Alfred M. Lewis, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1960

127 N.L.R.B. 1491 (N.L.R.B. 1960)

ORANGE PREMIUM STAMPS , ETC. 1491
therefore recommended that the Respondent be ordered to cease and desist from in
any manner infringing upon the rights guaranteed to its employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Oil, Chemical and Atomic Workers International Union , AFL-CIO, and Local
4-245, Oil, Chemical and Atomic Workers International Union, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of the Act.
2. By discriminating in respect to the hire of R. D. Minnich and B . W. Dellinger,
thereby discouraging membership in Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO, and its Local 4-245, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By the foregoing conduct, and by interrogating employees in respect to their
union membership, activities , and desires , and by unilaterally granting wage in-
creases to its employees without notification to or consultation with Oil, Chemical
and Atomic Workers International Union, AFL-CIO, and its Local 4-245, and by
its sponsorship and support of a petition to decertify or reject said Union as the
representative of its employees , Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights guaranteed in Section 7 of the
Act, and thereby the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)( I) of the Act.
4. The General Counsel has not sustained the burden of proof of the allegations
contained in paragraphs numbered 6 and 7 of the complaint in respect to O. S.
Wiggins
5. The aforesaid unfair labor practices affect commerce within the meaning of
the Act.
[Recommendations omitted from publication.]
Orange Premium Stamps ( Division of Alfred M . Lewis , Inc.)'
and Local 542, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, Inde-
pendent. Case No. 21-CA-3607. June 24,1960
DECISION AND ORDER
On November 20, 1959, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices 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. Thereafter, Respondent and the
General Counsel filed exceptions to the Intermediate Report and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Leedom
and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.2
'At the hearing the name of the Respondent was corrected to read as above.
2 Respondent excepts to the Trial Examiner' s refusal to admit into evidence a "Log" or
a series of notations made by Thomas Puffer of his telephone conversations with certain
127 NLRB No. 169.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and entire record in this
case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, with the following additions and
modifications.
1. We agree with the Trial Examiner that the Respondent's failure
to recognize and to bargain with the Union was not predicated on a
good-faith doubt of the Union's majority status, but that it reflected,
rather, a negation of the collective-bargaining obligations imposed on
it by the Act. However, while the Trial Examiner concludes that the
consequent violation of Section 8 (a) (5) and (1) of the Act is estab-
lished as of June 10, 1959, we are persuaded that the record
affirmatively establishes such violation at least as of May 26,1959.
Thus, as is set forth in more detail in the Intermediate Report, the
majority of the employees comprising an appropriate unit first author-
ized the Union to represent them on or about April 21, 1959,3 and
reaffirmed their authorization to the Respondent directly, following
Beckley's unlawful conduct, on or about May 15, of a poll among them
to determine their desires. Thereafter, on May 26, 1959, the Respond-
ent, acting through Altman, offered the employees pay increases and
other inducements if they "would forget about the Union." 4 When
they refused to do so, Respondent nonetheless continued in its failure
to recognize and to negotiate with the Union and, in protest, the
employees went on strike on June 10, 1959. On June 12, 1959, the Re-
spondent filed a petition with the Board (Case No. 21-RM-561)
individuals and of certain other events he deemed important . The Respondent contends
inter alma that this "Log" was admissible as evidence of the facts contained therein under
exceptions to the hearsay rule governing business records or records of past recollection.
This exception has no merit as the witness testified that he was able to recall far more
than was contained in this memorandum as to matters here relevant , and he did , in fact,
testify on such matters independently after refreshing his recollection from the records.
In these circumstances , we find that the Trial Examiner's ruling neither constituted an
abuse of discretion nor otherwise prejudiced the Respondent 's presentation of its case.
Cf. J G. Braun Company , 126 NLRB 368.
3 We agree with the Trial Examiner that Altman ' s signing of an authorization card on
April 21 does not support the Respondent's claim that the majority status of the Union
was tainted with supervisory influence . Indeed, the Respondent ' s claim to the contrary
is squarely contradicted by the fact that the employees affirmatively resisted the coercive
and unlawful attempts of Altman , subsequent to her designation , to bring about their
defection , and that in protest to the Respondent 's failure to recognize and bargain with
their chosen representative , went so far as to strike.
4 While we find, in agreement with the Examiner , that Altman 's statements to the
employees as of that date support the complaint , we do not adopt the Examiner 's addi-
tional reliance on "Beckley ' s attempts at the May 26 luncheon with Altman to have her
induce [the employees ] to withdraw from the Union " in sustaining the alleged violations.
The testimony of the General Counsel ' s witnesses concerning the alleged conversation be-
tween Beckley and Altman do not affirmatively support a conclusion that Beckley gave
Altman specific instructions to make the employees the offers we find to be in violation
of the Act . Beckley's version of the conversation at that luncheon does not support such
a conclusion , and the testimony of the other witnesses concerning the conversation was
clearly hearsay . Of course , so far as the Respondent 's liability for Altman's coercive
attempts is concerned , it is immaterial whether Altman acted on her own or was acting
under specific instructions from higher management officials . It is clear as the Trial
Examiner found that Altman is a supervisor within the meaning of the Act.
