Alco Venetian Blind Co., Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1981

253 N.L.R.B. 1216 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alco Venetian Blind Co., Inc. and Local Union No.
1922, International Brotherhood of Electrical
Workers, AFL-CIO. Case 29-CA-7145
January 9, 1981
DECISION AND ORDER
On April 15, 1980, Administrative Law Judge
Raymond P. Green issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel filed exceptions and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Alco Venetian
Blind Co., Inc., Lindenhurst, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
CHAIRMAN FANNING and MEMBER JENKINS, dis-
senting in part:
We agree with our colleagues with respect to
their adoption of the Administrative Law Judge's
Decision finding certain 8(a)(1) violations. Howev-
er, contrary to our colleagues, we would find that
' Counsel for the General Counsel has excepted to certain credibility
findings made by the Administrative Law Judge It is the Board's estab-
lished policy not to overrule an administrative law judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Stand-
ard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings.
In affirming the Administrative Law Judge's findings, we do not rely
on his suggestion that various inferences could be drawn from the fact
that the majority of picketing employees abandoned the strike within the
workweek, or his statement that there was no evidence that the unlawful
remark about closing the plant which was made by Al Agresta to Union
Representative Al Faicco in the presence of several employees was trans-
mitted to other employees.
2 The General Counsel contends that the Administrative Law Judge
incorrectly computed the amount of the wage increase granted by Re-
spondent in July 1979 by his use of salary rates obtained from Respond-
ent's payroll records rather than its wage cards. We find that regardless
of which method of calculation is used, the General Counsel has not es-
tablished that the range of wage increases granted varied unlawfully from
that given in previous years. We note, furthermore, that the wage in-
crease was given in July, the month that Respondent regularly granted
such increases; that the increases were given several months after the
strike and all other union activity had ceased; and that there has been no
showing of any unlawful actions by Respondent during this post-strike
period In thus affirming the Administrative Law Judge's finding that Re-
spondent's wage increase did not violate the Act, we do not rely on his
use of Bureau of Labor Statistics figures as to the inflation rate, since the
General Counsel did not have an opportunity to respond to the use of
these figures at the hearing, or to the Administrative Law Judge's use of
the 1979 wage increase of nonbargaining unit employees
253 NLRB No. 161
Respondent's interrogation of employees in the ab-
sence of the safeguards provided in Struksnes Con-
struction Co., Inc., 165 NLRB 1062 (1967), violated
Section 8(a)(1) of the Act. The Administrative
Law Judge dismissed this allegation on the ground
that, although Respondent's poll was not conduct-
ed in accordance with the standards established in
Struksnes, the circumstances would not justify the
conclusion that Respondent interfered with its em-
ployees' Section 7 rights, In reaching this result,
the Administrative Law Judge relied on Bushnell's
Kitchens, Inc., 222 NLRB 110 (1976). However, for
the reasons set forth in Member Jenkins' dissent in
Bushnell's, we would not follow that decision here.
Under circumstances in which one of Respondent's
owners asked a group of employees and several
union representatives if this was the union they
wanted and if they were aware that there was an-
other union which could do better for them, we
would find that the requirements for lawful polling
of employees under Struksnes clearly were not met,
and that Respondent therefore violated Section
8(a)(i) of the Act. Because the safeguards estab-
lished in Struksnes continue to be the best means of
allaying in employees any fear of discrimination
which might otherwise arise from polling, we see
no reason to carve out an exception to the
Struksnes rule in this case, and therefore dissent. 3
:' See also our dissent in Jrome J. Jacomrr d/b/a Red N.Voveltry Co. and
R-N Amusement (Corporaion. 222 Nl R 899 (1976).
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge: This
case was heard before me in Brooklyn, New York, on
December 10, 11, and 12, 1979.' The complaint was
issued on June 12, based on a charge filed on April 20 by
Local Union No. 1922, International Brotherhood of
Electrical Workers, AFL-CIO, herein called the Union. 2
The basic issues raised by the complaint, which alleges
that Alco Venetian Blind Co., Inc., herein called Re-
spondent, violated Section 8(a)(1) and (5) of the National
Labor Relations Act, as amended, are as follows; (1)
Whether the Union represented a majority of Respond-
ent's employees in an appropriate unit; (2) whether that
majority status was demonstrated to Respondent on
April 9, when, pursuant to a poll, the employees alleged-
ly told Respondent that they wished to be represented
by the Union; (3) whether there was established, pursu-
ant to the poll, a bargaining obligation; (4) whether a
strike which ensued on April 9, and which ended on
Unless otherwise indicated all dates are in 1979.
