Unique Ventilation Co., Inc.

National Labor Relations Board - Board Decisions

Nov 28, 1947

75 N.L.R.B. 325 (N.L.R.B. 1947)

In the Matter of UNIQUE VENTILATION Co., INC. and UNITED ELEC-
TRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO
Case No. 2-C-6414-Decided November 08, 1947
Mr. George Turitz, for the Board.
Erdheim cC Armstrong, by Mr. Irving I. Erdheim, of New York
City, for the respondent.
Mr. Richard P. Reardon and Miss Mildred Roth, both of New York
City, for the Union.
DECISION
AND
ORDER'
On February 4, 1947, Trial Examiner Fitzpatrick issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices,2 and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report, attached hereto. The Trial Examiner also found that
the respondent had not engaged in certain other alleged unfair labor
practices and recommended that the complaint be dismissed with
respect to such allegations. Thereafter, the respondent and the Union
filed exceptions to the Intermediate Report.
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 Intermediate Report, the exceptions
filed by the respondent and the Union, and the entire record in the
1 The power of the Board to issue a decision and an appropriate order in a case such
as the instant one where the charging union has not complied with the filing requirements
enumerated in the Act, as amended, was decided by the Board in Matter of Marshall and
Bruce company, 75 N. L R. B 90
2 The Trial Examiner found that the provisions of Section 8 (1) and (5) of the Act had
been violated These provisions are continued in Section 8 (a) (1) and 8 (a) (5) of the
Labor Management Relations Act, as amended.
75 N. L. R. B., No. 41.
766972-48-vol 75-22 325
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case,3 and hereby adopts the findings, conclusions and recommenda-
tions of the Trial Examiner except insofar as they relate to the
remedial order to be issued with respect to the 8 (5) violation.
For the reasons stated by us in the Marshall and Bruce Company
case, supra, and the Plankinton Packing Company case,4 both of
which involved a violation of Section 8 (5) of the Act, as well as
noncompliance by the charging union with the filing requirements
of the amended Act, we shall not issue the recommended unqualified
order that the respondent, upon request, bargain collectively with
the Union as the exclusive representative of the employees in the
appropriate unit, but shall instead condition our order, in part, upon
compliance by the Union with Section 9 (f), (g) and (h) of the
amended Act within thirty (30) days from the date of the order
herein.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, Unique Ventila-
tion Co., Inc., New York City, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Electrical, Radio
^C Machine Workers of America, CIO, if and when said labor orgaii-
ization shall have complied, within 30 days from the date of this
Order, with Section 9 (f), (g), and (h) of the Act, as amended,'
as the exclusive bargaining representative of all the respondent's
production and maintenance employees, excluding clerical employees
and supervisors ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist United Electrical, Radio
R Machine Workers of America, CIO, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act, as amended.
3 Contrary to the contention of the respondent , we find , as did the Trial Examiner, that
the respondent is engaged in commerce within the meaning of the National Labor Relations
Act See Newport News Shipbuilding & Dry Dock Co . v. N. L. R. B ., 101 F. ( 2d) 841, 843
(C C A. 4) ; Matter of Standard Pattern Works, 59 N. L . R B. 1075, Matter of Trinidad
Brick and Tile Company , 67 N L R B 1351 , and cases cited therein.
4 Case No . 13-C-3049, 75 N. L. R. B. 241.
5 As to what constitutes complijince in this respect , see Matter of Northern Virginia
Broadcasters , Inc, 75 N. L. R. B. 11.
UNIQUE VENTILATION CO., INC. 327
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, and upon compliance by United Electrical, Radio
& Machine Workers of America, CIO, with the filing requirements of
the Act, as amended, in the manner set forth above, bargain collec-
tively with United Electrical, Radio & Machine Workers of America,
CIO, as the exclusive representative of all its employees in the above-
described appropriate unit, with respect to grievances, labor disputes,
wages, rates of pay, hours of employment or other conditions of em-
ployment, and if an understanding is reached, embody such under-
standing in a signed agreement;
(b) Post in conspicuous places throughout its plant at New York
City, copies of the notice attached hereto marked "Appendix A." 6
Copies of said notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, and again within
ten (10) days from the future date, if any, on which the respondent
is officially notified that United Electrical, Radio & Machine Workers
of America, CIO, has met the condition hereinabove set forth, what
steps the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent unlawfully discriminated against Joseph Silardi and
Stanley Frenchak with respect to their hire or tenure of employment,
be, and it hereby is, dismissed.
