
Employee Delois Ann Satterthwaite was referred to Re-
spondent by an employment agency and went to work for
Respondent as a porter on the night of September 30 at 369
Lexington Avenue, where she was still employed at the
time of the hearing.
Less than 2 months later, on November 20, employee
Satterthwaite gave the Board an affidavit (Exh. G.C. 2)
stating that on her first night at 360 Lexington Avenue she
was given a number of forms by (Respondent's president)
Jack Schultz to fill out, that among them were forms for
Union Local 690, that she filled them out, and returned
them to Schultz. She further stated that Schultz was the
only man who gave her any forms to fill out for the Union
and that she has not met any agent or delegate of Local
690 since working for Respondent.
On the basis of this affidavit General Counsel subpenaed
employee Satterthwaite to testify, but she did not appear
on the first day of the hearing. She was prevailed upon to
appear on the second day, said she was nervous, and
seemed to be nervous. Part of the reason for her ner-
vousness and reluctance to testify became evident when,
on the stand, she repudiated her affidavit to the Board,
though she admitted telling it to the Board agent as writ-
ten, and stated that, on the Thursday night (February 19,
1976) before the hearing, Respondent's president, Schultz,
had come to 369 Lexington Avenue and asked her to meet
with him and Respondent's lawyer, and gave them a writ-
ten statement (quite different from her Board affidavit, as
her testimony indicated).
Employee Satterthwaite's testimony at the hearing was
that she was referred by the employment agency to Re-
spondent's president, Schultz, on September 29 and saw
him at Court Street in Brooklyn, that he gave her a depen-
dent's form and a work history form which she filled out,
TRAVELERS MAINTENANCE
and that she received no union card or papers from
Schultz. Further, she said, on the next night (September
30), when she started work at 369 Lexington Avenue, she
received no papers to sign from Schultz, and was not told
by him that someone was going to be around to get her
signature on a union card. She signed a union card that
night, she said, under the following circumstances:
Along with the men, she waited for a time in the street
on the evening of September 30, until the crew was admit-
ted into the building. Sometime thereafter she was ap-
proached by two men dressed in sports coats or dress
coats, who were not fellow workers, and whom she could
not identify. They put a card in front of her, but "They
didn't say anything. All they said was sign this card, you
sign this card, sign this card. And they said that real fast,
you know." So she signed it, she said. She could not re-
member anything about the card other than that it said
something about Union 690. When she handed the signed
card back to the two men they said nothing, according to
employee Satterthwaite.
Employee Satterthwaite denied that Schultz or Goldman
were either of the two men and was unable to identify
anyone in the courtroom as being one of them, but said
that the man named Tommy (Tommy Adams was the lead
porter) was present when she signed but was not one of the
two people who gave her the card to sign.
Local 690's president, Shapiro, claimed that he, by him-
self, obtained employee Satterthwaite's signature to the
card on the 16th or 17th floor of the building after explain-
ing to her the benefits accruing from union membership.
He said he didn't know if she read the card, and she didn't
ask any question. He also said that lead porter Tommy
Adams may have been on the floor, but that Respondent's
president, Schultz, was elsewhere in the building.
The problem with Shapiro's story was that no one sup-
ported his claim that he obtained any card signature in the
building on the night of September 30.
Employees Hammond and Gaba testified that they
signed their cards for Local 690, for Union President Sha-
piro, outside the building, while Respondent President
Schultz and the assembled crew waited to be admitted to
the building. Employee Satterthwaite confirmed that she
saw this card signing taking place. Significantly, though she
was there with the crew while the card signing was taking
place, she wasn't asked to sign by Shapiro. Either account
by Satterthwaite of how she came to sign the union card
does not support, and would add to the discredit of,
Shapiro's story of how she signed the card.
In my view, employee Satterthwaite's first account, given
to the Board less than 2 months after she was hired by
Respondent, reflects the true situation, rather than her sec-
ond and changed account, given 3 months after the first
account, which appears to have been changed just prior to
the hearing in circumstances induced by Respondent Presi-
dent Schultz that suggest she feared for herjob if she gave
testimony at the hearing adverse to her employer. The first
account established that employee Satterthwaite signed the
union card for Respondent President Schultz, and I do not
credit Schultz' denial.5
Employee Satterthwaite's card was not her uncoerced
choice of Local 690 as bargaining representative, and may
949
not be counted in support of Local 690' s claimed showing
of majority support.
C. The Card of Employee Hammond
Employee Ray Hammond began his employment as a
porter with Respondent, on the night of September 30, at
369 Lexington Avenue. At the time of the hearing he was
still employed by Respondent, at 66 Court Street.