2On April 11. the Union filed a petition for an election in Case 29-
RC-4542, which was withdrawn on June 14 On April 13, Respondent
filed a petition for an election in Case 29-RM-597, which was dismissed
on June 18 because of the issuance of the instant complaint.
1 2lh
ALCO VENETIAN BLIND CO., INC.
April 16, was an unfair abor practice strike; (5) whether
Respondent coercively interrogated employees in April;
(6) whether Respondent, in April, threatened employees
with plant closure if they joined or assisted the Union;
(7) whether Respondent, in April and July, promised or
granted to its employees wage increases and other im-
provements in their terms and conditions of employment
to induce them to refrain from joining or supporting the
Union; and (8) whether the unfair labor practices alleged
above were of such a nature so as to prevent the holding
of a fair and free election, thereby warranting the issu-
ance of a bargaining order.
Upon the entire record, including my observation of
the demeanor of the witnesses and after consideration of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation located at 190
East Hoffman Avenue, Lindenhurst, New York, where it
is engaged in the manufacture and sale of venetian
blinds. Annually, Respondent purchases goods and mate-
rials valued in excess of $50,000 which are delivered di-
rectly to it from points located outside the State of New
York. Respondent also, on an annual basis, sells and ships
products valued in excess of 50,000 to points located
outside the State of New York. Respondent admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
ofthe Act. 3
III. THE APPROPRIATE UNIT
At the outset of the hearing the parties agreed, and I
find, that all production and maintenance employees,
drivers, and installers employed by Respondent at its
Lindenhurst shop, exclusive of salesmen, office clerical
employees, guards, and all supervisors as defined in Sec-
tion 2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
The parties further stipulated that certain named em-
ployees totaling 19 in number who were employed as of
April 9 constitute the employees comprising the appro-
priate unit.
IV. THE UNION'S AUTHORIZATION CARI)S
The evidence establishes, and I find, that between
April 2 and April 9 a majority of the employees in the
appropriate unit signed authorization cards for the
Union. These cards unambiguously authorize and desig-
nate the Union as the employees' collective-bargaining
representative, and there was no evidence o' fraud, mis-
representation, or any other improper inducement which
:' At the hearing, RKcpt(IIii .IIInIc.I dtl it, aslls r to ialllitlt ti altllcg.
tio n eID.IIIII g ,l t,lg ,lll.l.l.. l 1o ali,,
would serve to invalidate the cards. I therefore find that
as of April 9 the Union had obtained valid authorization
cards from a majority of Respondent's employees in the
unit found to be appropriate.
V. THE ALLEGED UNFAIR LABOR PRACTICES
On April 6, employees of Respondent, at a meeting, 4
elected to go to the plant on Monday, April 9, with the
Union's representatives. It was agreed that they would
demand recognition at that time, and, if recognition was
denied, engage in an immediate strike in support of the
recognitional claim.
On April 9, employees along with Union Representa-
tives Joseph Faicco, Alfred Faicco, and Nick Lupo met
outside the plant where they waited for Respondent's
owners to arrive. At or about 8 a.m., Ronald and Al
Agresta arrived at the premises, and the union repre-
sentatives introduced themselves to Ronald Agresta by
the factory door. (Al Agresta proceeded into the plant.)
When told that the Union claimed to represent his em-
ployees, Ronald Agresta invited everyone into the plant
where they congregated at the lunch table on the pro-
duction floor. Although it is agreed that at this point a
demand for recognition was made and that the authoriza-
tion cards were tendered to Ronald Agresta,5 there is
substantial disagreement regarding what else occurred at
this meeting.
According to Union Representatives Joseph and
Alfred Faicco, when the cards were handed to Ronald
Agresta, he carefully examined each and every card,
after which he asked the employees, "[I]s this the union
you want." The union representatives testified that in re-
sponse to that question all the employees present an-
swered in the affirmative. They further testified that Al
Agresta then appeared, was given the cards, and also
asked if this was the union the employees wanted. Thes
stated that once again a chorus of voices answered affir-
matively and that all the employees stated vocally that
they wished to be represented by the Union. They also
testified that Al Agresta asked the employees if he
were aware that there was a venetian blind union which
could do better for them." The Faiccos testified that at
the conclusion of this transaction Ronald and Al Agresta
went to the office and that when Ronald Agresta re-
turned he stated that he would not recognize the Union
and told everyone to leave or go home. It is undisputed
that at this point most of the employees left the factory
and after a period of time commenced picketing.