ORANGE PREMIUM STAMPS, ETC. 1493
stating among other things that the Union requested recognition on
May 25, 1959, and that Respondent had refused the request. The
petition was dismissed by the Regional Director.
As the Trial Examiner properly points out, the Respondent's
affirmative effort to deal directly with the employees on May 26, 1959,
and its seeking to obtain their defection from the Union, both con-
stitute conduct in clear derogation of the requirements of Section
8(a) (5) and (1) of the Act, and plainly exposed the Respondent's
underlying purpose in refusing to recognize the Union as being to
gain time in which to undermine the Union and to dissipate its
strength. In these circumstances, and in light of the Respondent's
clear admission that there was an outstanding union request for recog-
nition as of May 26, we find that on May 26, 1959, and at all times
thereafter, the Respondent failed and refused to bargain collectively
with the Union, thereby violating Section 8 (a) (5) and (1) of the Act.
We find, further, that the Respondent's polling of the employees
on or about May 15, 1959, concerning their designation of the Union,
and its attempts on May 26 to induce them to repudiate it as their
representative and to deal directly with Respondent, constituted, in
the circumstances, conduct independently violative of Section 8 (a) (1)
of the Act.
2. We also agree with the Trial Examiner that the employees who
went on strike on June 10, 1959, did so in protest to the Respondent's
unlawful failure and refusal to bargain with their representative, and
that, accordingly, they are unfair labor practice strikers entitled to
reinstatement upon request.
As appears more fully in the Intermediate Report, the Respondent
on June 11, 1959, wrote to each of the striking employees requesting
their return to work by June 15, 1959, notifying them that, if they did
not do so, the Respondent would hire replacements. The Trial Ex-
aminer did not find this request to be an unfair labor practice and the
General Counsel now excepts. However, our examination of this letter
does not persuade us that it was intended as a threat to discharge the
striking employees for their activity or that it otherwise exceeds the
permissible bounds of employer communication to strikers.' We there-
fore reject the General Counsel's contention that such letter further
supports the alleged violations of Section 8 (a) (5) and (1) of the Act.
3. In considering the terms of the remedial order, we note the Gen-
eral Counsel's request that the cease-and-desist provisions of the order
recommended by the Trial Examiner be expanded to enjoin the repeti-
tion of each of the acts independently violative of the Act. We find
merit in this request, and we shall frame our Order accordingly.
c Editorial "Si Impartial,' Inc., et al., 123 NLRB 1585. Cf. The Texas Company,
93 NLRB 1358, 1360.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Orange Premium
Stamps (Division of Alfred M. Lewis, Inc.), San Diego, California,
its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Union as the exclusive
representative of all the employees at the Respondent's San Diego,
California, stamp redemption facility, excluding supervisors as defined
by the Act.
(b) Polling or interrogating its employees as to whether they desire
to be represented by the Union; offering them pay increases or other
benefits to induce them to repudiate the Union or to refrain from
engaging in union activities; or in any like manner interfering with,
restraining, or coercing its employees in the exercise of the rights to
self-organization, to form labor organizations, to join or assist the
Union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of mutual aid or protection as guaranteed
in Section 7 of the Act, and to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all the employees in the appropriate unit, and
embody any understanding reached in a signed agreement.
(b) Offer to Lillian B. Hermann, Violet L. Munson, and Joretta
Lee Nunley, upon their unconditional application on the termination
or abandonment of the strike, immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole
for any loss of wages they may have suffered by reason of Respondent's
discrimination against them, dismissing if necessary any persons hired
by Respondent on or after June 10, 1959, who were not employed at
Respondent's San Diego, California, stamp redemption facility on
that date.
(c) Preserve and, upon request, make available to the Board and its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary and useful to determine the amount of
ORANGE PREMIUM STAMPS, ETC. 1495
backpay due and their right of reinstatement under the terms of this
Order.
(d) Post at its facility in San Diego, California, copies of the notice
attached hereto marked "Appendix." 6 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall,
after being duly signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
0In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
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, we hereby notify our employees that :
WE WILL NOT interfere with the Union's efforts to organize our
employees, or refuse to bargain with the Union as the exclusive
representative of the employees in the above-described bargaining
unit, or in any like 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 Local 542, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Independent, or any other labor organiza-
tion, 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, or to
refrain from any and all of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Dis-
'closure Act of 1959.
WE WILL NOT discriminate in regard to hire or tenure of em-
ployment or any term or condition of employment against any
employee because of membership in or activity on behalf of any
labor organization, or poll our employees as to whether they desire
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be represented by the above-named Union, offering them pay
increases or other benefits to induce them to repudiate the Union
or to refrain from engaging in union activity.
WE WILL bargain collectively, upon request, with Local 542,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Independent, as the exclusive repre-
sentative of all employees in the bargaining unit described herein,
with respect to grievances, labor disputes, wages, rates of pay,
hours of employment, and other conditions of employment, and,
if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All our San Diego, California, stamp redemption facility
employees, exclusive of all supervisors as defined by the
National Labor Relations Act.
