Carlton Paper Corp.

National Labor Relations Board - Board Decisions

Oct 10, 1968

173 N.L.R.B. 153 (N.L.R.B. 1968)

CARLTON PAPER CORP. 153
Carlton Paper Corporation, Interstate Paper Convert-
ing Corp., Better Methods, Inc. and International
Union of District 50, United Mine Workers of
America and Local Union No. 84, an affiliate of
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Party in Interest . Case 29-CA-723
October 10, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 2, 1967, Trial Examiner William J. Brown
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and were
engaging in certain unfair labor practices and recom-
mending that they cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondents had not engaged
in certain other unfair labor practices and recom-
mended that such allegations be dismissed. There-
after, the General Counsel and the Respondents filed
exceptions to the Trial Examiner's Decision and
supporting briefs.,
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified below.
1. For the reasons set forth in the Trial Examiner's
Decision, we agree with his conclusion that the
Respondents did not lay off or refuse to rehire
employees in violation of Section 8(a)(3) and (1) of
the Act.
2. The Trial Examiner also found, and we agree,
that the Respondents participated in soliciting Local
84 authorization cards during that union's organizing
campaign at the Respondents' new plant in Secaucus,
New Jersey, and that they recognized Local 84
without adequate evidence of its representative status,
in violation of Section 8(a)(2) and (1) of the Act.
3. The Trial Examiner found, and our dissenting
colleague agrees, that the Respondents violated Sec-
tion 8(a)(5) and (1) of the Act by failing to recognize
District 50 on and after June 7, 1966, as the
representative of an appropriate unit of their produc-
tion and maintenance employees, and by refusing
thereafter to bargain for such employees.
We reject that finding because, upon the facts set
forth below, we are persuaded that there is a
substantial and material variance between the appro-
priate unit as defined in the complaint (and in which
alone District 50 established its numerical majority)
and the unit which was actually defined by District
50 when it made its bargaining requests.
Because of certain differences between us and our
dissenting colleague as to what the record affirma-
tively shows on the disputed refusal-to-bargain issue,
we deem it appropriate to begin by setting out the
relevant facts we find supported by the record.
On June 7, 1966, the Respondents were doing
business in Brooklyn, New York, at two locations
separated by about 5 miles. They were then in the
process of combining their operations and moving all
of them to a single new plant being prepared for
occupancy at Secaucus, New Jersey.
At the larger of the two Brooklyn plants, herein
called the Carlton Plant,2 Respondents employed, on
June 7, about 34 production and maintenance em-
ployees, 12 of whom were then represented by
Teamsters Local 27 under a bargaining contract
effective until September 30, 1967.3 At the smaller
plant, herein called the Better Methods plant, the
Respondents employed two or three production and
maintenance employees.
The unit alleged and found to be appropriate is one
that includes all Respondents' production and main-
tenance employees at both plants who were not
covered by the Respondents' bargaining contract with
Teamsters Local 27. That unit contained, on June 7, a
maximum of 25 employees, 16 of whom had previ-
ously signed cards designating District 50 as their
bargaining representative.
On June 7, Pohmer and Rosario, representatives of
District 50, called on Jackowitz, president of all three
corporations, at the Carlton plant. They advised
Jackowitz that a majority of the "Carlton employees"
had designated District 50 to represent them, offered
to submit the designation cards to a neutral third
party for a check, and asked Jackowitz to recognize
I The Respondents ' request for oral argument is hereby denied as the at this location were carried on Carlton's payroll At the smaller plant,
record, including the exceptions and briefs , adequately presents the the operations were conducted under the name of Better Methods
issues and the positions of the parties 3 Some of the Teamster-represented employees were classified as
2 At the Carlton plant, the operations were conducted under the shipping and receiving employees, and the others as drivers and
name of Carlton and Interstate , two of the three corporations which warehousemen.
together form the single Employer in this case . The 22 unit employees
173 NLRB No. 26
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and bargain with District 50 for the Carlton em-
ployees.4 Jackowitz rejected the demand on various
grounds, among them that a decertification election
of another union had been held within the preceding
year Jackowitz also stated, as additional grounds for
rejecting the demand, that the Respondents were
moving to a new plant in Secaucus, New Jersey, and
he had already so notified the employees and that he
(Jackowitz) had been informed that another union,
Teamsters Local 84, was going to seek to represent
the employees at the new location.5 Jackowitz finally
stated that he would consult his attorney, and the
meeting thereupon ended.
Thereafter, on the afternoon of June 7, District 50
filed a representation petition with the Board. In that
petition, District 50 described the requested unit as
extending to all production and maintenance em-
ployees at the Carlton plant "including shipping and
receiving employees. " [Emphasis supplied.]
On June 8, District 50, in a letter to Jackowitz,
again demanded recognition and bargaining for a
majority of the production and maintenance em-
ployees at the Carlton plant and renewed the offer of
a card check by neutral party.
Jackowitz met with Respondents' attorney some-
time after June 8. He was then advised that the
election conducted in August 1965 would not consti-
tute a valid basis for a refusal to recognize District 50,
but that he could lawfully withhold recognition on
the ground that the unit for which District 50 sought
recognition was inappropriate because it included
employees covered by the contract with Local 27,
that this factor and the impending consolidation of
the three Respondent corporations raised doubts
about District 50's majority status; and that in light
of the impending move to Secaucus and Respondents'
information that another local was going to seek
jurisdiction at Secaucus, a jurisdictional dispute might
arise.
Thereafter, at a conference held at the Board
offices relating to District 50's RC petition, District
50's representatives were advised that the Board could
not entertain the petition because of the provisions of
Section 9(c)(3) of the Act. District 50 then requested
permission to withdraw the petition. The Regional
Director approved this withdrawal request on June
29.
On July 7, District 50 filed a new representation
petition with the Board describing the unit sought in
the same terms as those contained in its June 7
petition.
On July 21, Respondents terminated their Brook-
lyn operations, transferred some of their production
and maintenance employees, including all those cov-
ered by Local 27's contract, and dismissed the
remainder by letter advising them that Respondents
would consider for jobs at the new location all those
who filed application .6
On July 26, as the Trial Examiner found, the July
7 representation petition was withdrawn by District
50, "apparently because it specifically included ship-
ping and receiving employees regarded by the Region-
al Office as covered under the Local 27 contract."
There is no evidence that District 50 made any other
efforts to obtain recognition from Respondents be-
fore it initiated this proceeding.