4 I'hc rnietilg was held at he horle of Patrick Shine Shine rents an
aparinllcnil i hi. faltlhr-il-la's house His father-in-law is a shop steward
lfor the nion ain1 s, is h person , ho introduced Shine to the Union It
als ii, i11 .Ial . . Ihll IIn luion I o he strike ont April Ib Shine quit
ihe 'lpl oi KRepondclli .ll t ] itd thereafter ent to work for the same
.ilr;np;1 11i tr, hi tillhcr-Il-ls IS employed
: A.ordlllg t Jseph t .-lco. Ronald Agresta asked to see the cards
I stsl. Alfred :.;llcco and itticr witnesses called by the (ireneral
(mImIsc
1
Isilied Ilhat JIoseph Aiccal gae the cards to Ronald Agresta
rho did1 nll ui ,sk rt c, thenl I thlcrefor e dio not credit Joseph Fal.co oil
hl p ll
.... Lcrdlllg Ti, hc tciulnlot, (o Richard Krueger, Respondens fore
II .1 l i pt nlc I t ll ll llle represented ilhe niplosrees of Respolndent
At it Is 1i1 s..l .;1u h .,lrt R. spondnllll mtn,rlov ti its present loca-
t1, 11
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although both Joseph and Alfred Faicco testified that
all the employees stated that they wished to be repre-
sented by the Union when asked if this was the union
they wanted, they could not identify any specific em-
ployees who so indicated. The next witness presented by
the General Counsel, Patrick Shine, testified that a ma-
jority of the employees vocally indicated their support
for the Union. He stated, however, that in addition to
himself the employees who so indicated were Chris
Curcio, Gloria Ney, Tom Daniels, Roy Bachman, Bob
Allar, Paul Krueger, Joe Lossasso, and Glen Schweitzer.
Robert Allar, who was the next witness called by the
General Counsel, had great difficulty remembering the
meeting at the lunch table and had to be led before testi-
fying that Ronald Agresta even asked whether the em-
ployees wished to be represented by the Union. He final-
ly did testify that when the question was asked he said
yes, but did not know which of the other employees an-
swered affirmatively. The succeeding witnesses called by
the General Counsel, Roy Bachman and Thomas Dan-
iels, each testified that Ronald Agresta asked the employ-
ees if this was the Union they wanted. Bachman testified
that maybe half of the employees answered affirmatively,
and Daniels testified that only a couple of the employees
said yes.
With respect to the above incident, Respondent's wit-
nesses, Ronald Agresta and Richard Krueger, testified
that the Union demanded recognition, and that cards
were given to Ronald and Al Agresta, who looked at
some but not all of them. They further testified that
Ronald Agresta asked the employees if this was the
union they wanted and if they were aware that there was
a venetian blind union which could do better for them.
They testified that, except for one employee who nodded
her head in an affirmative manner, no other employees
verbally responded. They stated that, when the question
was asked, the employees remained silent and that it was
Joseph Faicco who said to the employees that they
should not listen and that the Union could get as good a
contract as any other union. They further testified that,
when the union representatives were told that recogni-
tion would not be accorded, Joseph Faicco stated that
Respondent was locking out the employees. They stated
that Ronald Agresta said in response that Respondent
was not locking out any employees and that they were
free to stay. At this point they agreed that the employees
left the factory with the union representatives and short-
ly thereafter commenced picketing. 7
The evidence is not in serious conflict concerning an
incident which occurred on Thursday, April 12. At or
about 4:30 p.m. of that day Ronald Agresta, Al Agresta,
and Richard Krueger left the plant to go home. As they
7 At the hearing the parties stipulated that, on April 9, 14 (of the 19
unit employees went on strike. It further was stipulated that two employ-
ees returned to work on Tuesday, April 10; that one employee returned
to work on Wednesday, April I that four employee, went back to work
on hursday. April 12; and that the strike terminated otl Monday. April
16. It is noted that Paul. Krueger and Patrick Shinie. who participated ill
the strike on April 9, voluntarily resigned from the Cmpaly thereafter
and have never resumed working for Respondent. I lie evidenlce also es-
tablihes that by Thursday, April 12, there were only fiour employeCes
who were engaged in picketing, these being Patrick Shille, Roy Iach-
manl. homas Daniels, and Glen Schweitzer.
were leaving, Alfred Faicco approached them in the
presence of two or three of the striking employees who
were standing behind him8 and stated, in substance, that
Respondent should recognize the Union. The credible
evidence establishes that Al Agresta became somewhat
agitated by this remark and stated that he would lock the
doors first. At this point the transaction ceased as Al
Agresta was calmed down by Ronald Agresta and Rich-
ard Krueger and they all left in their cars.
During the strike, Richard Krueger called Roy Bach-
man at home and asked if he would return to work.