WE WILL offer to Lillian B. Hermann, Violet L. Munson, and
Joretta L. Nunley, upon their unconditional application on termi-
nation or abandonment of the strike, immediate and full rein-
statement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay which they may have
suffered commencing from a date 5 days after the date of their
applications to the date of our offer of reinstatement, dismissing,
if necessary, any persons hired at our San Diego, California,
facility on and after June 10, 1959.
All our employees are free to become or remain members of the
above-named Union, or any other labor organization, except to the
extent that this right may be affected by an agreement in conformity
with Section 8(a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
ORANGE PREMIUM STAMPS (DIVISION
OF ALFRED M. LEWIS, INC.),
Employer.
Dated---------------- 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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Local 542 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, Independent , herein called the
Union, the General Counsel of the National Labor Relations Board, herein
respectively called the General Counsel' and the Board , through the Regional
1 This term specifically includes counsel for the General Counsel appearing at the
hearing.
ORANGE PREMIUM STAMPS, ETC. 1497
Director for the Twenty-first Region (Los Angeles, California), issued a complaint,
dated September 10, 1959, against Orange Premium Stamps (Division of Alfred M.
Lewis, Inc.),2 herein called Respondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations
Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the charge, complaint, amendment to complaint, together with notice
of hearing thereon, were duly served upon Respondent and the Union.
Specifically the complaint, as amended, alleged that: (1) Since on or about April
23, 1959, Respondent, although requested to do so, has refused to bargain collec-
tively with the Union, the duly designated bargaining representative of Respondent's
San Diego facility employees; (2) Respondent, by engaging in certain other named
acts and conduct, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act; and (3) because of Re-
spondent's unfair labor practices, its San Diego facility employees have been on
strike since on or about June 10, 1959.
Respondent duly filed an answer denying the commission of the unfair labor
practices alleged.
Pursuant to due notice, a hearing was held at San Diego, California, on September
30 and October 1, 1959, before the duly designated Trial Examiner. All parties
were represented by counsel and participated in the hearing. Full opportunity was
afforded the parties to be heard, to examine and cross-examine witnesses, to intro-
duce evidence pertinent to the issues, to argue orally on the record at the conclusion
of the taking of the evidence, and to file briefs on or before October 23, 1959. Briefs
have been received from the General Counsel and from counsel for Respondent
which have been carefully considered.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Respondent, a California corporation, has its principal offices and place of business
at Riverside, California, where it is, and during all times material was, engaged in
the sale of orange premium stamps and in the operation of stamp redemption
centers. During the 12-month period immediately preceding the issuance of the
complaint herein, Respondent shipped merchandise to points located outside of the
State of California valued in excess of $50,000.
Respondent operates a stamp redemption facility at San Diego, California, the
employees of which are the only ones herein involved, where it exchanges orange
premium stamps for merchandise.
Upon the above-admitted facts, the Trial Examiner finds that during all times
material Respondent was and now is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act
for the Board to assert jurisdiction over this proceeding.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
M. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; the refusal to bargain collectively
1. The appropriate unit
The complaint, as amended, alleges, the answer admits, and, the Trial Examiner
finds, that all Respondent's San Diego stamp redemption facility employees, exclusive
of supervisory personnel, constitute, and during all times material constituted, a unit
for the purposes of collective bargaining within the meaning of Section 9(b) of the
Act, with respect to grievances, labor disputes, rates of pay, wages, hours of employ-
ment, and other conditions of employment. The Trial Examiner further finds that
said unit insures to said employees the full benefit of the right to self-organization, to
collective bargaining, and otherwise effectuates the purposes of the Act.
2 At the hearing the name of Respondent was corrected to read as above.
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union's majority status in the appropriate unit
The Trial Examiner finds that, commencing with April 21, 1959,3 the unit found
appropriate consisted of Lillian Hermann and Violet Munson; commencing with the
forepart of May, the unit consisted of Hermann, Munson, and Joretta L. Nunley;
and commencing with the forepart of June, the unit consisted of Hermann, Munson,
Nunley, and Charles Lackey.
On behalf of the General Counsel there were offered and received in evidence
three cards, each being dated April 21 and respectively bearing the signature of
Hermann, Munson, and Nunley,4 authorizing the Union to represent the signers
thereof for the purpose of collective bargaining. The genuineness of the signatures
appearing upon said cards was proven by the testimony of the signers thereof.
The Trial Examiner finds that as of April 21, the two employees then in the
appropriate unit had selected and designated the Union as their collective-bargaining
representative. The Trial Examiner further finds that on April 21, the Union was,
and at all times thereafter has been, the duly selected and designated representative
of Respondent's employees in the unit heretofore found appropriate. Accordingly,
pursuant to Section 9(a) of the Act, the Union was and now is the exclusive repre-
sentative of all the employees in said unit for the purposes of collective bargaining
with respect to grievances, labor disputes, rates of pay, wages, hours of employment,
and other conditions of employment.