MEMBER GRAY took no part in the consideration of the above Decision
and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees
e In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted , before the words, "A Decision and Order" the words "Decree of the
United States Circuit Court of Appeals Enforcing "
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with United Elec-
trical, Radio & Machine Workers of America, CIO, the exclusive
representative of all production and maintenance employees, ex-
cluding clerical employees and supervisors, provided said labor
organization complies within thirty (30) days from the date of
the aforesaid Order of the Board, with Section 9 (f), (g), and
(h) of the National Labor Relations Act, as amended.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to.
form labor organizations, to join or assist United Electrical,
Radio & Machine Workers of America, CIO, or any other labor or-
ganization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
WE WILL BARGAIN collectively upon request with United Elec-
trical, Radio & Machine Workers of America, CIO, as the ex-
clusive bargaining representative of all employees in the unit
described herein with respect to labor disputes, grievances, wages,
rates of pay, hours of employment, or other terms or conditions of
employment, and if an understanding is reached, embody such
understanding in a signed agreement; provided said labor organ-
ization complies within thirty (30) days from the date of the
aforesaid Order of the Board, with Section 9 (f), (g), and (li)
of the National Labor Relations Act, as amended. The bargaining-
unit is : All production and maintenance employees of the re-
spondent, excluding clerical employees and supervisors.
All our employees are free to become or remain members of the-
above-named union or any other labor organization.
UNIQUE VENTILATION CO., INC.,
Employer.
By -----------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,.
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. George Turitz, for the Board.
Erdheim & Armstrong, by Mr. Irving I. Erdheim, of New York City, for the
respondent.
Mr. Richard P. Reardon and Miss Mildred Roth, of New York City, for the
Union.
STATEMENT OF THE CASE
Upon a first amended charge duly filed October 4, 1946, by United Electrical,
Radio & Machine Workers of America, CIO, herein called the Union, the Na-
UNIQUE VENTILATION CO.; INC. 329
tional Labor Relations Board, herein called the Board, by its Regional Director
for the Second Region (New York, New York), issued its complaint dated
October 7, 1946, against Unique Ventilation Co, Inc., New York, New York,
herein called respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint and
notices of hearing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance :
,(1) that the Union on June 16, 1946, represented a majority of the employees in
an appropriate unit, and since June 16, 1946, by virtue of Section 9 (a) of the
Act, the Union has been and now is the exclusive representative of all em-
1iloyees in said unit; that on or about June 17. 1946, the Union requested re-
spondent to bargain collectively in respect to rates of pay, wages, hours of
-employment, or other conditions of employment with the Union as the exclusive
representative of all the employees of the respondent in the defined unit ; that
pursuant to said request and on or about June 24, the respondent and the Union
entered into an agreement for a consent election to be conducted on July 2 under
the supervision of the Regional Director ; that at the time it made the agreement
the respondent intended to prevent the holding of a free election, and to refuse
to bargain collectively with the Union as the exclusive representative of the
'employees in the agreed unit, and entered into the agreement in bad faith ;
,(2) that the respondent prevented the holding of a free election by: (a) from
on or about June 24, 1946, interrogating its employees concerning their union
affiliations, urging, persuading and warning them from voting for, assisting,
becoming members of or remaining members of the Union, compelling them to
attend meetings at which the respondent urged, persuaded and warned them
from so acting, threatening them with discharge or other reprisals if they joined,
voted for, remained members of or assisted the Union; and (b) from on or about
June 26, 1946, bargaining directly and individually with its employees in the
agreed unit, and granting wage increases, vacations with pay and holiday privi-
leges to such employees; (3) that the respondent on or about August 15, 1946,
laid off Anthony Dator, Joseph Silardi and Stanley Fenchak, and has since re-
fused to reinstate any of them, because each of them joined or assisted the Union
or engaged in concerted activities for the purposes of collective bargaining or
other mutual aid or protection; and (4) by all the above acts, the respondent has
interfered with, restrained and coerced its employees in the exercise of the
.rights guaranteed in Section 7 of the Act.