At the hearing in this case, District 50 disclaimed
any intent to represent any of the employees covered
by Local 27's contract, explaining that its reference
to shipping and receiving employees in the above-
described representation petitions was meant to cover
only certain employees, other than those represented
by Local 27, who also sometimes did shipping and
receiving work. Pohmer testified that he had made
clear this reservation as to the scope of the requested
unit in the course of his June 7 meeting with
Jackowitz. Accepting this testimony, the Trial Exam-
iner found that District 50 had "expressly disclaimed
representation of any Local 27 employees" on June
7, when it initially demanded recognition, and on that
basis he rejected Respondents' defense that District
50 had demanded bargaining in an inappropriate unit.
For the reasons hereinafter set forth, we find that the
Trial Examiner clearly erred in according credence to
Pohmer's testimony on this highly disputed and
critical issue of fact and therefore improperly resolved
the ultimate 8(a)(5) violation issue in this case.
In crediting that part of Pohmer's testimony just
referred to, the Trial Examiner asserts in his Decision,
that "Rosario generally corroborated Pohmer's testi-
mony and Jackowitz did not deny its essentials."
Examination of the record shows, however, that the
Examiner's characterization of the testimony of
Rosario and Jackowitz is clearly wrong. In fact, the
4 Although the Trial Examiner found that Pohmer also told
Jackowitz at this conference that District 50's bargaining demands
explicitly excluded employees represented by Local 27, we show below
that this finding has no record support
5 Jackowitz testified that he told Rosario and Pohmer he had
received a telephone call from a representative of Local 84 to the effect
that Local 84 was going to seek representation of "our employees when
they started to work out there ." The testimony of Rosario and Pohmer
differs on what Jackowitz stated to them, but it appears that neither of
them testified , as the Trial Examiner found , that Jackowitz at this time
claimed to have a contract with Local 84, and we therefore reject this
finding of the Trial Examiner. Our dissenting colleague joins us in the
refection of this finding
6 Although Respondents ' failure similarly to transfer a group of other
production and maintenance employees was alleged to be violative of
Section 8 (a)(3) of the Act because most of those not transferred had
signed cards for District 50, the Trial Examiner dismissed that
allegation , finding that Respondents did not know who District 50's
adherents were and that there was , moreover , no affirmative evidence of
discriminatory motivation As indicated above , we, unlike our dissenting
colleague, adopt this finding of the Trial Examiner
CARLTON
testimonial description of the June 7 discussion given
by these two witnesses differs considerably from that
of Pohmer's.7 We note particularly that Jackowitz
and Rosario both denied in their testimony that Local
27's representative status was mentioned during the
meeting. Rosario further testified, contrary to
Pohmer, that he had never informed the latter prior
to the June 7 meeting of Local 27's representation of
Carlton employees and that he himself did not learn
of Local 27's existence at Carlton before a meeting
held with Board agents in connection with one of the
two petitions District 50 had filed.8 None of this
relevant testimony is mentioned by the Trial Exam-
iner. Nor does his Decision otherwise reflect any
consideration of: (1) the material inconsistency be-
tween Pohmer's testimonial assertions that he had
been informed of Local 27's representative status by
Rosario before the meeting of June 7, and Rosario's
admission that he did not learn of Local 27's
existence until some time after June 7; and (2) the
strong corroborative support of Jackowitz' testimony
provided by the fact that neither the letter sent by
District 50 to Respondents on June 8, nor the
representation petitions which District 50 filed in
June and in July, disclaimed any interest in repre-
senting employees represented by Local 27.
In the above circumstances, and as the totality of
other facts evidenced by the record preponderates
against according credence to Pohmer's testimony
with regard to the unit for which District 50
requested recognition, we cannot and do not accept
Pohmer's testimony that he explicitly told Jackowitz
that District 50 was not seeking to represent any of
the employees in the unit covered by Local 27's
contract.9 As nothing in District 50's other external
acts or statements were such as to clearly manifest to
Respondents an intent to exclude from the unit Local
7 Indeed, on some matters as to which the testimony of these
witnesses differed, the Trial Examiner credited Jackowitz and made
findings of fact consistent with his testimony.
8 Rosario was the only District 50 representative with whom the
employees herein had had any contact prior to June 7.
9 In making our own evaluation of all the relevant evidence in this
case to resolve this disputed issue of fact , we have taken into account
that the Trial Examiner 's crediting of Pohmer may have been based, in
part, upon his consideration of demeanor , a factor to which we
customarily accord great weight in considering exceptions to the
credibility rulings of a Trial Examiner . The weight given that factor is
diminished , however , where, as here , the Trial Examiner 's Decision
omits reference to highly relevant testimony on a critical matter and
mistakenly characterizes the state of the record . Cf. Valley Steel
Products Co., Ill NLRB 1338; Standard Dry Wall Products, Inc., 91
NLRB 544, enfd . 188 F.2d 362 (C.A. 3).
10 In reaching this conclusion , we have not ignored the fact that
none of the 16 designation cards submitted in evidence in this case was
signed by any employee covered by Local 27's contract , and that the
representation petitions filed by District 50 described the number of
employees the unit sought as 23, which is the approximate number of
employees contained in the unit for which District 50 now contends it
made its bargaining demand . As Respondents never saw the employees'
authorization cards until the hearing herein , and as District 50's
petitions defined the scope of the requested unit as specifically
including "shipping and receiving employees ," we do not regard these
PAPER CORP. 155
27 represented employees, we are compelled to find
in accord with Respondents' contentions that District
50's bargaining requests, as addressed to the Respon-
dents, defined the unit for which recognition was
requested as including shipping and receiving em-
ployees represented by Local 27.10
Because Respondents plainly had no legal obliga-
tion to comply with a demand that they bargain with
District 50 for a unit including employees for whom
Local 27 held a valid contract, applicable precedent
precludes our finding the alleged violation of Section
8(a)(5) and (1) of the Act.11 We shall therefore
dismiss the 8(a)(5) and (1) allegations of the com-
plaint.l2
CONCLUSIONS OF LAW
1. The Respondents are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union of District 50, United Mine
Workers of America, and Local Union No. 84,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor
organizations within the meaning of Section 2(5) of
the Act.
3. By urging employees to become members of
Local Union No. 84, and by according the aforesaid
labor organization recognition as exclusive representa-
tive, of employees at a time when it did not represent
an uncoerced majority of employees the Respondents
have engaged in unfair labor practices within the
meaning of Section 8(a)(2) and (1) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
5. The Respondents have not engaged in unfair
labor practices as defined in Section 8(a)(3) or (5) of
the Act.
facts as sufficient to put the Respondents on notice that District 50 was
seeking recognition in a more limited unit than its express demand made
it appear.
11 See Sportswear Industries, Inc., 147 NLRB 758; C. L. Bailey
Grocery Co., 100 NLRB 576.