3. The refusal to bargain
a. The pertinent facts
About mid-April, Jack Rafn, the Union's organizer and business agent , called at
Respondent's San Diego facility and there discussed with Hermann, Munson, and
Gayle Altman, the last named being the manager of that facility and concededly a
supervisor within the meaning of Section 2(11) of the Act, the advisability of
aforesaid three persons joining the Union. No decision was reached at the
time by the said three persons.
On April 21, Rafn returned to the facility at which time Altman, Hermann, and
Munson signed cards designating the Union as their collective-bargaining
representative and handed the cards to Rafn.
Within 2 or 3 days after receiving the aforesaid authorization cards, Rafn tele-
phoned Robert Fox, who as "head man of the Los Angeles Food Council" had repre-
sented, in the past, Alfred M. Lewis, Inc., with which firm Respondent is affiliated, in
certain collective-bargaining negotiations with the Union, and told Fox that the
Union represented the majority of Respondent's San Diego stamp redemption facility
employees. Fox replied that he would get in touch with Paul Lewis, the president of
Alfred M. Lewis Inc., and then would communicate with Rafn.
Two or three days after the telephone call from Rafn to Fox, referred to
immediately above, Fox telephoned Rafn and stated that he, personally, would
come to San Diego on May 10 or 11, or would send a representative, to discuss
the matter. Rafn then stated that he was about to go on his vacation and that
Fox, or his representative, should meet with Cecil Nolley, the Union's secretary-
treasurer, who would be in charge of the situation during his absence.
Either on the day Fox told Rafn of the proposed meeting, or on the following
day, Rafn, accompanied by William Manos, the Union's business representative,
went to the facility and told Altman and either Hermann or Munson regarding
the proposed Fox-Nolley meeting.
On or about May 8, while Rafn was on vacation, Nolley received word from
the Los Angeles Food Employers Council that it no longer represented Respondent
and it was suggested that Nolley should get in touch with Leon Gyde, the San
Diego branch manager of Alfred M. Lewis, Inc., warehouse and grocery operations.
Whereupon, Nolley telephoned Gyde who stated that he knew nothing about being
authorized to represent the facility but would contact the main offices of Respondent
in Riverside, California.
A few days prior to May 15, word reached Paul Lewis and Mrs. Katherine
Beckley, Respondent's merchandise manager, whose duties include purchasing the
merchandise for, and the supervision of, Respondent's 24 permanent and 3 mobile
3 Unless otherwise specified all dates hereinafter mentioned refer to 1959
4 Nunley testified , and the Trial Examiner finds , that, although not hired by Respondent
until the first week in May , she dated her card "April 21" becaust the other two cards
were so dated.
ORANGE PREMIUM STAMPS, ETC. 1499
stamp redemption facilities , that a union was attempting to organize the San Diego
facility employees.
On May 15, with Lewis' knowledge, Beckley sent a letter , reading as follows, to
Altman, Hermann, Munson , and Nunley:
We have been asked by the Teamsters union No. 542 to negotiate for you
regarding wages. We are interested in knowing whether you want this. Please
sign and return to this office.
------------------------------
I wish to have the Teamsters Union negotiate for me for wages q
I do not wish to have Teamsters Union negotiate for me q
Krr BECKLEY.
The letters were received by Altman, Hermann , Munson , and Nunley at the San
Diego facility on May 16. After consulting with Manos, who suggested that they
indicate on the letters that they wanted to be represented by the Union so as to
"expedite negotiations that will be coming up ," each of the four persons to whom
the letters were addressed signed her respective letter, after indicating thereon that
she desired to be represented by the Union, placed the four letters in an envelope
addressd to Beckley, and mailed them on May 16.
On or about May 26, Beckley went to San Diego and lunched with Altman. During
the luncheon , discussion was had regarding the San Diego facility employees' union
adherence and the aforementioned May 15 letters wherein they indicated their
desire to be represented by the Union. The discussion regarding the Union con-
cluded with Altman remarking that there would be "no problem in changing" the
employees' minds about the Union, that Respondent "would have a retraction," that
she would inform the union representative on his next visit to the facility "Not to
bother them anymore or something like that," and with Beckley handing Altman
the employees ' union-designation letters. Discussion then turned to the question of
a general wage increase, the need for a stock boy because of increased business, the
possibility of the facility remaining closed on Mondays , the employees working
additional hours, nand such similar matters.
Upon Beckley's return to Respondent's Riverside, California, main offices, she
said to Lewis, "Mrs . Altman did not want the union . . . and she was speaking
for everybody , I assumed , but I didn't take it upon myself to question the girls
because this was not my job ," to which Lewis, in effect, commented, "I am happy
that you and Gayle had,a nice meeting."
Upon returning to the facility after lunching with Beckley on or about May 26,
Altman handed Hermann, Munson, and Nunley the union-designation letters which
they had signed on May 16. That same afternoon , Altman told Hermann and
Munson that she had been authorized by Beckley to tell "the girls" that thereafter
they would be given, provided "they would forget about the Union," (1) 8 hours'
overtime pay each week whether or not they worked overtime, (2) more time for
lunch, and ( 3) sick lease. After discussing the matter , Hermann and Munson told
Altman that Beckley's proposal "wasn't what we wanted, that it wouldn't be honest
to begin with and it just wasn't the way we wanted to get our raises."