Thereafter the respondent filed its answer verified on October 24, 1946, wherein
it admitted certain allegations in the complaint relative to the nature of its
,business, and that Dator, Silardi and Fenchak were laid off. It denied all other
allegations in the complaint, except the allegation that it had entered into the
agreement for a consent election in the defined unit.
Pursuant to notice, a hearing was held in New York City from November 18
through November 21, 1946, before the undersigned, J. J. Fitzpatrick, the Trial
Examiner, duly designated by the Chief Trial Examiner. The Board, the re-
spondent and the Union were represented by counsel and participated in the
'hearing 1 All parties were afforded full opportunity to be heard, to examine and
1 At the opening of the hearing on November 13, Richard P Reardon, business repre-
sentative, entered an appearance for the Union. On November 20, Attorney Mildred Roth
also entered an appearance for the Union.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-examine witnesses, and to introduce evidence bearing on the issues. At
the conclusion of the presentation of the Board's case, the respondent moved to
dismiss the complaint for lack of evidence. Board's counsel consented to the
dismissal of the allegation of discrimination relative to Dator who failed to
appear to testify. The motion to dismiss was granted insofar as the complaint
alleged discrimination as to Dator, but in other respects the motion was denied.
At the conclusion of the testimony, Board's counsel's motion to conform the
pleadings to the proof in formal matters was granted, and a motion by the
respondent's counsel to dismiss the complaint for lack of proof was taken under
advisement. This motion, in effect, 'is disposed of in this report as will hereafter
appear. At the close of the hearing, counsel for the Board and for the respondent
argued orally before the undersigned and were granted the privilege of filing
briefs after the close of the hearing. A brief has been received from counsel
for the respondent.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Uniuge Ventilation Co, Inc., is a New York corporation with its principal office
and place of business at 615 Tiffany Street, Bronx, New York, where it is engaged
in the manufacture of sheet metal novelties and related products Since prior
to September 1945, substantially all the products of the respondent have been
manufactured pursuant to orders of and for sale to Metalace Corporation of
2101 Grand Concourse, Bronx, New York, herein called Metalace. The re-
spondent's total sales of its products for the year ending September 30, 1946,
amounted to approximately $80,000. During this period Metalace sold the prod-
ucts thus manufactured by the respondent as follows: (a) $4,600 in value were
sold and delivered to Petroleum Solvents Corporation of Port Reading, New
Jersey ; and (b) approximately $51,000 worth were sold to films located in the
State of New York, about $38,000 of which reached customers of these firms
located outside the State of New York .2
The respondent in its brief contends that the Board has failed to establish
jurisdiction because there was no showing where the raw materials came from
which the respondent used to manufacture its products, but cited no cases in
support of its contention. The undersigned agrees with the contention of Board's
counsel at the oral argument that it is not vital to establish that a portion of the
materials used by the respondent in the manufacture of its products came to it
from without the State of New York, where, as here, it appears that a con-
siderable portion of the respondent's products reached customers located outside
the State." It is therefore found that the respondent is engaged in business
affecting interstate commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America, CIO, is a labor
organization, admitting to membership employees of the respondent.
2 Of the products so sold in the State of New York about $2,500 in value were hand deco-
rated and repacked by Metalace 's customers before being shipped outside the State An
additional $5,500 in value of these products represented metal baskets, which were filled
with merchandise by Metalace 's customers before being shipped outside the State
3 Cf. In the Matter of Ace Foundry, Limited, etc., 38 N. L R. B. 392.
UNIQUE VENTILATION CO., INC. 331
III. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain; interference, restraint, and coercion
1. Chronology
The respondent's plant is a comparatively small one consisting, in the early
summer of 1946, of about 31 persons including the office help and President
Tartaglia, who was also the manager. Union interest among the production
workers apparently started about June 6, 1946, when Joseph Silardi, Tony Dator,
and Mickey Ricca met by appointment with a Union organizer. As a result of this
meeting application cards were secured and distributed and a majority of the
maintenance and production workers in the plant joined the Union by about
the middle of June. Demands were formulated and the Union representative was
instructed to take them up with management. Thereupon, by letter dated
June 17, Richard P. Reardon, business representative for the Union, wrote the
respondent as follows :
GENTLEMEN :
This is to notify you that a substantial majority of your employees have
joined the Union, and designated it as their collective bargaining agent
in all matters of wages, hours, and working conditions.