12 In the context of our findings , we consider inapposite to the
instant case the reasoning in Benson Wholesale Grocery Co., 164 NLRB
No. 75, quoted by our dissenting colleague. Although the union in
Benson had ambiguously defined the unit when it first requested
bargaining , it sufficiently clarified its unit definition a few days later
when it filed its representation petition . Moreover , the demand of the
Union in Benson was followed by serious employer unfair labor
practices designed to undermine and to destroy the Union 's status as the
majority representative of any appropriate unit of its employees.
Although , under our dissenting colleague's separate view, this case may
be comparable to Benson in the latter respect, it is not under the facts
as we have found them . Unlike our dissenting colleague we have found
the 8(a)(3) allegations of the complaint unsupported by the record.
Although we have found that Respondents did violate Section 8(a)(2)
by unlawfully assisting and recognizing Local 84, this 8 (a)(2) conduct
occurred at Respondents' new plant at a much later date, and in our
view, is too remote from Respondents ' failure to honor District 50's
bargaining demand , either to support a finding that Respondents lacked
any genuine doubt of District 50's majority status in an appropriate
unit , or to justify a bargaining order running to District 50 as a remedy
for the 8(a)(2) violation so found.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Carlton Paper Corporation, Interstate Paper Conver-
ting Corp., and Better Methods, Inc., Secaucus, New
Jersey, their officers, agents, successors, and assigns,
shall take the following action:
1. Cease and desist from:
(a) Recognizing Local Union No. 84, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive
representative of their employees, for the purposes of
collective bargaining, and giving any force or effect to
their recognition of the aforesaid labor organization
as exclusive bargaining representative, unless and until
the Board shall certify it as such representative.
(b) Urging or encouraging employees to become or
to remain members of the aforesaid labor organiza-
tion.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from
Local Union No. 84, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the collective bargaining representative of
their employees, unless and until the Board shall
certify the aforesaid labor organization as such
representative.
(b) Post at their place of business in Secaucus,
New Jersey, in both English and Spanish,13 copies of
the attached notice marked "Appendix."l 4 Copies of
said notice, on forms provided by the Board's
Regional Director for Region 29, after being duly
signed by the Respondents' authorized representative,
shall be posted by the Respondents immediately upon
receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
13 The record indicates that a substantial number of the Respon-
dents ' employees are familiar only with the Spanish language.
14 In the event that this Order is enforced by a decree of a United
States Court of Appeals , there shall be substituted for the words "a
Respondents to insure that said notices are not
altered, defaced, or covered by other material.
(c) Notify the Board's Regional Director for Re-
gion 29, in writing, within 10 days from the date of
this Order, what steps the Respondents have taken to
comply herewith.
MEMBER ZAGORIA , dissenting in part:
I agree with the finding that the Respondents
violated Section 8(a)(2) and (1) of the Act. I cannot,
however, agree with the dismissal of the Section
8(a)(3) and (5) allegations of the complaint.
1. It is undisputed that on July 21, after com-
pleting the transfer of most of the physical equipment
and operations to the new plant, Jackowitz laid off
14 of the 22 Carlton production and maintenance
employees, gave them 2 weeks' vacation pay, and
informed them that if they filed applications for
reemployment in the Secaucus plant, they would be
considered for employment. The balance of the work
force, including all those covered by the Local 27
contract, were transferred to the Secaucus operation.
In the ensuing weeks, several of the laid-off em-
ployees applied for jobs in Secaucus, but were told
there was no work available. In the meantime,
however, the Respondents were hiring new employees
from New Jersey, Brooklyn, and other communities
in the New York area. Moreover, although the
Respondents finally sent letters on November 4, and
telegrams on November 11, offering reemployment to
the laid-off employees at their old rates of pay, the
record indicates that the Respondents were then
hiring new employees at a higher starting rate than
the old rates being offered to the former employees.
The Respondents assert as the reason for the
layoffs their concern for the transportation problems
that the employees would incur if they transferred
from their jobs in Brooklyn to work at the new plant
in Secaucus. The Respondents, however, although
they notified the employees about the pending move
in advance did not notify them of this purported
concern about their transportation problems nor give
them any indication of a possibility that it might
result in their layoff. Moreover, as noted above, the
Respondents retained other Brooklyn employees to
work in Secaucus, including all those in the unit
represented by Local 27, hired new employees in
Secaucus, at least some of whom resided in Brooklyn,
and later offered reemployment to the laid-off em-
ployees. It is apparent, in my view, that these facts
demonstrate that the Respondents were not in fact
motivated in effectuating this layoff by concern over
the employees' alleged transportation problems.
The Respondents also argue that the selection of
Decision and Order " the words "a Decree of the United States Court of
Appeals Enforcing an Order."
CARLTON PAPER CORP. 157
employees for transfer to the new plant was made on
the basis of an evaluation of their skills, ability, and
employment records, and that the Respondents had
no personal knowledge of the identity of the District
50 card signers. Aside from the bare assertion,
however, the Respondents adduced no evidence in
support of their alleged nondiscriminatory evaluation
of the affected employees. In addition, it is clear, in
view of the District 50 recognition demand on June 7,
that the Respondents knew that District 50 had
general support among the production and mainte-
nance employees, in which unit all the laid-off
employees worked. The record further establishes
that all 14 laid-off employees had signed District 50
cards, whereas only 2 of the production and main-
tenance employees retained by the Respondents for
transfer were District 50 adherents
In summary, the evidence, including the violation
of Section 8(a)(2), in which the majority opinion
concurs, establishes that the Respondents were op-
posed to the organization of their employees by
District 50. The evidence also establishes, as detailed
by the Trial Examiner's Decision, that the Respon-
dents had predetermined to recognize Local 84 rather
than District 50 as such representative at Secaucus.
Finally, the undisputed evidence establishes that the
Respondents laid off and refused to rehire a dispro-
portionate number of District 50 adherents, ad-
vancing conflicting reasons therefor which are not
supported by the record, and at least one of which-
the asserted concern for transportation difficulties-
was patently false. The only reasonable inference to
be drawn from all these circumstances, and I would so
find, is that these 14 employees were denied employ-
ment at Secaucus, because of their known or sus-
pected adherence to District 50, and that this was
done in order to permit the Respondents to advance a
colorable claim that their employees at Secaucus
desired to be represented by Local 84 rather than by
District 50, thereby effectuating the Respondents'
predetermination to recognize Local 84 as such
representative. The Respondents thus discriminated
against these employees to discourage membership in
District 50, in violation of Section 8(a)(3), and
thereby interfered with their right to representation
by the union of their choice, in violation of Section
8(a)(1) of the Act., 5
2. The dismissal of the 8(a)(5) allegation by my
colleagues is based on their finding that District 50
was seeking recognition in a unit which included
employees represented by another union. I do not
agree that the facts or Board law support this result.