Upon his return from his vacation on or about June 2, Rafn was given the four
union-designation letters. He thereupon called Fox and told him about the letters.
Fox replied that the mater was out of his hands. Rafn then telephoned Lewis but
was unable to reach him. He spoke, however, to Kingsbury Haeslet, Respondent's
warehouseman foreman or superintendent and with whom Rafn had discussed, on
previous occasions, personnel problems involving Alfred M. Lewis, Inc., employees,
and told Haeslet that he "wanted somebody to sit down and talk to." Haeslet replied,
to quote from Rafn's credible and undenied testimony, "He would definitely have
somebody contact me not later than that Wednesday (June 10) that [sic] would have
authority to sit down and negotiate and bargain."
On June 9, Nolley telephoned Lewis but did not reach him. The next morning,
June 10, Nolley received a telephone call from Respondent's Riverside main office,5
informing him that the San Diego Employees Association, herein called SDEA, had
been authorized to represent the Respondent. Thereupon, Nolley telephoned Winfield
H M. Swett, managing director of SDEA, but did not reach him. Later that day
Thomas Puffer, corporate secretary of SDEA, returned Nolley's call to Swett.
According to Nolley's credible testimony, the following telephone conversation was
had by him and Puffer on June 10: 6
5 Nolley testified that he believed Beckley called him.
e Puffer's version of this conversation is at variance with that of Nolley. After a very
careful scrutiny of the entire record in the case, all of which has been carefully read,
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I told him (Puffer) that since management had instructed [sic] him with the
power to represent them in labor relations , that I am sure management would
trust him in a cross check of the employees employed by the Orange Stamp
Redemption Center . I told him that I had cards and applications .. . . I told
I had . . letters that were sent out by management that I termed a ballot
letter that I would be more than happy to bring them to his office because there
was nothing to hide any more in secrecy because management was well aware
that the people wanted the Teamsters Union to represent them.
He said that that wasn't sufficient , that management insisted that they wanted
a National Labor Relations Board election. I told him we refused to go to a
National Labor Relation Board election.
About 3 p .m., on June 10, Rafn , accompanied by Manos, went to the facility and
informed Altman , Hermann , and Nunley (Munson being absent that day ) that the
Union "has been shifted around from one person to another and we were going
nowhere; and it was about time we took some action." Thereupon , Altman, Her-
mann , and Nunley, after discussing the matter with Rafn and among themselves,
voted to strike . The three named employees then and there struck. The following
day, Altman, Hermann , Munson, and Nunley established a picket line at the facility
which was still in existence at the time of the hearing.
Under date of June 11, Beckley wrote Hermann , Munson, and Nunley as follows: 7
As you know , on Wednesday , June 10, 1959, a Teamster official induced you,
by some means, to leave your job.
Let me give you some background on this situation. As you may or may not
know, we heard several conflicting stories as to whether or not the Teamsters
actually represented you folks. Therefore , we determined that the fairest way
to resolve the question was to provide you with the opportunity of expressing
your views in a secret ballot election . This secret ballot election would be con-
ducted by the National Labor Relations Board where you could privately decide
for yourself whether or not you wanted this union of truck drivers to represent
you. However, when the Teamsters were informed that we wanted to provide
you with the opportunity of voting in a secret election, they refused to cooperate
and persuaded you to leave your job. Let me be very frank about this matter.
We don 't like this business of Teamster threats and force any more than you
do. However , we must operate a Stamp Center. You have done an excellent
job and we would like to have you continue working for us. Therefore, we ask
you to return to work on Monday morning, June 15, 1959. However, your
failure to do so will force us to replace you.
Please feel free to call me if I can be of any help in this matter.
On June 12 , Respondent filed a petition with the Board (Case No . 21-RM-561)
requesting the Board to resolve the question of representation of the four San Diego
facility employees , exclusive of "supervisors and guards as defined by the Act." Said
petition alleges, among other things , that the Union had requested to be recognized
as the bargaining representative for the persons involved on May 25 , and that Re-
spondent declined to do so on June 10.
On or about July 1, Nolley telephoned Lewis and said, to quote from Nolley's
credible and undenied testimony ,8 "We were not mad at anyone and why can't he
and I sit down and settle this matter?" Lewis replied, to further quote Nolley, "He
knew nothing about this sort of thing, and he had arranged for Mr. Puffer of the
San Diego Employers Association to represent him in this matter , and I would have
to do business with Mr. Puffer." That same day, Nolley telephoned Puffer , informed
him that Lewis had suggested that he call him because he was representing Re-
spondent , and requested that they get together . Puffer replied , according to Nolley's
credible testimony , that he had not spoken to Lewis recently about the matter but
would get in touch with him; that he had told Lewis , after some discussion had been
had regarding the above -mentioned union -designation letters, there was no doubt
that the Union represented the employees involved "because they were definitely
on the street"; 9 that he raised , for the first time, the question as to whether Altman
and parts of which have been reread and rechecked several times , and being mindful of
the contentions of the parties with respect to the importance which each has placed upon
the credibility problems here involved , the Trial Examiner finds Nolley's version of what
was said during this telephone conversation to be substantially in accord with the facts.