In the interest of a future good relationship, I ask that you arrange to
meet with us to discuss this matter within a few days.
Will you please call me to confirm this letter.
Upon receipt of the letter President Tartaglia conferred with his attorney,
Erdheim, and stated to the latter that he was willing to negotiate with the
Union provided it actually represented a majority of the employees as claimed.
Erdheim then conferred with Reardon and asked the latter to state what the
Union's proposals were. Reardon explained that it was the Union's policy to
settle the question of recognition first before discussing terms of a contract,
whereupon Erdheim stated that the respondent would recognize the Union pro-
vided the latter could show that it actually represented a majority, and asked to
-see the Union cards. Reardon objected to showing the cards and it was arranged
that the parties meet at the Regional Office the morning of June 21. At the
Regional Office conference a Field Examiner of the Board explained to Erdheim
that the question of Union representation among the respondent's employees
could be established either by a cross check of Union cards against the pay roll
of the Company, or by a consent election. The latter method was agreed upon
and a consent election agreement was signed by the parties on June 25 It
provided for an election to be held on July 2, 1946, in a unit consisting of all
production and maintenance employees excluding clerical employees and all
supervisors with authority to hire, promote, discharge, discipline or otherwise
effect changes in the status of employees or effectively recommend such action.
On the morning of June 26, which was the day after the signing of the election
agreement, Mickey Ricca, who it will be recalled was active organizing the
Union in early June, but who had just been promoted to production manager
(a supervisory job), called about a dozen employees including Ernest DelliBovi
into Tartaglia's private office, where Tartaglia told them that if the Union
succeeded in getting into the plant he would be forced to close. He stated
that he was willing to give the employees as much as the Union could secure for
them by bargaining, and promised a 5-cent an hour general raise in pay, vacations
with pay after a certain initial period of employment, and paid holidays.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to this promise, a 5-cent raise was made effective the week ending
June 28, 1946.
Fifteen minutes before quitting time the same afternoon of June 26, President
Tartagia stopped the work and assembled all the employees around him in
the shop He told them about the Union claiming to represent a majority of
the employees and requesting a conference with him to discuss the terms 'of a
contract, and stated that the union claim of a majority came as a surprise, and
he was not sure it was true; that under the law employees were entitled to
choose a bargaining representative but that many employees preferred to deal
directly with their boss; that his business had developed the "hard way" with
the help of some of the older employees ; that lie had always treated his employees
fairly and had their interests at heart; that only recently lie had completed
arrangements for "on the job training" for disabled veterans,' but that it the
Union came into the plant the veterans training program would have to go.
The employees were paid for this 15-minute period
The next morning Charles Kleinberg, a recently employed disabled veteran,
on company time, circulated among the employees a petition addressed to the
respondent, reading as follows:
UNIQUE VENTILATING [SIC] CO.
Mr. FRANK TART'
DEAR SIR- We the undersigned employees of the Unique Ventilating Co.
having been informed that Local 475 C. I. O. United Electrical, Radio, and
Machine Workers of America seeks recognition as the executive bargaining
agent wish to advise you that we have not joined the above union, or if having
joined, no longer wish to have the above union represent us.
This petition was signed by both Production Manager Ricca and Foreman Urgo
and circulated among the other employees in the presence of both In fact,
Ricca assisted Kleinberg in securing the signatures of one or two employees.
A few of the employees including Ernest DelliBovi and Stanley Fenchak re-
fused at first to sign until it developed that more than a majority of the em-
ployees had already affixed their signatures to the document. When practically.
all the employees in the plant, with the exception of Silardi, heretofore ieteried
to, had signed the petition, Kleinberg turned it over to Ricca, who presented
it to Tartaglia in his office. Silardi, who had recently been elected the union's
committeeman, then came to Tartaglia's office and after being assured by Tar-
taglia that there would be no discrimination against him or other union workers,
also signed the petition.'
The next day, June 28, the Union requested and was granted permission to
withdraw without prejudice its petition of representation. The same day the
Union filed charges of unfair labor practices against the respondent.