As the Trial Examiner found, on June 7 District 50
representatives requested recognition for a unit of "all
production and maintenance employees including
those doing shipping and receiving work," and they
"specifically disclaimed representation of employees
covered by the existing agreement with Local 27."
I do not agree with the majority view that the Trial
Examiner's credibility finding in this one respect
should be upset, as I cannot agree that the factors on
which they rely constitute a preponderance of the
relevant evidence on the record considered as a
whole. 16 Moreover, in rejecting the request for
recognition, Jackowitz did not assert any doubt as to
which employees District 50 was seeking to represent,
nor indicate in any way that he had a contract
covering a shipping and receiving unit.
My colleagues also point to the fact that the
representation petitions filed by District 50 included
"shipping and receiving employees" in the unit
descriptions. As both Rosario and Pohmer testified,
however, they intended at all times to represent only
production and maintenance employees, including
those who sometimes did shipping and receiving
work, and the record shows that production and
maintenance employees at Carlton sometimes did
shipping and receiving work. It should be noted, in
addition, that the petitions state the number of
employees in the unit as 23, and the record indicates
that the Respondents employed approximately 22
production and maintenance employees at the
Carlton plant.
In light of all these considerations, I am convinced
that the record shows, as the Trial Examiner found,
that District 50 did request recognition in an appro-
priate unit. If Jackowitz was confused as to which
employees District 50 was seeking, he could easily
have resolved the confusion. As the Board has stated
in a comparable situation, "a simple inquiry on that
point, which good faith would seem to require, would
undoubtedly have clarified such confusion."'? The
Respondents, however, made no such inquiry but,
instead, chose to ignore District 50's request for
recognition, to get nd of most of the District 50
adherents, and to assist and grant recognition unlaw-
fully to another union. The majority opinion refers to
the advice Jackowitz received from his attorney that
the unit sought by District 50 appeared to be
inappropriate. It is significant, in my view, that
Jackowitz never voiced this opinion to District 50. I
would find, therefore, not only that District 50
sought an appropriate unit, but also that the Respon-
dents did not refuse to recognize District 50 because
of doubts as to the scope or appropriateness of the
unit sought.
Moreover, the Respondents' other defenses are
without merit. It is clear that the ground they initially
5 Rosen Sanitary Wiping Cloth Co., Inc., 154 NLRB 1185 . 17 Benson Wholesale Company, Inc , 164 NLRB No. 75.
16 Cf. Standard Dry Wall Products , Inc, 91 NLRB 544.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserted for refusing recognition-the election con-
ducted within the preceding year-did not excuse the
refusal to bargain.' 8 There is likewise no merit in the
Respondents' reliance on the asserted representation
claims of Local 84. That organization had made no
recognition demands before June 7 and, according to
the testimony of Coffey, president of Local 84, his
union did not begin to organize the Respondents'
employees until July 1966.
I would likewise find no merit in the Respondents'
contention that they had a good-faith doubt as to
District 50's majority status. As the Trial Examiner
found, Jackowitz's refusal to recognize District 50
was not based on any doubts as to unit or majority.
Moreover, Jackowitz's refusal to grant recognition
because of an asserted rival union claim was made
before Local 84 sought recognition, and the Respon-
dents thereafter unlawfully recognized Local 84,
while District 50's demand for recognition was
pending. As the Trial Examiner found, this conduct
evidenced a "predetermination" of Jackowitz to deal
only with Local 84, and the record is "completely
devoid of indications that Respondents' refusal was
based on any good-faith doubt of the District 50
majority."
Accordingly, on the basis of the foregoing facts,
and particularly the fact that, subsequent to the
refusal to recognize District 50, the Respondents
engaged in substantial unfair labor practices which
undermined District 50's support, dissipated its ma-
jority, and precluded the holding of a fair election, I
would find that the Respondents' refusal to recognize
District 50 was violative of Section 8(a)(5) and (1) of
the Act.' 9 Moreover, even if District 50's bargaining
demand were as flawed as my colleagues conclude, I
would still enter a bargaining order to remedy the
Respondents' other substantial unfair labor prac-
tices.2 0
policies of the National Labor Relations Act, as
amended, we hereby notify our employees that'
WE WILL withdraw and withhold recognition
from Local Union No. 84, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative
of our employees, for the purposes of collective
bargaining.
WE WILL NOT urge or encourage employees to
become or remain members of Local Union No. 84,
or any other labor organization.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities, except to the extent that such rights
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 Act.
CARLTON PAPER CORPORATION,
INTERSTATE PAPER CONVERTING
CORP., BETTER METHODS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 16 Court Street, Fourth Floor, Brooklyn, New
York 11201, Telephone 212-596-3535.
18 Conren, Inc, d/b/a Great Scot Super Market, 156 NLRB 592,
enfd. 368 F 2d 173 (C A 7)
19 Joy Silk Mills , Inc., 85 NLRB 1263, enfd . 185 F 2d 732 (C.A
D C.), cert. denied 341 U. S. 914.
20 Bryant Chucking Grinder Co ., 160 NLRB 1526 , 1530, enfd. 389
F.2d 565 (C A 2), cert. denied 392 U. S. 908.
The Respondents urge that no order should issue directing them to
bargain with District 50 on the ground that it no longer represents a
majority in the appropriate unit. It is the Board 's established policy,
however, to issue a bargaining order in a case in which it finds that an
employer unlawfully refused to bargain, even where the union has lost
its majority status, if such loss is attributable , as it would be herein, to
the employer 's unfair labor practices Joy Silk Mills, Inc., supra, Frank
Bros. Company, 44 NLRB 898, affd 321 U. S. 702.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
TRIAL EXAMINER'S DECISION
WILLIAM J. B ROWN, Trial Examiner' This proceeding un-
der Section 10(b) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act, came on to be
heard before me at Brooklyn, New York, on February 15 to
17 and March 7 to 9, 1967. The underlying charge of unfair
labor practices was filed September 9, 1966,1 by the above-
indicated Charging Party, hereinafter referred to as District 50
and the complaint herein was issued November 28 by the
General Counsel of the National Labor Relations Board acting
through the Board's Regional Director for Region 29. It
alleged , in addition to jurisdictional matter, the commission of
unfair labor practices defined in Section 8(a)(1), (2), (3), and
1 Dates hereinafter relate to the year 1966 except where otherwise
noted. An earlier charge in Case 29-CA-668 , filed July 22 had been
dismissed by the Regional Director on August 26
CARLTON PAPER CORP
(5) of the National Labor Relations Act, as amended.