Krueger is alleged to have asked Bachman why he was
out on strike, whereupon Bachman responded for "better
benefits." Krueger allegedly told Bachman at this point
that Respondent could not make any changes until the
Union was gone. Krueger is further alleged to have told
Bachman during another phone conversation during that
week that there would be a lot of changes when the
Union was gone. With respect to these allegations,
Krueger testified that he did speak to Bachman during
the week, that he told Bachman he was surprised that
the employees had gone out on strike, and that he fur-
ther told Bachman that if the employees were dissatisfied
they should have first spoken to the owners of the Com-
pany. Krueger denied, however, that he made any prom-
ises of benefits to Bachman. Bachman concedes that no
specific promises were made to him at any time.
Regarding the above conversation, I note that Bach-
man generally had great difficulty in remembering the
various transactions he was questioned about and on sev-
eral occasions counsel for the General Counsel found it
necessary to tender to Bachman his pre-trial affidavit for
the purpose of refreshing his recollection. In this regard
I note that the transactions which Bachman was called
upon to relate were neither numerous or excessively
complicated in nature. In short, I was not impressed with
Bachman as a witness. On the other hand, Richard
Krueger testified in a straightforward and candid
manner. Therefore, based on the above and my observa-
tion of the demeanor of these two witnesses, I credit
Krueger's version of the conversations described above.
It further was alleged that during the strike and on
April 16, Al Agresta violated Section 8(a)(1) of the Act
during the course of two conversations with Thomas
Daniels.9 According to the testimony of Daniels, he re-
ceived a phone call from Al Agresta, who stated that he
wanted to know what was going on. Daniels testified
that he said that the employees thought that Al Agresta
had been losing the power, that the shop was being run
by Herman Weiss, and that Weiss was not good to the
employees. Daniels stated that Al Agresta then said that
if Daniels wanted to come back to work he could and
that Al Agresta further said he was hurt by the strike.
Daniels testified that he returned to work on April 16
and had another conversation with Al Agresta. Accord-
' As noted abhove, most of the eniployees who had struck on April 9
had abanldoned the strike and returned to work by April 12.
! A the time of the strike Daniels, who was stipulated to be part of
the bargaining unit, was employed essentially as a leadman. After the
strike ended, and in May. Daniel's duties were more clearly defined and
it was agreed by the parties that he becaime a supervisor within the mean-
inig of the Act t Ihalt tme
1218
ALCO VENETIAN BLIND CO., INC.
ing to Daniels, he told Al Agresta that he was not sorry
for what he did (participating in the strike), and Al
Agresta responded by saying that he could not make any
promises because of the law, but that things would get
better and that changes would be made.
Al Agresta was not called as a witness by Respondent
so Daniel's testimony stands uncontradicted. I therefore
credit his testimony with respect to these conversations.
The General Counsel alleges that, after the strike
ended on April 16, Respondent unlawfully granted a
benefit to employees by eliminating a procedure whereby
certain employees were required to make records of the
amount of daily production. Respondent asserts, in sub-
stance, that the alleged change was a minor alteration in
the procedure for keeping track of production, that it
was made for efficiency reasons, that it either had no
impact or a negligible impact on the employees, and that
the change was not motivated by a desire to influence its
employees' support for the Union.
The evidence establishes that a procedure whereby
certain employees made a production count was initiated
in the fall of 1978 for the purpose of ascertaining wheth-
er an incentive wage system was feasible. It also was es-
tablished that, well before the Union commenced its or-
ganizing campaign, the idea for an incentive system was
dropped. Nevertheless, as a byproduct, the foreman,
Richard Krueger, realized that a count of production
was useful in keeping track of inventory and useful for
the purpose of ordering supplies. As a result, the proce-
dure whereby a few employees in the departments wrote
out a count of production was maintained.
According to the uncontradicted testimony of Richard
Krueger, at some point after the strike had ended, he re-
alized that it would be just as efficient to have the pro-
duction count reported to him orally and so, to this lim-
ited extent, the procedure was changed. It also is noted
that neither the original procedure nor the revised proce-
dure required much time or effort by the employees in-
volved and the production count in no way was or is
used to determine whether an employee is good or poor
in the performance of his or her duties.
During the first day of the hearing, the General Coun-
sel, apparently on the basis of some information he re-
ceived on the weekend preceding the hearing, amended
the complaint to allege that in July 1979 Respondent un-
lawfully granted a wage increase to its employees. In
support of this allegation, the General Counsel elicited
from two of his witnesses that they had indeed received
raises in July 1979. These witnesses further testified,
however, that they had previously received similar raises
in prior years during July. Whether or not the testimony
came as somewhat of a surprise to the General Counsel
is not known by me. Nevertheless, the General Counsel,
at the hearing, subpenaed Respondent's records, which
were produced on December 11, and introduced them
into the record. I do note in this regard that it is clear to
me that, prior to the time these records were offered in
evidence, the General Counsel had not examined them
and had not made any analysis of what these records dis-
closed.