' Several of the respondent's employees had recently been released from the United
States Armed Services
President Tartagha was known around the plant as Frank Tart
The findings as to what transpired in the plant on June 26 and 27 are based upon the
mutually corroborative testimony of DelliBovi, Joseph Novelli, Stanley Fenchak, Charles
Klemberg, Evelyn Fredericks, Joseph Silardi, and some of the testimony of Tartaglia.
Tartagha denied that he made any reference to on the job woik for veterans. However,
his testimony regarding the preparation of his speech and other matters is characterized
by inconsistencies and contradictions For instance, he testified first that he prepared the
speech after receipt of the June 17 letter from the Union. Later, he testified that he made
the talk to the employees on June 26 at the request of the group of employees that visited
hrim that morning. Because of this and other inconsistencies , his denial is not credited.
UNIQUE VENTILATION CO., INC.
Conclusions
333 ,
The complaint alleges that all production and maintenance employees of the
respondent, exclusive of clerical employees and supervisors with authority to
hire, promote, discharge, discipline or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit appropriate
for the purposes of collective bargaining. The respondent's answer denies this
allegation in the complaint, but no evidence was offered to indicate that the
above unit is inappropriate, or to establish the appropriateness of an alternative
unit. Furthermore, as above found, the respondent signed the election agree-
ment of June 25, 1946, wherein the above unit was set forth as the appropriate
one It is therefore found that the group of employees described above con-
stituted at all times material herein, and now constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act, and that such unit will insure to employees of the respondent the full
benefits of their right to self-organization and collective bargaining and otherwise
effectuate the policies of the Act.
The complaint also alleges, and the answer denies, that the Union since June 16,
1946, has been the representative for the purposes of collective bargaining of a
majority of the employees in the defined unit and by virtue of Section 9 (a) of
the Act, has been and now is the exclusive representative of all the employees in
said unit for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment or other conditions of employment. At the hearing,
the respondent stipulated that on or prior to June 17, 1946, 1S [a majority] of
the employees in the defined unit joined the Union 7 As hereinabove found, on
June 27 a great majority of the employees in the defined -unit, including many, if
not all, of the 18 employees who had joined the Union previously, signed a petition
which was delivered to Tartaglia wherein it was stated that the signers thereof
did not want the Union to represent them It is clear, however, and the under-
signed finds, that the signatures of at least some of the employees were obtained
to the petition because of Tartaglia's contemporaneous threat to close the plant
and to discontinue training of veterans if the Union came in, and his promise of a
wage increase, and that the statements therein contained did not, and do not,
reflect the free and uncoeiced desires of the employees relative to a bargaining
representative Under the circumstances, such a petition can have no legal effect
on the majority status of the Union as the employees' representative in existence
prior to June 27, 1946.8 It is therefore found that at all times since June 17, 1946,
the Union has been the representative for the purposes of collective bargaining
of a majority of the employees in the defined unit and by virtue of Section 9-
(a) of the Act has been and now is the exclusive representative of all the em-
ployees in said unit for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, or other conditions of employment
It is further found that, by the statements of President Tartaglia to certain
employees on June 26 (the day after the consent election agreement was signed)
that if the Union won the plant would be forced to close, and that he was willing
to give the employees all that the Union could gain for them by bargaining, includ-
7 The 18 who signed applications to join the Union included Michael Ricca, who, as here-
tofore found , was shortly thereafter promoted to a supervisory position . Eliminating-
Ricca, the 17 remaining would still constitute a majority, as the record discloses not to.
exceed 27 employees in the unit
8 Cf. In the Matter of Consolidated Machine Tool Corp ., etc, 67 N L R. B 737
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a general pay raise ( which pay raise was immediately put into effect) ; and
by Tartaglia 's prepared speech to all the employees later the same day wherein.
he announced that while they had the right to organize , many employees preferred
to deal directly with their boss, that he had their interests at heart and had
recently arranged for on the job training for veterans but that the veterans train-
ing program would have to go if the Union came in the plant , the respondent
intended ( a) to interfere with the conduct of the election and the holding of a
free election , and (b ) to refuse to bargain with the representative of the em-
ployees in the defined unit, and entered into said election agreement in bad faith.