Respondents' duly filed answer admits the jurisdictional
allegations of the complaint, denies the commission of the
unfair labor practices alleged. At the hearing the parties
appeared as noted above2 and participated with full oppor-
tunity to present evidence and argument on the issues 3
Subsequent to the close of the hearing briefs were received
from the General Counsel and the Respondents on May 9,
1967, and have been fully considered 4 On the entire record
herein and on the basis of my observation of the witnesses I
make the following-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYERS
The pleadings and evidence indicate and I find that Carlton
Paper Corporation and Interstate Paper Converting Corpora-
tion, hereinafter sometimes referred to as Carlton and Inter-
state, are and have been at all material times New York
corporations with their principal offices and places of business
at 163 Carlton Avenue, Brooklyn, New York, prior to July 22
and at 650 New County Road, Secaucus, New Jersey,
thereafter. Better Methods, Inc. is a New Jersey corporation
with its principal office at material tunes prior to July 22 at
Dean Street, Brooklyn, New York, and thereafter at the
Secaucus, New Jersey, location. The pleadings also establish
that in the year preceding issuance of the complaint herein, a
representative period, Respondents sold and distributed pro-
ducts valued in excess of $50,000 and shipped by Respondents
in interstate commerce to points outside the States of New
York and New Jersey. I find, as Respondents concede, that
they are engaged in commerce within the meaning of Section
2(6) and (7) of the Act
II THE LABOR ORGANIZATIONS INVOLVED
The pleadings and evidence establish and I find that District
50 and Local 84 are labor organizations within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A Introduction to the Issues
Carlton and Interstate have been, for some 14 years
preceding the events here involved, engaged at the Carlton
Avenue plant as jobbers and processors, respectively, of paper
products sold primarily to the garment trades. Better Methods
2Pro forma appearances were also noted for Messrs. William J.
Pohmer, International Representative of District 50, and Charles H.
Coffey, President of the above-indicated Party in Interest, hereinafter
referred to as Local 84.
3 At the conclusion of the General Counsel's case-in-chief, I
dismissed , on Respondents' motion , allegations relating to unfair labor
practices committed through David Provenzano, son-in-law of Respon-
dents' Vice President , Bernard Jackowitz, and employed by Respon-
dents as an installer -salesman , for want of evidence that he was a
supervisory employee or otherwise an agent for whose acts Respond-
ents were answerable.
159
has been at all material times engaged in the assembly of a
garment pattern copying machine known as the RR-50 Copy
Maker, invented by William Jackowitz, Respondents' presi-
dent, and initially developed in a pipe manufacturing plant
owned and controlled by the family of Frank Cutri, Respon-
dents' plant manager, and subsequently manufactured in
Better Methods plant at Dean Street, Brooklyn, located some 5
miles from the Carlton-Interstate Brooklyn operations.
At all material times William Jackowitz has been president
of Respondents, Bernard Jackowitz has been their vice
president, Al Forman their secretary, and Frank Cutri, their
plant manager. The evidence indicates the supervisory status of
William Jackowitz and Frank Cutri. It also establishes the
supervisory status of Andrew Singleton,5 employed for some
19 years in the Carlton-Interstate operations prior to the move
to New Jersey and thereafter in the combined Carlton-Better
Methods operation. The Carlton Street operations were con-
ducted in a four-story plus basement budding dependent on
truck transportation for receipt and shipment of goods
whereas the Secaucus operations are conducted in a single-
story plant with a railroad siding required, according to
President Jackowitz' testimony which I credit in this regard,
fewer employees than were needed prior to the move.
Although the bulk of Respondents' business, measured in
terms of sales volume, consists of the jobbing of paper
products, it appears that the bulk of the manpower require-
ments were those of Interstate, which acted as a converter of
paper products and requires the use of several machines for
cutting, winding, and otherwise processing paper products
useable in the garment trades and for the baling or compressing
of wastepaper.6
In September 1963 Carlton and Interstate, as a single
employer, signed a collective-bargaining agreement with Local
679, United Independent Workers of America, for a 2-year
term expiring September 16, 1965, and covering production
and maintenance employees. Following a decertification elec-
tion conducted by the Board's Regional Office on August 17,
1965, Local 679 was decertified on August 25, 1965. During
the pendency of the Local 679 agreement, Carlton entered
into a collective-bargaining agreement with Paper Products and
Miscellaneous Chauffeurs, Warehousemen and Helpers, Local
27, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, extending
for a term from October 1, 1964, until September 30, 1967,
and covering a unit which included drivers, helpers, ware-
housemen, shipping clerks, and Hilo operators.
Sometime during 1965 it was decided to move the opera-
tions of Carlton, Interstate, and Better Methods into a single
integrated plant to be built in Secaucus and sometime during
that year employees were informed of the prospective move.
In the summer of 1965, Charles Coffey, president of Local 84
4 On May 10 Respondents , by letter with copies to other parties,
called my attention to certain precedents in addition to those cited in
its brief
5 Singleton is employed on a salary basis and has authority to make
effective recommendations as to employment relations and to direct the
work of employees He substitutes for Cutri in the latter 's absence
a The testimony of Jackowitz indicates that the accumulation of
wastepaper runs to 3 or 4 tons per day
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heard of a new construction project in Secaucus and later7
observed the progress of Respondents' construction and
solicited unrepresented8 employees. It appears from his
testimony that he did not communicate with Respondents'
officials until sometime in July. Shortly before June 3,
Interstate employees Luis Esquilm and Carmelo Garcia9
communicated with District 50 Representative Carlos Rosario
and on that date Rosario, in a park near the Brooklyn plant,
solicited and obtained 14 District 50 authorization cards from
employees of Respondents.' 0 These authorization cards (Gen-
eral Counsel's Exhibits 4 to 7, inclusive, and 9A to I) are
unequivocal applications for membership in District 50 and
authorizations for representation by that Union.
On June 7, apparently about noon, International Respresen-
tatives William Pohmer and Rosario called on Jackowitz,
claimed to represent a majority of production and mainten-
ance employees, including those doing shipping and receiving
work but not represented by Local 27, and asked recognition
and a date for negotiation of a collective-bargaining agreement.