In any event, the General Counsel argues in his brief
that the raises granted in July 1979 were disproportion-
ately larger than raises granted in 1977 and 1978. As
such, the General Counsel urges that these 1979 raises
therefore raise an inference that they were granted for
the purpose of dissuading employees from supporting the
Union.
Respondent's records establish that it has a practice of
granting wage increases to its employees in July of each
year. These records also establish that other raises had
been given at various times during the year to selected
employees in addition to the annual raises. It further is
noted that in July 1979, although the instant complaint
had been issued, the petitions for elections filed by both
the Union and Respondent no longer were pending. Ad-
ditionally, in July the strike which had commenced on
April 9 had long since been abandoned and there is no
evidence on this record that after the strike ended the
Union made any further efforts to organize the employ-
ees or that the employees continued to engage in union
activity.
Respondent's records do not disclose a clear pattern in
relation to wage increases. Thus, in none of the years in
question did Respondent grant a flat percentage wage in-
crease to all its employees. On the contrary, employees
received widely disparate increases during 1977, 1978,
and 1979, and although not explained it is reasonable to
assume that the disparities reflect, in some measure, merit
considerations. For example, the records establish that in
1977 wage increases ranged from a low of 7.1 percent to
a high of 26.1 percent. In 1978, wage increases ranged
from no percent to 30.4 percent. In 1979 wage increases
ranged from 7.7 percent to 18.8 percent.1 0
The General Counsel argues that the July 1979 wage
increases, on average, were higher in percentage terms,
than wage increases granted in 1977 and 1978. To a lim-
ited extent this is true.' But it also is true that averages
are not enlightening as to individual cases and the evi-
dence establishes that some employees received higher
increases in years preceding 1979. Moreover, it also is
true, and I take official notice, that the rates of inflation
have increased in each year from 1976 through 1979.
Even though in 1979 most, if not all, employees received
wage increases that were somewhat higher than in 1978,
the fact remains that in July 1979, most of the employees
received very small increases in terms of real income.
Indeed it can be fairly said that the wage increases grant-
ed in 1979 merely put Respondent's employees in the po-
sition of maintaining or slightly increasing their real
earnings. l 2
'o Appended hereto as Appendix B are tables showing wage increases
for 1977, 1978, and 1979. [Appendix B omitted from publication.]
I Although, on average, the wage increases for 1979 were larger than
those granted in 1978, they do not appear to be significantly different
than those granted in 1977
12 Statistics from the Bureau of Labol Statistics, U.S Department of
Labor, based on the consumer price indexes, show as follows From July
1976 to July 1977 inflation on a national basis was up 6.7 percent, from
July 1977 to July 1978 inflation on a national basis was up 7.7 percent,
and from July 1978 to July 1979 inflation on a national basis was up 113
percent
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. ANALYSIS
Relying on cases such as Sullivan Electric Company,
199 NLRB 809 (1972),13 the General Counsel asserts
that a bargaining obligation was established on April 9
when the employees were polled by Ronald and Al
Agresta and stated their desire to be represented by the
Union. On the other hand, Respondent argues that, even
though the evidence establishes that employees were
asked if this was the Union they wanted, the evidence
does not support the conclusion that a majority of the
employees did in fact evince their support for the Union.
On this issue I agree with Respondent.
In relation to the events of April 9, it seems to me that
the evidence is insufficient to establish that, pursuant to a
poll, a majority of the employees affirmatively stated to
Respondent their support for the Union. In a demonstra-
tion of the law of diminishing returns, the witnesses pre-
sented by the General Counsel testified, respectively,
that all, a majority, some, perhaps half, and finally a
couple of the employees vocally voiced their support for
the Union when asked if this was the Union they
wanted. Given the inconsistent versions of this event as
described by the General Counsel's own witnesses, the
corroborative version presented by the Respondent, and
my observation of the demeanor of the witnesses, I
credit the version as testified to by Ronald Agresta and
Richard Krueger. I therefore cannot conclude that in re-
sponse to the poll a majority of the employees in the unit
expressed their support for the Union so as to warrant
the conclusion that Respondent thereby incurred a bar-
gaining obligation. I further conclude that the fact that a
majority of the employees commenced picketing on
April 9 cannot be construed as eliminating all doubt of
majority support for the Union, thereby requiring Re-
spondent to bargain with the Union. In this respect the
Supreme Court in Linden Lumber Division, Summer &
Co. v. N.L.R.B., 419 U.S. 301 (1974), made it quite clear
that a bargaining order cannot be premised on the fact
that an employer has looked at union authorization cards
without a prior agreement to be bound by a card check,
and/or the fact that a majority of the employees engaged
in a strike and picketing in support of a union's recogni-
tional claim. 4
In the instant case I note that, although a majority of
the unit employees did engage in recognitional picketing
on April 9, a majority of these employees had abandoned
the strike by the end of the week. Therefore, if any infer-
ence can be drawn from the strike, it would be that the
Union's initial support was extremely transitory. It also
might be inferred from the abandonment of the strike
13 See also Direct Image Corporation of Aew York, a subsidiary of Direct
Image Corporation, 233 NLRB 365 (1977).