The respondent , in its brief , argues that there can be no finding of a refusal
to bargain because the Union letter of June 17 was not a request to bargain
collectively and the record fails to disclose evidence of any other request. It
is true that the June 17 letter to the respondent did not request in so many
words that the respondent enter into bargaining negotiations with the Union.
The letter did, however , state that a majority of the employees had designated
the Union as their collective bargaining agent and asked for a conference to
discuss "this matter ." Moreover, contemporaneously with the sending of this
letter to the respondent , the Union filed with the Regional Office a petition
for representation of which fact the respondent received knowledge . Further-
more, Tartaglia interpreted the June 17 letter as a request that he enter into
negotiations with the Union to the end that an agreement might be arrived at,
and so informed the employees in his speech of June 26.
Examination of the authorities cited by the respondent in its brief shows
clearly that the cases therein referred to are not in point as to whether a de-
mand to bargain has to be spelled out, where recognition has been requested.
Furthermore , the Board , in situations similar to the facts before us, has held
that where there is a demand for recognition , ,but, before the actual majority
of the union has been determined through the Board ' s processes , the union
loses its majority because of the unfair labor practices of the employer , it con-
stitutes a refusal to bargain . In Matter of Prigg Boat Works etc., 69 N. L.
R. B. 97, the union wrote the employer a letter in which it claimed to repre-
sent a majority of the employees and asked for recognition . Thereafter a con-
sent election was agreed to but the consent election thereafter held was can-
celed due to the unfair labor practices of the employer . The Board said,
While he [the employer ] was entitled to insist upon the establishment
of the union's majority, he was under the correlative obligation to permit,
and to abide by, his employees ' free choice of a representative as it existed
at the time of the request for recognition , and not to attempt to defeat
such choice by discharging union members before the election or by any
other form of interference , restraint , or coercion.
Upon the entire record the undersigned therefore concludes and finds that
on June 17 , 1946, and at all times since, the Union has represented a majority
of the respondent ' s employees in the defined unit ; that on said date, and at
all times since , the respondent has refused to bargain collectively with the
Union as the exclusive representative of its employees in said unit. It is fur-
ther found that by the refusal to bargain , and by President Tartaglia 's threats
to close the plant and to discontinue the veterans' training program if the
Union came in, and his unilateral promise to raise and his raising the em-
ployees' wages , the respondent has interfered with, restrained and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act
UNIQUE VENTILATION CO., INC.
B. The lay-offs
335
As heretofore found, the respondent ' s shop was a small one. All the machines
used and the operations performed were in one large room . Aside from Tartaglia
himself and his foreman , Urgo, both of whom were mechanics , none of the em-
ployees in the production end of the business were skilled workmen as the term
is ordinarily used, nor were they paid as such. According to a pay-roll list of
the shop submitted by the respondent to the Regional Office about June 26, 1946,
the rank and file employees in the shop totaled 27 and consisted of pot welders,
mechanics and machine operators , including shearers , with pay ranging from
70 to 95 cents per hour and apprentices and common laborers whose hourly rate
ranged from 55 to 70 cents an hour. Included in the apprentice group were a
few disabled war veterans , like Charles Kleinberg , who were being trained in
the business under an arrangement with the Veterans ' Administration for train-
ing disabled war veterans . Also included in the group were three or four part-
time employees , students who worked after school hours.
Because of inability to secure the necessary metal strips used in the prepara-
tion of its products , the respondent necessarily had to curtail its operations in
the late summer of 1946, and legitimately laid off a considerable number of its
workers. As a result of the lay-offs , the record shows without dispute that
the respondent ' s production force was reduced to 16 workers at the time of
the hearing.
The first lay-offs as a result of this inability to get material happened on Au-
gust 15, when Robert Herlihy, Joseph Silardi , Stanley Fenchak, and Anthony
Dator were released from employment . It is not alleged that Herlihy's lay-off
was discriminatory , and as previously found, Board's counsel agreed to the dis-
missal of the allegation in the complaint that Anthony Dator was discriminatorily
treated, because of the failure of Dater to appear to testify at the hearing. It
is advisable , however, to discuss the lay-offs of all four of these employees so as
to have a complete picture as to the circumstances surrounding the lay-off of
Silardi and Fenchak, alleged to have been discriminatorily laid off and refused
reinstatement.