Employee Hammond testified that he reported for work
on the evening of September 30, a little after 6 p.m., and
found the people with whom he was concerned gathered in
a group just outside the building at 41st Street and Lexing-
ton Avenue. Present, he said, were Respondent's president,
Schultz, the Union's president Shapiro, lead porter Tommy
Adams, and other members of the cleaning crew including
employees Gaba and Satterthwaite; and, said Hammond,
he stood with the group.
Continuing, employee Hammond testified that Local
690's president, Shapiro, gave him a union card to fill out.
Hammond signed the card leaning on a parked car, he
said, and borrowing employee Gaba's pen for the purpose.
Gaba filled a card out at about the same time, also leaning
on the same automobile, but, said Hammond, he didn't
hear what Shapiro said to Gaba. Employee Delois Satterth-
waite was also nearby when he signed his card, said Ham-
mond.6
Employee Hammond further testified that he wasn't sure
whether Respondent's president, Schultz, was standing
with the group when he signed the card or had already left
to go into the building. According to Hammond, Schultz
did not say anything to him about signing the card, and,
said Hammond, he signed of his "own free will."
After the card signing, the group stayed outside the
building for a while longer, said Hammond. Schultz then
preceded them into the building, and the others were taken
into the building by lead porter Tommy Adams. Inside, the
group was joined by Respondent's vice president, Gold-
man; and then the building supervisor, Mannie Schultz,
and Goldman showed the group around the building, in-
cluding Union President Shapiro, according to employee
Hammond.'
In my view, the signing of the union authorization card
by employee Hammond took place under circumstances
that constituted assistance to the Union by Respondent
and interference by Respondent with the employee's free-
dom of choice. Hammond was reporting for his first day of
work and on reporting found his employer's chief officer,
5 Even if I believed employee Satterthwaite's second account of the card
signing (and I do not), the account reveals a union authorization card signed
as the result of her intimidation by two unknown persons The card would
not represent the uncoerced choice of the employee
6 As already indicated, supra, in the light of Hammond 's testimony, cor-
roborated by Satterthwaite , supra, and Gaba, infra, I have discredited Union
President Shapiro's testimony that the card signings took place inside the
building and I do not accept his claim that no cards were signed in the
street
r 1 do not accept Shapiro's claim that he was not with the group shown
around the building His other testimony indicated he followed employees
around various floors, he said, to get cards signed, but, as shown, he already
had the cards he intended to get that night before he came into the building
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's president, Schultz, standing with Union
President Shapiro, and was almost immediately given a
union card to sign by Shapiro. The new employee in that
situation could not help but infer that he was expected to
sign, and that it would be well to sign, the union card
whether Schultz was still standing there or had crossed the
street to enter the building, of which fact he was unsure.
Indeed, Hammond had already seen his new fellow em-
ployee Gaba sign a union card for Shapiro and used
Gaba's pen to complete his own card, and Respondent
reinforced its position on the card signing shortly thereaf-
ter when its officers showed Hammond and the other em-
ployees around the building together with Shapiro.
Hammond's subjective conclusion, 5 months after the
event, that he signed voluntarily, indicative perhaps that he
voiced no objection, cannot determine whether Respon-
dent's activities constituted assistance and interference in
the setting in which they occurred.
"[A]n employer may not intrude in matters concerning
the self-organization of his employees. He must refrain
from all interference. He must maintain a strictly neutral
attitude." Harrison Sheet Metal Company v. N. L. R. B , 194
F.2d 407, 410 (C.A. 7, 1952). Even "[s]light suggestions as
to the employer's choice between unions may have telling
effect among men who know the consequences of incurring
that employer's strong displeasure." International Associa-
tion of Machinists, Tool and Die Makers Lodge No. 35 [Ser-
rick Corp] v. N.L R.B., 311 U.S. 72, 78 (1940).
Here, employee Hammond signed a union card in cir-
cumstances that do not reflect a voluntary choice by him to
be represented by Local 690. Hammond met Local 690's
president, Shapiro, in the opening moments of employment
in the presence of the employer's president, Schultz. In the
course of that meeting, Hammond was asked to sign the
authorization card. Hammond could reasonably have be-
lieved that signing a union card was one of the necessary
forms he was required to execute before starting work,
such as a tax withholding form. Compare Cadillac Wire
Corp., 128 NLRB 1002, 1005-06 (1960), affd. in N.L.R.B v.