The Trial Examiner further finds that the question of the inclusion of Altman in the
bargaining unit , or her exclusion therefrom , was not discussed at that time.
7 Altman received a letter , on or about June 11, discharging her.
s Lewis was present throughout the entire hearing but was not called as a witness.
9 Meaning on strike and picketing.
ORANGE PREMIUM STAMPS, ETC. 1501
should be excluded from the appropriate unit; and that, after being informed that
"no problem" would arise regarding Altman's exclusion from the unit if her duties
were exclusively supervisory, he said he would contact Lewis and then get in touch
with the Union.
b. Concluding findings
The right of employees under Section 7 of the Act "to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing . . . [and] to refrain from any or all such activities" is effectively implemented
by Section 8(a)(1) and (5). These provisions forbid an employer to "interfere
with, restrain, or coerce employees in the rights guaranteed in Section 7," and
likewise prohibit an employer from refusing to recognize or bargain collectively
with the majority representative of his employees in the appropriate unit. The
employer's economic hold over his employees, which inheres in their relationship,
is thereby neutralized in matters of organization and representation, which are
particularly the concern of the employees. Interdiction against employer intrusion
in such matters is essential if employees are to be free from the coercive influence
of their employer, for employees are, as the courts have repeatedly and uniformly
held, not insensitive to the advantages in their employment that they consider are
likely to flow from their employer, nor to the disadvantages which may attend their
choice of representative opposed by their employer. And for the same reason, em-
ployees cannot be expected to derive the full benefit from their protected right of
self-organization and to the selection of a representative of their own choosing if
they believe, "from circumstances which their employer created or for which he
was fairly responsible," 10 that their representative, however chosen, is subject to the
employer's approval or disapproval.
Uncontroveited credited evidence conclusively establishes that as of April 21, the
day when Altman, Hermann, and Munson had given Rafn their union-designation
cards, the Union, in fact, had been selected and designated by all the employees in
the appropriate unit as their collective-bargaining representative. Any conceivable
doubt on the part of Respondent as to the Union's majority status should have been
completely dissipated upon the receipt by Beckley of her May 15 union-designation
letters which Altman, Hermann, Munson, and Nunley signed on May 16. Under
those circumstances, Respondent was under a statutory duty to recognize the Union
as the exclusive representative of the employees in the appropriate unit and to deal
with it as such representative. However, the credited evidence, as summarized
above, most of which is uncontroverted, discloses that instead of fulfilling its obli-
gations under the Act, Respondent engaged in serious unfair labor practices designed
to destroy the Union's majority status and thus thwart the employees' self-organiza-
tion and collective-bargaining activities. For example: (1) Beckley's attempts at
the May 26 luncheon with Altman to have her induce Hermann, Munson, and
Nunley to withdraw from the Union; (2) Altman's May 26 offers of pay increases
and other inducements if the employees would repudiate the Union; and (3) Beckley's
polling the employees as to whether they had designated the Union to represent them
as their collective-bargaining representative. The obvious purpose of these activities
was the attempted dissipation of the Union's majority status and to impress upon the
employees that continued union adherence was a fruitless gesture, would achieve them
naught, and they could rely upon their Employer's unilateral generosity to attain
their needs. By such conduct, Respondent not only violated Section 8(a)(1) of the
Act,11 but also violated Section 8(a) (5) thereof, for, as part of his obligation to
bargain, an employer must notify the collective-bargaining representative of his
employees of any contemplated changes in the terms and conditions of employment
in order to give that representative an opportunity to bargain with respect to such
changes 12 -
Respondent's contention with respect to its refusal to recognize and bargain
collectively with the Union was that it doubted the Union's majority status, based
solely upon the fact that Altman had signed a union-designated card and had par-
ticipated in discussion regarding the Union with Hermann, Munson, and Nunley,
the Union thereby did not represent an uncoerced majority. Whatever may be said
of that argument the fact remains there is absolutely no evidence that Altman had
10 N.L R B. v. Link-Belt Company, 311 U.S. 584, 588.
11 Cold Spring Granite Company, 101 NLRB 786; F. M. Reeves and Sone, Inc., 121
NLRB 1280.
'2 N L.R.B. v. Crompton-Highland Mills, Inc, 337 U S. 217; May Department Stores,
d/b/a Famous-Barr Company V. N.L.R.B., 326 U.S. 376; N.L.R.B. v. Parma Water Lifter
Co., 211 F. 2d 258 (CA. 9).
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked Hermann, or Munson, or Nunley to join the Union; had asked them to sign
a union authorization card; or had asked them to sign Beckley's May 15 union
designation letter. For aught this record shows, the contrary might be true; that
is, the three named, or one of them, might have solicited Altman to join the Union,
to sign a union authorization card, or sign Beckley's May 15 union designation
letter.