As previously found, in addition to the August 15 lay-offs of the above-named
four employees , the respondent continued to reduce its staff of production work-
ers. No new employees were hired during this period excepting one man, Bill
Kane. Kane was hired in,September and left several weeks later to take another
job. He worked for the respondent only part time during this period and his
work consisted of common labor and odd jobs. While the record does not show
the hourly rate paid to Kane , he presumably was paid on the same basis as the
other part-time laborers . Tartaglia 's uncontradicted testimony is credited that
he gave this temporary work to Kane because the latter had worked for him
for awhile several years before, and he understood that Kane was a recently
released service man and was "down and out" and needed help.
None of the employees laid off on August 15 , or thereafter , have been returned
to work except Herlihy, who was called back about 2 weeks later and apparently
is still working for the respondent . The record does not disclose when Herlihy
originally came to the respondent , but he was classed as an apprentice the same
as Fenchak . They both worked wherever needed, on the punch press, the winding
machine and in the dipping vat. Tartaglia testified that Herlihy was returned
to work in September in preference to Fenchak because the former was a more
dependable and a better workman than the latter . Although Herlihy had been
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged by Ricca a few weeks prior to August 15 because he did not do his
work, he was reinstated the same clay, on probation by Tartaglia. Thereafter
Herlihy's work apparently improved.
Conclusions
It is the general contention of Board's counsel, as shown in the oral argument,
that when lay-offs became necessary in August 1946, the respondent, disregarding
employees with less seniority, selected Sdardi, Fenchak and Dator because of
their union activity, and has refused to reinstate them for the same reason.
Silardi was the moving spirit in the union organization efforts and had been
elected chairman of the shop committee. The respondent was aware of these
facts. It is a reasonable presumption herein found that because of Production
Manager Ricca's activities with Silardi in the union organization work in June
1946, the union activities of Dator and Fenchak, as well as the others who joined
the Union, were known to the respondent.
The record shows without dispute that employment in the respondent's plant
since August 15, 1946, has steadily lessened and the number of employees has been
drastically reduced due to the inability of the respondent to get needed material.
The temporary employment for a few weeks of Kane in the fall of 1946 does not
alter this conviction. Kane's work was general labor neither the type of which
nor the wages paid therefor would presumably have appealed to either Silardi or
Fenchak.° Furthermore, Kane was only a part time worker during the few
weeks he worked for the respondent Herlihy was paid at the rate of 65 cents
an hour, while Fenchak received 70 cents an hour. This might indicate that
Fenchak had more seniority than Herlihy, or that he was regarded as a better
workman However, the respondent had no fixed seniority policy and Tartag-
lia's testimony is uncontradicted that Herlihy was a better workman than Fen-
chak. No finding to the contrary would be warranted in this state of the record.
Furthermore, Herlihy, as well as Fenchak, Dator and Silardi, joined the Union
in June. While Silardi was the active union member thereafter, it is as reason-
able to assume that the respondent knew that Herlihy was a member as that it
knew that Fenchak or Dator was.
Joseph Silardi was one of three shearers employed by the respondent and
he had less seniority than the other two shearers, Ernest DelliBovi and Joseph
Pacella, who were retained. Both DelliBovi and Pacella joined the Union in
June The record fails to disclose that Silardi was better equipped as a shearer
than the two retained for this type of work.1°
Board's counsel argues that other employees doing common labor and with
less seniority than either Fenchak or Silardi were retained and the respondent
has given no explanation of its failure to offer this type of work to them. Dis-
regarding the fact that the evidence is inadequate to show a seniority policy in
lay-offs, in any event there was no showing that either Silardi or Fenchak at the
time of their lay-off in August 1946, or later, requested or were refused, lesser
paying jobs in the plant. Furthermore, some of those retained had joined the
Union in June, and the record is incomplete in this respect as to the others.
This contention of Board's counsel is therefore rejected.
°Silardi was earning 80 cents an hour and Fenchak 70 cents an hour as heretofore
found . Kane's hourly rate presumably was the lowest bracket late of 55 or 60 cents an
hour.