Cadillac Wire Corp, 290 F.2d 261 (C.A. 2, 1961). This was
assistance of a coercive nature by the Employer in helping
the Union organize the employees, in violation of Section
8(a)(2). Hence, employee Hammond's card was invalid and
may not be counted toward Local 690's claimed showing
of majority status.
D. The Card of Employee Gaba
Employee Robert Gaba began his employment with Re-
spondent as a cleaning porter on the night of September 30
at 369 Lexington Avenue, where he was still employed at
the time of the hearing.
Like employee Hammond, supra, employee Gaba was
part of the group comprising Respondent's president,
Schultz, Local 690's president, Shapiro, and the newly as-
sembled cleaning crew that met on the evening of Septem-
ber 30 and waited outside the building before going in to
work According to Gaba, Shapiro gave him a union card
to sign, saying that if he didn't sign the card he could not
work in the building. Gaba testified that since he was seek-
ing work he signed the card, leaning on the back of a
parked car to do the signing. Gaba noted that other em-
ployees, such as Hammond, were nearby as Shapiro talked
to him, but that Shapiro spoke to him and the employees
he approached, individually, and that Shapiro also told
him if he signed he would get union benefits.8
As in employee Hammond's case, employee Gaba's card
signing also took place under circumstances that consti-
tuted unlawful assistance to the union by Respondent and
interference by Respondent with the employee's freedom
of choice The implication supplied by the employer in
Hammond's case, that it was necessary to sign the union
card in order to work, was likewise present in Gaba' s case,
compounded by the simultaneous express threat of the
union representative to Gaba that he would not be permit-
ted to work if he did not sign the union card. On this latter
aspect of taint, compare Rowand Company, Inc., 210 NLRB
95 (1974), and see Heck's Inc., 156 NLRB 760, 767 (1966),
enfd. in pertinent part in 386 F.2d 317 (C.A. 4, 1967).
For both reasons, employee Gaba's union authorization
card did not represent his uncoerced choice, and the card
may not be counted to sustain the Union's claimed show-
ing of majority status among the employees. Even if Re-
spondent could validly have claimed good faith on its part
(as I think it could not), its claim of lack of knowledge of
the Union's coercion and the taint of the card was not
excused, nor was its violation of Section 8(a)(2) relieved,
when it recognized a union that, as a result of the tainted
cards, represented no more than a minority of the bargain-
ing unit of its employees, International Ladies' Garment
Workers Union, AFL-CIO [Bernhard-Altmann Texas Corp.]
v. N.L R B, 366 U.S. 731, 738-739 (1961).
E. The Card of Employee Verdesoto
Former employee Napoleon Verdesoto did not testify.
According to evidence that came in through Respondent
Vice President Goldman, it appeared that Verdesoto was
removed from 369 Lexington Avenue by governmental
agents and deported from the United States.
The testimony respecting Verdesoto's union card signing
came from President Shapiro. There is a preliminary ques-
tion, raised by Shapiro's own self-contradictory testimony
(discussed, supra, Sec II,A) as to whether Shapiro actually
presented any card signed by Verdesoto to Respondent on
October 3, when Respondent granted recognition to Local
690 and entered into a collective-bargaining contract with
it as exclusive bargaining representative of Respondent's
employees at 369 Lexington Avenue. Apart from this ques-
tion, it is quite clear from Shapiro's testimony that he ob-
tained no card from Verdesoto at or in connection with his
employment at 369 Lexington Avenue. Shapiro conceded
that he saw and talked to Verdesoto, whom he said he
knew from prior employment by Respondent at 66 Court
Street, but said he didn't give him a card or ask him to sign
6 I do not accept Union President Shapiro's discredited claim (supra) that
he obtained employee Gaba's card signature inside the building, nor do I
accept Shapiro's denial that he told Gaba he couldn't work in the building
if he didn't sign the card for the Union Shapiro was not a credible witness,
for reasons already given
TRAVELERS MAINTENANCE
because Verdesoto had previously signed a card and was
already a union member.'
The card Shapiro was talking about was a card allegedly
signed by Verdesoto on August 19 (G.C. Exh. 4), when
Verdesoto came to work for Respondent at 66 Court
Street , more than 5 weeks before Respondent obtained its
commercial contract to service 369 Lexington Avenue. The
card has Shapiro's own notation that it applied to 66 Court
Street, and was admittedly obtained in connection with
Verdesoto commencing employment for Respondent at 66
Court Street in August. Hence, the card could not have
been intended by Verdesoto to signify his choice of Local
690 to represent him at 369 Lexington Avenue.