Furthermore, Respondent's conduct and activities following the Union's initial
demand for recognition reveal Respondent's want of good faith in questioning the
Union's majority status. The fact that Respondent, upon being advised through
the medium of Beckley's May 15 union designation letters that all the employees
in the appropriate unit had selected and designated the Union as their bargaining
representative, embarked upon a campaign to destroy employee support for the
Union through means proscribed by the Act, clearly demonstrates that its refusal
to bargain and its filing of the petition seeking a Board election were not predicated
upon a good-faith doubt of majority but rather a desire to gain time in order to take
action to dissipate the Union's majority status. The stratagem of avoiding collec-
tive bargaining by means of unfair practices deliberately contrived to preclude the
necessity for such bargaining has been uniformly condemned by the courts.13
The foregoing also disposes of Respondent's claim that it was entitled to await
the outcome of the representation proceeding initiated on June 12. Normally, the
Board does not hold an employer in violation of the Act if he in good faith questions
the union's claim of majority status, and asks to have the matter determined by a
secret election, since that is a conclusive means of establishing the extent of a
union's strength. But here Respondent, upon learning of the Union's majority
status, resorted to serious unfair labor practices, the effect of which would have
prevented the election from ,resolving the very issue of which Respondent allegedly
was in doubt. Respondent thereby destroyed the efficacy of the very method it had
insisted upon by its refusal to recognize and deal with the Union. Respondent's
conduct before and after June 12 clearly supports a finding that its demand for an
election was, in fact, a rejection of the principles of collective bargaining. Re-
spondent thereby transgressed the bounds of permissible conduct to a sufficient extent
to warrant a finding that its refusal to bargain was as ill intentioned as its other
actions.14
The courts, furthermore, have repeatedly and uniformly held that where, as here,
an employer withholds recognition from a union which is entitled to it under the
Act until its status is established by an election, and at the same time proceeds to
undermine and destroy the union, it may be reasonably concluded that the employer's
refusal to bargain stems not from an honest doubt of the union's status but rather
from a desire to avoid his statutory obligations.15
13 N L.R B. v. Somerset Shoe Company, 111 F. 2d 681 (C.A. 1) ; N L.R.B v. Crystal
Spring Finishing Company, 116 F. 2d 669 (CA 1) ; N.L.R B v. Reed it Prince Manu-
facturing Company, 118 F. 2d 874 (C.A. 1) ; N.L.R.B. v. Remington Rand, Inc, 94 F. 2d
862 (C.A. 2) ; N.L.R B. v. Poultrymen's Service Corporation, 138 F. 2d 204 (C A. 3) ;
N.L.R.B. v. Harris-Woodson Company, Inc., 162 F. 2d 97 (C.A. 4) ; The Solvay Process
Company v. N.L R B., 117 F. 2d 83 (C.A 5) ; N.L.R.B. v. Crown Can Company, 138 F. 2d
263 (CA. 8) ; N.LR.B. v. Morris P Kirk it Son, Inc., 151 F. 2d 490 (C.A. 9) ; Joy Salk
Mills, Inc. v. N L R.B., 185 F 2d 732 (C A., D C )
14 Ray Brooks v. N.L.R B , 348 U.S. 96; N.L.R.B. v. Southeastern Rubber Mfg. Co.,
213 F. 2d 11 (C A 5) ; Joy Silk Mills, Inc v. NLRB., supra; Franks Bros. Company v
N.L.R.B., 321 U.S. 702; N.L.R B. v. Louisville Refinery Co., 102 F. 2d 678 (C.A. 6) ;
Dahlstrom, Metallic Door Company v. N L R.B., 112 F 2d 756 (C.A. 2) ; Solvay Process
Company v. N.L.R.B., 117 F. 2d 83 (CA. 5) ; N.L R B. v. Federbush Company, Inc.,
121 F. 2d 954 (C.A. 2) ; N.L.R.B. v. Inter-City Advertising Company of Charlotte, N C,
Inc., et al, 190 F. 2d 420 (C.A. 4) ; N.L R.B. v. W. T. Grant Company, 199 F. 2d 711
(C.A. 9) ; Motorola, Inc. v. N.L.R.B., 199 F. 2d 82 (C.A. 9) ; N.L R.B. v. Everett Van
Kleeck and Company, Inc., 189 F. 2d 516 (C.A. 2) ; N.L.R B. v. Samuel J. Kobritz, d/b/a
Star Beef Company, 193 F. 2d 8 (C.A. 1) ; N.L.R.B. v. Poultry Enterprises, Inc., 207
F. 2d 522 (C.A. 5).
15 N.L.R.B. v. Consolidated Machine Tool Corporation, 163 F. 2d 376 (C A 2) ;
NLRB v. Dahlstrom Metallic Door Company, supra; N L.R B. v. Everett Van Kleeck
and Company, Inc, supra; Joy Silk Mills, Inc. v. N L R B., supra; N L R B. v. Chicago
Apparatus Company, 116 F. 2d 753 (C A. 7) ; N.L.R B. v. Morris P Kirk it Son, Inc,
supra; N.L.R B. v. Trimfit of California, Inc., supra; N.L R B. v. Parma Water Lifter
Co., supra; N.L.R.B. v. Geigy Company, Inc., 211 F. 2d 553 (C A. 9).