10 All the employees referred to above, except Dator , signed the statement that was
handed to Tartaglia on June 27 wherein an attempt was made to repudiate the union as
bargaining representative . Silardi and one or two others refused to sign the document
until it developed that a majority of the employees ' names were already affixed thereto.
As previously found, Dator did not testify and the record fails to explain the absence of
his name on the statement.
UNIQUE VENTILATION CO., INC. 337
Under all the facts and circumstances herein appearing, and giving due con-
sideration to the respondent's efforts to defeat organization of its employees as
heretofore found, the undersigned is not convinced that discrimination has been
shown in the hire and tenure of employment of either Silardi or 1 enchak as pres-
ently alleged in the complaint herein. It will therefore be recommended that
the complaint in that respect be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
!lave a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
v. THE REMEDY
As it has been found that the respondent has engaged in certain unfair labor
practices. the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action in order to eitectuate the policies of the Act.
The undersigned has found that the respondent refused to bargain collectively
with the Union although it was the exclusive representative of the employees in
a unit appropriate for the purposes of collective bargaining. Accordingly, it
will be recommended that the respondent, upon request, bargain collectively with
the Union, as the respresentative of its employees in the defined unit
In addition to the refusal to bargain the record demonstrates that the respond-
ent, by the unilateral wage increase and threats to close the plant or curtail its
operations if the Union came into the plant, has adopted an attitude of general
opposition to the exercise by the employees of their rights under the Act. It
will therefore be recommended that the respondent be required to cease and desist
from in any manner interfering with, restraining, or coercing its employees in
the exercise of such rights"
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following.
CONCLUSIONS or LAW
1 United Electrical, Radio & Machine Workers of America, CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2 All production and maintenance employees of the respondent, excluding
clerical employees and supervisors with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
3 United Electrical, Radio & Machine Workers of America, CIO, was on
June 17, 1946, and at all times thereafter has been, the exclusive representative
of all employees in the aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on June 17, 1946, and at all times thereafter to bargain collec-
tively with United Electrical, Radio & Machine Workers of America, CIO, as the
exclusive representative of all its employees in the aforesaid appropriate unit,
the respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act.
11 Cf May Department Stores v N L R. B., 326 U S. 376.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
7. The respondent has not discriminated in regard to the hire and tenure of
employment of Joseph Silardi or Stanley Fenchak.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and'
upon the entire record, the undersigned recommends that the respondent, Unique
Ventilation Co., Inc, New York City, New York, its officer, agents, successors,
and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Electrical, Radio & Machine'
Workers of America, CIO, as the exclusive representative of all production and
maintenance employees, excluding clerical employees and supervisors with.
authority to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, in respect to rates.
of pay, wages, hours of employment, and other conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form labor organizations, or to
join or assist United Electrical, Radio & Machine Workers of America, CIO, to
bargain collectively through representatives of their own choosing, and to engage
in concerted activity for the purpose of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Electrical, Radio & Ma-
chine Workers of America, CIO, as the exclusive representative of all its em-
ployees in the above-described appropriate unit, and, if an understanding is
reached, embody such understanding in a signed agreement;
(b) Post in conspicuous places at its plant in New York City, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after being-
duly signed by the respondent's representative, be posted by the respondent im-
mediately upon receipt thereof and maintained by it for a period of sixty (60)
consecutive days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced, or covered
by any other material ;
(c) Notify the Regional Director for the Second Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is also recommended that the complaint be dismissed insofar as it alleges
discrimination in the hire and tenure of employment of Joseph Silardi and'
Stanley Fenchak.
I
UNIQUE VENTILATION CO., INC. 339
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motion or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.65. As further provided in said Section 203 39,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
J. J. FITZPATRICK,
Trial Examiner.
Dated February 4, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join, or assist, UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA,
CIO, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection. All our
employees are free to become or remain members of this union, or any other
labor organization.
WE WILL BARGAIN collectively upon request with the above-named union as
the exclusive representative of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employment or other conditions
of employment, and if an understanding is reached, embody such understand-
ing in a signed agreement. The bargaining unit is :
All production and maintenance employees , exclusive of clerical employees
and snpervisors with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend
such action.
UNIQUE VENTILATION CO, INC.,
Employer.
Date ----------------------- By -----------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.