Moreover, on August 19, when it was said that Verdeso-
to signed the card, Respondent and Local 690 had a 3-year
contract made January 1, 1973, and valid until December
31, 1975, with provision for union security, that covered
cleaning services at all of Respondent's New York City
locations , which then included 66 Court Street (G.C. Exh.
3). (Respondent's later and separate contract with Local
690 for 66 Court Street, Resp. Exh. 4, did not become ef-
fective until September 2, 1975.) In the light of the collec-
tive-bargaining contract existing on August 19 covering 66
Court Street, it would appear that Verdesoto signed the
card for Local 690 only because he was required to sign it
under the union-security provision of the contract.
This conclusion becomes more apparent from additional
facts. Local 690's president, Shapiro, had been asked by
General Counsel to produce at the hearing the union's rec-
ords regarding Verdesoto. Shapiro produced only the Au-
gust 19 card. Shapiro said there was a ledger book entry for
Verdesoto, but he neither brought it, or a copy, or any
record showing that Verdesoto paid union dues, and said
that he didn't even bother to check if Verdesoto paid any
union dues . The inference is that Verdesoto never paid
dues to Local 690 and never really became a member of
Local 690.
Shapiro's contention, that he didn't ask Verdesoto to
sign a new card for 369 Lexington Avenue because he was
already a union member , also does not wash with Shapiro's
testimony that he did seek and obtain a new card for 369
Lexington Avenue from lead porter Tommy Adams, a vet-
eran employee of Respondent' s and member of Local 690
prior to coming on the 369 Lexington Avenue job. The
inference is that Shapiro also asked Verdesoto to sign and
was stalled or rebuffed by Verdesoto.
Respondent contends that Verdesoto intended to reaf-
firm his desire to be represented by Local 690 at Lexington
Avenue after signing the August 19 Court Street card,
based on Shapiro's claim that Verdesoto was one of the
employees of Respondent who told Shapiro in advance
about the Lexington Avenue job. However, as already indi-
cated, this testimony was not believable in the light of
9 There was no contention, nor could there validly be, that the new group
of employees at 369 Lexington Avenue was an accretion to a preexisting
and larger unit of Respondent 's employees As the Board said in Melbet
Jewelry Co, Inc, et a!, 180 NLRB 107, 110 (1969)
We will not, however , under the guise of accretion , compel a group
of employees, who may constitute a separate appropriate unit, to be
included in an overall unit without allowing those employees the op-
portunity of expressing their preference in a secret election or by some
other evidence that they wish to authorize the Union to represent them
951
Schultz' testimony that he never told any of his employees
in advance of the Lexington Avenue job, which became
Respondent's job with practically no time for advance no-
tice.
I am satisfied that, even if Union President Shapiro pre-
sented Verdesoto's card on October 3 to Respondent as
part of his claimed showing of majority status at 369 Lex-
ington Avenue, it was a stale card given for another pur-
pose at another location and did not constitute a voluntary
authorization by Verdesoto that the union represent him at
369 Lexington Avenue. Accordingly, the card may not be
counted in establishing the union's alleged majority.
F. The 8(a)(1),(2), and (3) Findings
The foregoing account established that on September 30,
1975, Respondent in a coercive manner (sec II,A through
E, supra) interfered with the self-organizational rights of its
employees at 369 Lexington Avenue, assisted Local 690 in
obtaining employee representation authorizations, and en-
couraged employee membership in Local 690, in violation
of Section 8(a)(1),(2), and (3) of the Act.