The evidence indicates that Jackowitz declined recognition on
the grounds that Local 679 had been decertified within the
year and that he was soon to move to Secaucus where Local 84
was interested in representing employees. Pohmer accused
Jackowitz of having a "sweetheart" deal with Local 84. Soon
after the discussion Pohmer and Rosario went to the Board's
Regional Office and filed a representation petition (Respon-
dents' Exhibit 1) in Case 29-RC-497 for a unit described as
"All production and maintenance employees [of Carlton and
Interstate, District 50 then being unaware of Better Methods'
existence] , including shipping and receiving employees"; the
petition excluded i e., truckdrivers. On the following day, by
letter of Charles Retty, regional director, District 50 repeated
its demand for recognition and renewed an offer made the
previous day by Pohmer and Rosario to submit to a card check
by a neutral person Soon thereafter District 50 was asked by
Board officials to withdraw its petition in view of the
provisions of Section 9(c)(3) of the Act, and the withdrawal
was approved by the Regional Director on June 29. A second
representation petition filed by District 50 on July 7 was
subsequently withdrawn, apparently because it specifically
included shipping and receiving employees regarded by the
Regional Office as covered under the Local 27 contract.
In the meantime the transfer of machinery and employees
to the Secaucus plant had commenced and on July 21
employees, except those selected previously for transfer, were
7 Local 84 had represented the employees of the business formerly
occupying the Secaucus area on which Respondents built after
demolition of the former buildings.
8 Coffey talked to some of Respondents' employees represented by
Local 27 and did not seek to represent them , confining his organiza-
tional interests to production and maintenance workers
9 Esquilin , one of Respondents ' senior employees , worked in
Brooklyn on the pneumatic gun used to separate stamped out paper
cuttings made by the Miehle press which was operated by Garcia
10 The 14 employees signing District 50 cards on June 3 are
Conrado Sanchez, Moises Mojica, Aurelio Maza, Julio Sanchez,
Saturnino Ramos , Ramon Hernandez , Luis Esquilin , Juan Jiminez,
Librado Medina, Andrew Abreu, Julio Flores, Humberto Nunez,
Carmelo Garcia and Radames Aviles Morales . Cards were signed by
employees Marcos Betancourt and Harry Cintron some time later.
Rosario spoke in both Spanish and English and translated the
authorization cards . With respect to Mojica 's card, the authenticity of
which was challenged by Respondents on the basis of a comparison of
the signature thereon with signatures on his IRS W -4 form and on paper
signed at the hearing , it does appear that substantial variances appear in
the signatures . Nevertheless I accept his testimony that he signed the
dismissed from employment at the Brooklyn operation with
the information that if they felt they could work in Secaucus
they would be considered for employment there on applica-
tion. The laid-off employees received 2 weeks' vacation pay
owing to them. Employees covered under the Local 27
contract as drivers and shipping and receiving clerks were not
laid off but were transferred to the Secaucus operations. On
the day following the closing of the Brooklyn plant District 50
filed unfair labor practice charges under Section 8(a)(1), (3),
and (5) of the Act in Case 29-CA-668; on August 26 the
Regional Director refused to issue a complaint on these charges
on the grounds that investigation failed to disclose any
violation of the Act.
On or about August 8 production commenced at the
Secaucus plant, operations prior thereto having been related to
the movement and set up of machinery and on August 17 the
Company executed a recognition agreement with Local 84.i1
It appears that subsequent bargaining on conditions of
employment broke down upon disagreement on welfare
provisions followed by the issuance of the complaint in the
instant case
On September 9 the charge was filed in the instant case. On
November 4, by letter, and again on November I1 by telegram
Respondents offered employment at Secaucus to 10 Brooklyn
layoffs not theretofore taken to Secaucus. On November 28
the complaint herein issued.
There is no evidence of organizational activity on behalf of
District 50 carried on in the plant nor is there evidence or even
allegations of interrogation or surveillance on the part of
Respondents concerning the identity of District 50 supporters.
B. The Refusal to Bargain
As noted above, District 50 made its initial bargaining
demand on June 7 when Pohmer and Rosario met with
Jackowitz. At that time Respondents' production employees
(apparently all on the Interstate payroll) numbered 22,12 and
District 50 had secured authorization cards from 14 or 16 of
the production workers which was clearly a majority in any
conceivable appropriate unit Pohmer testified that he told
Jackowitz that District 50 represented a majority of Respon-
dents' employees and asked for recognition and a date for
commencement of negotiations, and that Jackowitz replied
that in view of the election conducted within the preceding
year he did not have to recognize any union and, further, that,
as employees had been notified a year ago, he was moving the
plant to New Jersey where he had a contract with Local 84.
District 50 card on June 3 1 believe that the apparent signature
discrepancies are attributable to lack of experience in acquiring an
established signature
11 The agreement refers only to Better Methods as the employer
party but it appears to have been regarded as applicable to all
production and maintenance employees except supervisors, office
clericals, guards, and employees covered by the Local 27 agreement
12 Payroll records and testimony of Jackowitz indicate that these
employees were Julio Flores , Juan Ramon Jiminez , Librado Medina
Mendez , Aurelio Maza Vasquez, Moises Mopca Negron , Harry Cintron,
Julio Sanchez, Conrado Sanchez , Radames A . Morales, Ramon
Hernandez , Humberto Nunez , Andrew Abreu , Luis Esquilin , Marcos
Betancourt , Carmelo Garcia , James Carter, David DeStefano, Lide
Bridget, Saturnino Ramos Marin, Samuel Byers , Victor Concepcion and
Harry Morton The latter was a driver represented by Local 27. In
addition Better Methods employees at Dean Street included Elson and
Francisco Mendez and Foreman Carl Sorrano.
CARLTON PAPER CORP 161
Jackowitz further stated, according to Pohmer, that he wanted
to get rid of the Brooklyn employees as they were no good.
Pohmer "flashed" the 14 authorization cards Rosario had
obtained and offered to submit them to a cross-check by a
neutral person but Jackowitz refused the offer. Pohmer made
it clear, he testified, that he wanted representation of all
production and maintenance employees, including those doing
shipping and receiving work but excluding any covered by the
Local 27 contract of whose existence he was aware prior to the
visit, and he told Jackowitz that any contract in effect at the
New Jersey operation must be a "sweetheart deal." Pohmer
also testified that he specifically requested bargaining with
respect to the matter of the plant relocation and its effect on
employees. Rosario generally corroborated Pohmer's testi-
mony and Jackowitz did not deny its essentials except that his
testimony respecting Local 84 is that he informed Pohmer and
Rosario merely that Local 84 had communicated with him
concerning representation of Respondents' employees on
completion of the move to Secaucus I found Pohmer a
credible witness and find, in accordance with his testimony
that on June 7 he informed Pohmer that he was in possession
of cards from a majority of Respondents' production em-
ployees, offered a card check by a neutral person, and
demanded recognition and bargaining, particularly with respect
to the impending move and its effect on employees. I find also
that he specifically disclaimed representation of employees
covered by the existing agreement with Local 27. It also
appears that Jackowitz did not base his refusal of recognition
on any genuine doubt as to District 50's majority status among
the Brooklyn production employees but rather, primarily, on
the basis of his mistaken belief that he did not have to
recognize any labor organization for such employees in view of
the decertification of Local 679 within the preceding 12-
month period.