14 Indeed, to conclude that recognitional picketing by a majority of a
company's employees would, of itself, require a company to recognize
and bargain with a union would eliminate the company's right to invoke
Sec. 8(b)(7)C) of the Act, which precludes recognitional picketing con-
ducted for more than a reasonable period of time without a petition for
an election having been filed under Sec. 9 of the Act. See International
Hod Carriers Building and Common Laborers Union of America. Local 840,
AFL-CIO (Charles A. Blinne d/b/a C. A. Blinne Construction Company),
135 NLRB 1153, 1161, 1162 (1962), where the Board held that the provi-
sions of Sec. 8(b)7X(C) precluded recognitional picketing even when the
Union enjoyed majority support.
that Respondent had a substantial doubt as to the em-
ployee's continued support for the Union. It therefore
was not unreasonable for Respondent, as it did herein, to
respond to the Union's claimed majority status by filing a
petition for an election.
Regarding the events of April 9, 1 also conclude that
the poll does not rise to the level of coercive interroga-
tion in the circumstances of this case. I further conclude
that the strike which commenced on that date was an
economic, rather than an unfair labor practice strike.
With respect to the allegation that the poll constituted
unlawful interrogation, it is my opinion that, although
the poll was not conducted with the Struckness stand-
ards,'5 the circumstances would not justify the conclu-
sion that Respondent coerced, restrained, or interfered
with its employee's Section 7 rights. In this case the
Union's representatives were present when the poll was
conducted, the employees were unified in a group deter-
mined to strike if recognition was not immediately grant-
ed, and the Union's action of tendering the authorization
cards could reasonably be calculated to cause Respond-
ent to ask the assembled employees if this was the Union
they wished to have represent them. If one were to ask
who, subjectively, were the persons most inclined to feel
ill at ease as a result of this transaction, it would seem
more likely that it was the Agrestas and not the employ-
ees. In these circumstances I therefore conclude that the
poll on April 9 does not amount to coercive interroga-
tion within the meaning of Section 8(a)(l) of the Act.
Bushnell's Kitchens, Inc., 222 NLRB 110 (1976).
Regarding the allegation that the strike on April 9 was
an unfair labor practice strike, this contention must rest,
at least insofar as the strike's commencement, on whether
Respondent had unlawfully refused to recognize and bar-
gain with the Union. This is so because the motivation
for the strike clearly was to obtain recognition. As I
have previously concluded that Respondent did not
commit an unfair labor practice by refusing to recognize
the Union on April 9, it therefore follows that the strike
could not have been caused by Respondent's unfair labor
practices. I further find that the strike was not converted
to an unfair labor practice strike at any subsequent time.
Although it is clear that on April 12 Al Agresta told Al
Faicco in the presence of a few employees that he would
close the plant before recognizing the Union, the evi-
dence is insufficient to warrant the conclusion that the
strike was prolonged by this statement. In fact, by the
time this statement was made, most of the striking em-
ployees had already returned to work and the strike
ended on April 16.
As noted above, the evidence establishes that on
Thursday, April 12, Alfred Faicco approached Al
Agresta at the picket line and told him that Respondent
should recognize the Union. In response, Al Agresta
stated that he would close the doors first. Although the
statement was directed to the Union's representative and
not to employees, the fact remains that some employees
were present when the statements were made and they
did overhear the colloquy between the two men. As
' Strucknes Construction Co., Inc., 165 NLRB 1062 (1967).
1220
ALCO VENETIAN BLIND CO., INC.
such, I conclude that the statement of Al Agresta was
violative of Section 8(a)(1) of the Act as it was made in
the presence of employees. Sullivan Surplus Sales, Inc.,
152 NLRB 132, 148 (1965).
I do not conclude, however, that the alleged state-
ments made to Thomas Daniels and Roy Bachman
during the strike are violative of the Act. As to the con-
versation between Bachman and Foreman Richard
Krueger, I credit Krueger's testimony, and, based there-
on, find nothing in his statements which, in my opinion,
can be construed as interrogation, unlawful solicitation of
grievances, or promises of benefits.' 6 Similarly, nothing
in the phone conversation between Daniels and Al
Agresta during the week of the strike can reasonably be
argued to be violative of the Act. In essence, Al Agresta
merely asked Daniels what was going on and further
asked Daniels if he would return to work. Daniels was
the one who volunteered the reasons why the employees
were dissatisfied and why they had gone on strike. At no
time during this conversation were any promises made
by Agresta to Daniels, nor was Daniels interrogated.