In addition, when, on October 3, 1975, Respondent ex-
tended recognition to and entered into a collective-bar-
gaining contract with Local 690 for the unit of Respon-
dent's employees at 369 Lexington Avenue, Local 690
represented no more than a minority of the unit of six
employees. The authorization cards for employees Sat-
terthwaite, Hammond, and Gaba had been obtained with
Respondent's unlawful assistance and were invalid (and
Gaba's card was also tainted by the coercion on the,part of
the Union's president); employee Verdesoto had manifest-
ed no interest in being represented by Local 690 in this unit
(and his old card obtained by the Union under a union-
security provision of a contract for a unit at another loca-
tion and offered here was inapplicable to the Lexington
Avenue unit); and only the cards of employees Adams and
Francis were unchallenged (though there had been no evi-
dence of the circumstances under which they were ob-
tained). Such recognition of and contract with a minority
union was a further violation on Respondent's part of Sec-
tion 8(a)(1) and (2) of the Act. Bernhard-Altmann Texas
Corp., supra, 366 U.S. at 738-739, and maintenance and
enforcement by Respondent of the union-security and
dues-checkoff provisions of the invalid contract additional-
ly violated Section 8(a)(3) of the Act.10
10 At the hearing, Respondent contended that it was entitled to delay in
proceeding, and in its brief contends that it is entitled to dismissal of the
case, because there was failure by the Regional Director or General Counsel
or Board to honor Respondent's request under the Freedom of Information
Act (5 U S C §552) for affidavits of witnesses, field investigators' reports,
and agenda minutes, in order to prepare its defense
At the hearing , 1 refused to deal with the merits of the information re-
quest or to grant any delay, on the grounds that the decision to grant access
to the information was the province of the Board or General Counsel to
whom the request must be addressed, and that since the Board had adopted
the general position that documents of the nature requested , in the circum-
stances requested , were privileged from disclosure under exemptions of the
Freedom of Information Act, there was no basis for granting delay in pro-
ceeding
Since that time, the Court of Appeals for the Second Circuit, in Title
Guarantee Co subsidiary of Pioneer National Title Insurance Co v N L R B.
534 F 2d 484 (1976 ), has upheld the Board view that investigative statements
Continued
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. By coercively assisting Local 690 to obtain represen-
tation authorizations from its employees at 369 Lexington
Avenue and encouraging their membership in Local 690,
Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1),(2), and (3) of the Act.
2. By extending recognition to and entering a collective-
bargaining contract with Local 690 for the unit of Respon-
dent's employees at 369 Lexington Avenue when Local 690
represented no more than a minority of the employees in
the unit, and by maintaining and enforcing the union-se-
curity and dues-checkoff provisions of that contract, Re-
spondent has engaged in unfair labor practices also in vio-
lation of Section 8(a)(1),(2), and (3) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that Respondent: (1) cease and
desist from its unfair labor practices and, because of its
disregard of fundamental employee rights, from in any
other manner infringing upon the rights of its employees at
369 Lexington Avenue; (2) cease recognition of Local 690
as exclusive bargaining representative of Respondent's em-
ployees at 369 Lexington Avenue, and desist from applying
obtained by the Board from employees prior to an unfair labor practice
hearing are exempt from disclosure before hearing under the Freedom of
Information Act, and the Court of Appeals for the Fifth Circuit, in Kent
Corp v NL RB, 530 F 2d 612 (1976), has upheld the Board view that
"final investigative reports" prepared in the Regional offices in connection
with investigation of unfair labor practice charges are also exempt under the
Freedom of Information Act
There would appear to be no reason for me to alter the position I took at
the hearing, and certainly no basis for even considering dismissal at this
juncture
to them the checkoff and union-security provisions of the
contract between Respondent and Local 690 relating to
them unless and until Local 690 is certified by the Board as
the representative of said employees; II (3) because of its
coercion, reimburse its employees at 369 Lexington Ave-
nue, including former employees, for all union initiation
fees, dues, and other moneys unlawfully collected from
them pursuant to the contract and checkoff authorizations,
KL Sweet Lumber Company, 207 NLRB 529, 539-540
(1973); Scottex Corporation, 200 NLRB 446, 455 (1972),
and note, as held in N.L.R.B. v. Cadillac Wire Corp., supra,
290 F.2d 261, 263 (C.A. 2, 1961), that there is no require-
ment of individual inquiry for each employee as to how far
he was coerced. In accordance with Board policy, there
shall be an allowance of interest at the rate of 6 percent per
annum added to the sum due each employee or former
employee, computed on the basis of separate calendar
quarters, with interest to begin running as of the last day of
the calendar quarter, for initiation fees, dues, and other
moneys exacted or due in that calendar quarter, until com-
pliance with the reimbursement order is achieved, Salmirs
Oil Company, 139 NLRB 25, 27 (1962); and (4) post and
deliver the notices provided for herein, the latter appearing
to be the more likely way that the affected employees will
see the notice, since they rarely if ever report in person to
Respondent's office but go directly to the office building
where they perform their work for Respondent.
[Recommended Order omitted from publication.]
ii Nothing in the recommended Order hereinafter set out shall be con-
strued to require Respondent to vary or abandon any wage, hour, seniority,
or other substantive feature of the relationship between Respondent and its
emplo} ees at 369 Lexington Avenue , inuring to the benefit of such employ-
ees, which may have been established pursuant to the contract , or to preju-
dice the assertion by the employees of any rights they may have under the
contract or any established practice in regard to wages, hours , or conditions
of employment