Following the meeting between District 50 representatives
and Jackowitz on June 7, Jackowitz consulted Attorney
Kornblum and was advised that he could withhold recognition
because (1) District 50's claim sought an inappropriate unit in
view of the fact that shipping and receiving employees were
covered by the Local 27 agreement and (2) the impending
move to New Jersey might give rise to a jurisdictional dispute
among contending labor unions in view of the representation
claims of Local 84. In view, however, of the testimony of
Local 84's representative that his first contact with Respon-
dents' employees took place in July and his first approach to
Respondents' supervisory staff occurred in August, I find and
conclude that any refusal to recognize District 50 in June was
not based on any representational claims of Local 84. With
respect to the alleged impropriety of District 50's claim
vis-a-vis Local 27's representation of shipping and receiving
employees, I credit Pohmer's testimony that he expressly
disclaimed representation of any employees represented by
Local 27.
This situation is not, as General Counsel's brief suggests, a
runaway shop situation, inasmuch as the evidence indisputably
establishes that the decision to relocate was both based
entirely on sound business efficiency considerations and
antedated by about a full year the advent of District 50 on the
scene. On the other hand, neither is it a case governed by the
precedent in H K. Porter, Inc., 47 LRRM 1394, cited by
Respondents in view of the circumstances of that case in which
the dismissal of a representation petition was sustained in view
of the indications that few if any employees had indicated a
desire to relocate in the new operation. The question in the
instant case is whether or not District 50 was entitled to
represent employees in bargaining relative to terms and
conditions of employment in Brooklyn and as to the effect of
the move on employees then represented by District 50, as
well as on terms and conditions of employment applicable in
the New Jersey operation.
While it cannot be doubted that the successful organiza-
tional efforts of District 50 came at a time when they
presented genuine difficulties for Respondents in view of the
impending move, there does not appear to be any reason why a
labor organization such as District 50 which has secured
majority status in an appropriate unit, is not entitled to
bargaining notwithstanding such employer difficulties.' 3 The
hardships and selection of employees would themselves be
appropriate considerations in the bargaining. The fact that
Respondents appear to have contemplated, as hereinafter
discussed, employee representation by another Teamsters local,
would be a hardship of Respondents' own making. The
evidence indicates that District 50 was the statutory represen-
tative of a majority of employees at the time of its demand
and by refusing to treat it as such Respondents unlawfully
refused to bargain thereby engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act. In
reaching this conclusion I appraise the evidence as completely
devoid of indications that Respondents' refusal was based on
any good-faith doubt of the District 50 majority.
I believe Respondents' reliance on the Board's recent
decisions in The Pierce Governor Company, Inc., 164 NLRB
No. 2, and McLoughlin Manufacturing Corporation, 164
NLRB No. 23, is misplaced. In Pierce Governor the evidence
indicated that there was extensive bargaining on the subject of
the effects of the plant relocation on existing employees
Similarly in McLoughlin Manufacturing, the Board noted that
the union's intransigent attitude in earlier bargaining had been
a determining factor in the decision to close (subsequently, to
relocate) the plant and that, in fact, the union failed to request
bargaining with respect to interim employment. In the present
case, District 50 made it clear from the outset of its contact
with Respondents that it sought bargaining on the effect of the
move on the employees represented by District 50 as well as
on the move itself. The fact that bargaining with respect to the
decision to relocate would be virtually impossible would not
preclude bargaining respecting the selection of employees for
transfer and their terms and conditions of employment both
before and after the move.
C. The Discriminatory Layoffs
The complaint alleges that Respondents, on or about July
21, laid off 14 employees Juan Jiminez, Luis Esquilin,
Librado Medina Mendez, Aurelio Maza Vasquez, Moise Mojica
Negron, Julio Sanchez, Harry Citation, Julio Flores, Radames
A. Morales, Conrado Sanchez, Ramon Hernandez, Humberto
Nunez, Andrew Abreu, and Saturnino Ramos (incorrectly
13 It would be unrealistic to expect Respondents to bargain with
respect to the decision to relocate in view of the fact that hundreds of
thousands of dollars have already been committed to relocation. But the
effect on employees as well as conditions of employment at the new
location were clearly bargainable matters.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
listed in the complaint as Ramos Saturnino), and recalled
Saturnino Ramos and Harry Cintron on August 17 and 24,
respectively. It further alleges that the layoffs and refusals to
recall were in reprisal for the employees' membership in and
assistance of District 50. Respondents deny these allegations
As noted above, 13 of the foregoing signed cards for District
50 on June 3 and Harry Cintron signed a District 50 card on
the following day.14 General Counsel has conceded that there
is no direct evidence of knowledge on the part of Respondents
as to the identity of the District 50 supporters but relies on the
"small plant" doctrine as enunciated in A P. W. Products Co,
Inc., 137 NLRB 25, Manbeck Baking Company, 130 NLRB
1186, and Don Swart Trucking Co, Inc, 154 NLRB 1345.
The Board has, in these cases and others, held that employer
knowledge of the identity of those engaged in organizational
activity on behalf of a labor organization may be inferred from
the relatively small size of an employer's plant. It appears,
however, both on the basis of the Board's approach to those
cases and in principle that such an inference may properly be
made only where the organizational activity takes place in or
adjacent to the plant. There is no indication of any in-plant
union activity in the instant case. Furthermore, Jackowitz,
when confronted on June 7 with District 50's claim, naively
inquired of Pohmer and Rosario as to who were the employees
who had brought District 50 into the plant. I conclude that on
June 7 Jackowitz had no knowledge of the identity or the
number of District 50 supporters. The question presented
herein is whether or not Jackowitz somehow acquired such
knowledge by July 21 or, alternatively, whether the discharge
of virtually all production employees on July 22 was in reprisal
for the virtually unanimous support of District 50 among
employees. It appears from the evidence and from a stipulation
of the parties that the decision to relocate to Secaucus was
made in good faith for economic considerations and was
communicated to employees about a year prior to the actual
move. Pohmer and Rosario testified that in the course of the
June 7 discussion at the plant Jackowitz said that he wanted to
get rid of all the Brooklyn employees as they were no good, or
were a bad bunch. Jackowitz denied thus referring to the
Brooklyn employees and I credit his denial in this regard. The
evidence indicates that Jackowitz was genuinely apprehensive
concerning the transportation problems that Brooklyn em-
ployees would have in the event they were selected for work at
Secaucus and felt that they were generally suited only for
local, i.e., Brooklyn, employment.