With respect to the conversation between Daniels and
Al Agresta on April 16, the testimony of Daniels was
uncontradicted and, therefore, is credited. In this in-
stance, the evidence discloses that, athough Al Agresta
did tell Daniels that he could not make promises, he
went on to say that things would get better and that
changes would be made. In my opinion this statement,
while rather vague in nature, does constitute a promise
of benefits in violation of Section 8(a)(1) of the Act.
Xidex Corporation, 238 NLRB 1208 (1978); Hubbard Re-
gional Hospital, 232 NLRB 858, 870 (1977); Federal
.4larm, 230 NLRB 518, 527 (1977).
The General Counsel further alleges that Respondent
unlawfully granted benefits to employees in order to
induce them to withhold their support for the Union. In
substance, he alleges two benefits being granted: (I) the
elimination of the production count and (2) the July 1979
wage increases.
In reference to the production count I do not believe
that the evidence establishes that any significant change
was in fact made when Respondent changed its proce-
dures for keeping track of its inventory. Nor do I con-
clude that this "change" was made to influence the em-
ployees. As I have described above, the original proce-
dure for counting production was hardly onerous on the
employees who did this operation and the change from
making a written to an oral report is, in my judgment,
insignificant. Further, the evidence convinces me that
this change was made purely for efficiency reasons when
it was realized that an oral report would do just as well
as a written report. I therefore conclude that this slight
16 The mere fact that Krueger told Daniels that he was surprised that
the employees had struck and that if they were dissatisfied they should
have first gone to see the owners does not in my opinion amount to an
unlawful solicitation of gnevances. In Uraco Incorporated, 216 NLRB 1, 2
(1974), the Board stated:
However, it is not the solicitation of grievances itself that is coervice
and violative of Section 8(a( I), but the promise to correct grie -
ances or a concurrent interrogation or polling about union sympa-
thies that is unlawful; the solicitation of grievances merely raises an
inference that the employer is making such a promise, which infer-
ence is rebuttable by the Employer
modification in Respondent's procedures for keeping
track of inventory was not motivated in any unlawful
manner, and I shall recommend that this allegation be
dismissed.
I am also unpersuaded that the July 1979 raises were
granted for the purpose of dissuading employee sympa-
thy or support for the Union. The July wage increase
was granted at that time because it had been established
company policy to grant wage increases each July. As
such, the mere fact that wage increases were given at
this time can hardly support an inference of illegality.
Starbright Furniture Corp., 226 NLRB 507, 510 (1976);
Gould, Inc., 221 NLRB 899, 906 (1975).
The General Counsel nevertheless argues that the July
1979 wage increases were sufficiently higher than raises
given in either 1977 or 1978, thereby warranting the in-
ference that the size of the raises was designed to im-
properly influence employees. In this connection, the
Board has held, for example, that unusually large wage
increases given prior to an election or at the time when a
Union was about to commence a strike can give rise to a
rebuttable inference of unlawful motivation. San Lorenzo
Lumber Company, 238 NLRB 1421 (1978); Colonial
Haven Nursing Home. Inc., 218 NLRB 1007 (1975); The
Savings Bank Co., 207 NLRB 269 (1973). In such cases,
however, and absent direct evidence of unlawful motiva-
tion, it must be shown that the wage increases were dis-
proportionately large and that they were timed to influ-
ence employee union activity. San Lorenzo Lumber Com-
pany, supra; Summitville Tiles. Inc., 190 NLRB 640, fn. 1
(1971).
In the present case I do not believe that the General
Counsel has shown that either the timing of the raises
was suspicious or that the amounts given were dispro-
portionately large. As to timing, I have already pointed
out that wage increases normally are given in July.