ORANGE PREMIUM STAMPS, ETC. 1503
Upon the record as a whole, the Trial Examiner finds that (1) on June 10,16 and
at all times thereafter, Respondent, in violation of Section 8(a)(5) and (1) of the
Act, failed and refused to bargain collectively with the Union as the duly designated
representative of the employees in the unit hereinafter found appropriate, thereby
interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act; (2) the cause of the strike was Respondent's
refusal to bargain collectively with the Union and it is now settled law that upon
termination of any unfair labor practice strike, as here, the strikers are entitled,
upon their unconditional application, to reinstatement, even if reinstatement neces-
sitates the discharge of new employees hired during the strike; 17 and (3) the polling
of the employees, through the medium of Beckley's May 15 union designation letters,
Respondent violated Section 8(a) (1) of the Act.16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, violative of
Section 8 (a) (1) and (5) of the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent on June 10, 1959, and at all times thereafter, has
refused to bargain collectively with the Union as the representative of the employees
in an appropriate unit, the Trial Examiner will recommend that Respondent, upon
request, bargain collectively with the Union as the exclusive representative of all
employees in the unit heretofore found appropriate, and, if an agreement is reached,
embody such understanding in a signed agreement.
Having found that Respondent, by its refusal on and after June 10, 1959, to
bargain collectively with the Union as the exclusive representative of the employees
in the appropriate unit, caused the strike which started on June 10, 1959, the Trial
Examiner will recommend that Respondent, upon their unconditional application,
offer reinstatement to Lillian B. Hermann, Violet L. Munson, and Joretta L. Nunley
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, dismissing if necessary any persons hired
by Respondent on or after June 10, 1959, who were not employed at Respondent's
San Diego stamp redemption facility on that date.
It will also be recommended that Respondent make whole the three above-named
persons if they have not been previously reinstated, for any loss of pay they may
suffer by reason of Respondent's refusal, if any, to reinstate them, as provided
above, by payment to each of them of a sum of money equal to the amount which
she normally would have earned as wages from a date 5 days after the date she
unconditionally applies for reinstatement to the date of Respondent's offer of
reinstatement, less her net earnings, if any, during said period. Backpay shall be
computed and paid in accordance with the formula enunciated by the Board in
F. W. Woolworth Company, 90 NLRB 289.
The unfair labor practices found to have been engaged in by Respondent are
of such a character and scope that in order to insure the employees here involved
their full rights guaranteed by the Act it will be recommended that Respondent
cease and desist from in any manner interfering with, restraining, and coercing its
employees in their right to self-organization.
Upon the basis of the foregoing findings of fact, and upon the entire record as
a whole, the Trial Examiner makes the following:
10 The day Puffer advised Nolley that Respondent refuses to recognize the Union as the
bargaining representative of the San Diego facility employees unless and until the Board
certifies the Union as such representative.
17 See N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333.
is N L R B. v. Samuel J. Kobritz, etc, supra; Avildsen Tools and Machines, Inc., et al.,
112 NLRB 1021 ; Roberts Brothers, 106 NLRB 372.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Local 542, International Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America , Independent , is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. All Respondent 's San Diego stamp redemption facility employees , excluding
supervisors as defined by the Act, constitute, and during all times material herein
constituted , a unit for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. Since April 21, 1959, the Union has been the exclusive representative of all
the employees in the above-described appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By failing and refusing on June 10, 1959, and at all times thereafter, to
bargain with the Union as the exclusive representative of all the employees in the
appropriate unit, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (5) of the Act.
5. By polling its employees as to whether they desire to be represented by the
Union, Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (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.
[Recommendations omitted from publication.]
Chicago Typographical Union No . 16, AFL-CIO and Central
Typesetting and Electrotyping Company. Case No. 13-CD-76.
June 24, 1960
DECISION AND DETERMINATION OF DISPUTE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that, "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
section 8 (b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practice shall have
arisen, ..."
On November 5 and December 8, 1959, Central Typesetting and
Electrotyping Company, herein called the Employer, filed with the
Regional Director for the Thirteenth Region a charge and amended
charge alleging, in substance, that Chicago Typographical Union
No. 16, AFL-CIO, herein called the Typographers, had induced and
encouraged its members to refuse to work in the Employer's Brightype
department for the purpose of forcing and requiring the Employer to
assign the camera and film development work in that department,
which had previously been assigned to members of Chicago Photo-
engravers, Union No. 5, herein called the Photoengravers, to members
of the Typographers in violation of Section 8(b) (4) (D) of the Act.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
Regional Director investigated the charges and provided for an
appropriate hearing upon due notice to all the parties. The hearing
127 NLRB No. 172.