On July 21 employees were notified by letter that the move
to Secaucus was nearing and that their services were no longer
required at the Brooklyn plant. They were paid accrued
vacation pay at that time and were advised that if they felt
they could possibly arrange to work in New Jersey they might
apply for work there and would be given every consideration.
Notwithstanding the general layoff five Carlton-Interstate
employees were transferred immediately to Secaucus. They
were Garcia, Betancourt, Byers, Carter, and Bridget. The two
Mendez brothers, who in Brooklyn had worked at Dean Street
on the Better Methods payroll and developed skills in the
assembly of the RR-50 Copy Maker were also transferred.
Garcia was the instigator of District 50 organization and
14 The District 50 cards of Betancourt and Cintron (Exhs. 9-J and
K) bear date of August 5, 1966 This is clearly erroneous as their reverse
side bears the Regional Office date -time stamp of July 19 1 credit
Betancourt had signed a District 50 card prior to the June 7
visit of Pohmer and Rosario. There is no indication in the
evidence that Respondents knew how many of Brooklyn
employees had signed District 50 cards nor who they were
Furthermore I credit Jackowitz's denial of knowledge of the
identity of District 50 supporters except as to Aurelio Maza
who attended a meeting on July 22 as a supporter of District
50, at which Jackowitz was present. By that time, however,
the selection of employees for transfer had certainly been
effectuated.
Appraising the evidence in its totality I find and conclude
that the selection of employees for transfer to Secaucus was
made on the basis of nondiscriminatory considerations related
to the availability of dependable transportation from Brooklyn
to the Secaucus jobsite or on the basis of needed skills or
abilities of those selected for transfer. In this regard I am
impressed by the complete absence of direct evidence of
animus on the part of Jackowitz against District 50 or against
employees who supported it. Jackowitz appears to be com-
pletely umnhibited in his discussion of events and it seems to
me that if his selection of employees for transfer were
motivated by anti-District 50 animus, there would almost
inevitably have been some anti-District 50 remarks at some
stage of the rapid-fire events occurring between June 7 and
July 22. I credit Jackowitz's denial of knowledge of the
identity of District 50 card signers at the time of his selection
of employees for transfer.
I conclude that the evidence does not preponderate in favor
of the conclusion that the employees named in the complaint
as discriminatees were laid off or refused recall in reprisal for
their membership in or support of District 50.
D. Assistance To and Support of Local 84
Local 84 had represented employees of the business
formerly located on the Secaucus site as well as those of
neighboring concerns. Although Jackowitz testified that a
representative of Local 84 telephoned him in June and stated
that Local 84 intended to organize Respondents employees in
Secaucus, Coffey testified that although he had been observing
the progress of the construction he knew of no production
employees at the Secaucus site by June 7, and that it was not
until sometime in July when the building was nearing
completion that he undertook organizational efforts. I find
and conclude that at the time of the June 7 demand of District
50 Jackowitz knew of Local 84's existence but had received no
demands from it for recognition nor had any reason to believe
that Local 84 represented or even had solicited any of
Respondents' employees as in fact it had not. I further credit
Pohmer's testimony that in the course of the June 7 discussion
at the Brooklyn plant, Jackowitz claimed to have a contract
with Local 84 covering the Secaucus plant and that this
presaged the recognition subsequently accorded to Local 84.
James Carter testified that he received a Local 84 card from
Cutri about July 11, apparently while working there on
temporary assignment as he was still employed at the Brooklyn
operation. According to his testimony Cutn instructed him to
fill it out. Byers, according to his testimony, was also while on
Rosario's testimony that he received them on June 4 from Garcia and
conclude that they were signed prior to the initial bargaining demand of
June 7
CARLTON PAPER CORP 163
temporary assignment in New Jersey given a Local 84 card by
Cutri who said that Local 84 was a good union and he should
fill out the card. Carmelo Garcia testified that Singleton
praised Local 84 and said that its representative was a good
man.
I credit the accounts of Carter, Byers, and Garcia and find
that Respondents' supervisors assisted and cooperated in
securing authorization cards for Local 84 in the Respondents'
premises in Secaucus. It appears that at the time of the signing
of the recognition agreement on August 17 Local 84 had cards
from only nine employees, three of which were the fruits of
Respondents' assistance to Local 84. At that time, Respon-
dents concede, they employed 13 or 14 production employees.
Under all the circumstances of the case I find and conclude
that the recognition of Local 84, particularly in the light of the
assistance given it by supervisory encouragement in the shop
and the clearly evident predetermination of Jackowitz as early
as June 7 to contract with Local 84, amounted to unfair labor
practices under Section 8(a)(2) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III,
above, and there found to constitute unfair labor practices,
occurring in connection with the operations of Respondents
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and
obstructing such commerce and the free flow thereof.
V. THE REMEDY
In view of the findings set forth above to the effect that
Respondents have engaged in certain unfair labor practices
affecting commerce it will be recommended that they be
required to cease and desist therefrom and take such affirma-
tive action as appears necessary and appropriate to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case , I make the following
CONCLUSIONS OF LAW
1. Respondents are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. District 50 and Local 84 are labor organizations within
the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of Respon-
dents, exclusive of warehousemen, shipping and receiving
employees, truckdrivers and helpers, represented by Local 27,
office clerical employees, field service employees, salesmen,
guards, watchmen, professional employees, and supervisors as
defined in Section 2(11) of the Act, constitute a unit
appropriate for collective bargaining within the meaning of
Section 9(b) of the Act
4 At all times from and after June 7, 1966, District 50 has
been the exclusive representative of employees in the aforesaid
unit for purposes of collective bargaining
5. By refusing from and after June 7, 1966, to bargain
collectively with District 50 as representative of employees in
the aforesaid appropriate unit, Respondents have engaged in
unfair labor practices within the scope of Section 8(a)(5) and
(1) of the Act.
6. By urging employees to become members of Local 84,
and by according Local 84 recognition as exclusive representa-
tive of employees at a time when Local 84 did not represent an
uncoerced majority of employees Respondents have engaged in
unfair labor practices defined in Section 8(a)(2) and (1) of the
Act
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
8. Respondents have not engaged in unfair labor practices
defined in Section 8(a)(3) of the Act.
[Recommended Order omitted from publication ]