Moreover, apart from the fact that the instant complaint
was pending, no election was pending, there was no
strike in progress or contemplated, and in fact, there is
no evidence of any union activity occurring at or about
the time the raises were given. 7
The evidence also does not convince me that the size
of the July 1979 increase was disproportionate in com-
parison to wage increases given in previous years. In this
respect, the evidence does not, in my opinion, establish
any clearly defined pattern of wage increases from year
to year. The Company's records indicate a wide dispar-
ity of wage increases granted to employees in any given
year and also shows that some employees received
higher wage increases in 1977 than in 1979. To the
extent that the bargaining unit employees received some-
what higher raises in 1979 than in 1978, it seems to me
that the most probable reason for this was the increasing
rates of inflation that we have all felt in each year from
7 In Sigo Corporation, 146 NLRB 1484 (1964), the Board held that
promises of benefits made I day after a union had withdrawn its petition
for an election were not violative of the Act See also Tennessee Hand-
bags. Inc., 179 NLRB 1045 (1969). Cf. M Restaurants Incorporated. d/b/a
The Mandarin, 221 NLRB 264 (1975), where wage increases were held
unlawful In that case, even though the union had withdrawn its petition
for an election, the employer was aware that the union was continuing its
organizing campaign.
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1976 to the present. It therefore seems to me more rea-
sonable to infer that the 1979 raises reflected the higher
rate of inflation as of July 1979 than a design to improp-
erly influence employees. Indeed, when one takes into
account the inflation rate extant in this country as of that
time, it is evident that the employees received very small
increases in terms of real wages.
Based on the above, it is my conclusion that the Gen-
eral Counsel's allegation relating to the July 1979 wage
increase lacks merit and I shall recommend that it be dis-
missed.
The General Counsel finally argues, in the alternative,
that an 8(a)(5) finding should be made based on a Gissel
theory. In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 613-615 (1969), the Supreme Court set forth certain
standards relating to bargaining orders as follows:
1. A bargaining order may be granted even in the ab-
sence of an 8(a)(5) violation where an employer's unfair
labor practices are "outrageous" and "pervasive."
2. A bargaining order may be granted "in less extraor-
dinary cases marked by less pervasive practices which
nonetheless still have a tendency to undermine majority
strength."
3. A bargaining order is not appropriate in cases in-
volving minor or less extensive unfair labor practices
"which, because of their minimal impact on the election
machinery, will not sustain a bargaining order."
In the instant case, it is my conclusion that the only
unfair labor practices chargeable to Respondent are the
two statements made respectively on April 12 and April
16. The first of these was the statement made by Al
Agresta to Alfred Faicco to the effect that he would
close before recognizing the Union. The other was the
rather vague promise to Thomas Daniels that changes
would be made and things would get better. The first of
these statements is without doubt the more serious inci-
dent. Nevertheless, I note that the statement was not di-
rected to employees, but was an extemporaneous re-
sponse made to Alfred Faicco outside the plant. Indeed,
if no employees had been present, this short conversation
between Al Agresta and Alfred Faicco would not be
violative of the Act. Further there is no evidence that
this statement was transmitted to the other employees of
Respondent and there is no evidence of any similar
threats made at any other time.
On balance, it is my opinion that the two statements,
while violative of the Act and requiring a traditional
remedy, are essentially isolated in nature and not of a
kind, in the circumstances of this case, to warrant the
conclusion that a free and fair election cannot be held. I
therefore conclude that a bargaining order is not re-
quired or appropriate to remedy the violations found
herein.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent, by Al Agresta, violated Section 8(a)(1)
of the Act by promising benefits to its employees for the
purpose of persuading them to withhold their support for
the Union.
4. Respondent, by Al Agresta, violated Section 8(a)(1)
of the Act by telling a union representative in the pres-
ence of employees that he would close the plant before
recognizing the Union.
5. Except to the extent as found above, Respondent
has not violated the Act in any other manner.
6. The unfair labor practices found affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
As noted above, I have concluded that a bargaining
order is not warranted in this case.
Upon the foregoing findings of fact, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER l 8
The Respondent, Alco Venetian Blind Co., Inc., Lin-
denhurst, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Promising benefits to its employees to induce them
to refrain from joining, assisting, or supporting Local
Union No. 1922, International Brotherhood of Electrical
Workers, AFL-CIO, herein called the Union, or any
other labor organization.
(b) Threatening to close its plant before it would rec-
ognize the Union, or any other labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing any of its employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business copies of the attached
notice marked "Appendix A."' 9 Copies of said notice,
on forms provided by the Regional Director of Region
29, after being duly signed by an authorized representa-
tive of Respondent, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
'8 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
'1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a judgment of the United States Court of appeals enforcing an
order of the National Labor Relations Board."
1222
ALCO VENETIAN BLIND CO., INC.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise benefits to our employees
for the purpose of persuading them to withhold
their support for Local Union No. 1922, Interna-
tional Brotherhood of Electrical Workers, AFL-
CIO, or any other labor organization.
WE WII. NOT threaten to close our plant before
we would recognize the Union, or any other labor
organization.
WE WlI.L NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them under
Section 7 of the National Labor Relations Act, as
amended.
ALCO VENETIAN BI.IND Co., INC.
1223