Charm Handbags, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1968

170 N.L.R.B. 111 (N.L.R.B. 1968)

CHARM HANDBAGS, INC. 111
Charm Handbags , Inc. and Pocketbook and Novelty
Workers Union of N.Y., Local 1 , International
Leather Goods , Plastics and Novelty Workers
Union , AFL-CIO. Case 29-CA-857
March 8, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 2, 1967, Trial Examiner Herman
Tocker issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Charging
Party filed a letter adopting the General Counsel's
exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
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 and
briefs, the Charging Party's letter, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
' Genera ! Counsel 's exceptions to the dismissal of the complaint are in
large measure directed to the Trial Examiner's credibility findings. As the
clear preponderance of the relevant evidence does not persuade us that the
Trial Examiner's resolution of credibility issues was incorrect, we find in-
sufficient basis for disturbing his credibility findings and his ultimate con-
clusion that Respondent did not engage in unfair labor practices Standard
Dry Wall Products, Inc , 91 NLRB 544, enfd. 188 F.2d 362 (C A 3) As the
Trial Examiner for other reasons, which we find valid, concluded that
Respondent did not refuse to bargain with the Union in violation of Section
8(a)(5) of the Act, we find it unnecessary to consider the validity of his
finding that the Union's letter of November 21, 1966, did not constitute a
sufficient demand for recognition We disagree, however, with the Trial
Examiner 's conclusion as to the unit placement of Leah Seidenfeld, as her
father, Zoltan Seidenfeld, is a principal officer of Respondent and owner of
half its stock See Foam Rubber City #2 of Florida, Inc , 167 NLRB 623
TRIAL EXAMINER'S DECISION
HERMAN TOCKER, Trial Examiner: This case
came on to be heard before me in Brooklyn, New
York, on May 22, 1967, with additional sessions of
the hearing on May 23, 24, 25, 26, 31, and June 1.
A first charge was filed by Pocketbook and
Novelty Workers Union, N.Y., Local 1, AFL-CIO,
by its attorneys on January 23, 1967. The Board's
receipt stamp shows that this was at 9:38 a.m. A
second charge was filed by the same Charging Party
represented by the same attorneys on the same day.
The Board's receipt stamp shows that it was
received at 12:03 p.m. A third charge was filed by
the same Union February 3, 1967, with the Board's
receipt stamp showing 9:19 a.m. of that day. The
charges were received by Respondent and the
receipts for the first two were signed in its behalf by
Zoltan Seidenfeld, and that for the third by Martin
Pfeffer, the two principal officers and owners of all
or most of Respondent's stock.
The Pleadings
The complaint was issued March 22, 1967, and
duly served. In substance, it alleges (following con-
ventional introductory and jurisdictional allega-
tions) that the Union commenced its organizational
campaign on or about November 16, 1966, and,
within 2 days, was selected by a majority of
Respondent's employees in the appropriate unit to
act as their bargaining representative; that the
Union demanded that the Respondent recognize it
as such bargaining representative and bargain col-
lectively with it as such on behalf of the employees
in the unit; that since November 24, 1966, Respond-
ent has refused so to recognize and to bargain
with the Union; that beginning with or following the
Union's demand Respondent engaged in a wide
variety of violations of Section 8(a)(1) of the
Labor Management Relations Act, 1947, as
amended, including (a) various promises and grants
of benefits and improvements in both wages and
working conditions for the purpose of inducing em-
ployees not to become or remain members of the
Union and to refrain from assisting or supporting it,
(b) warnings and threats to its employees against
170 NLRB No. 16
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
becoming or remaining members of the Union or
supporting it, and (c) coercive interrogation of em-
ployees concerning their membership in, activities
on behalf of, or sympathy for the Union; that it vio-
lated Section 8(a)(1) and (3) by wrongfully "laying
off" five employees, Baskin , Munoz, Acevedo,
Boyd (sometimes referred to as Matthews), and
Maldonado, failing and refusing to recall Acevedo,
Baskin , Maldonado, and Munoz at any time, and
failing to recall Boyd until on or about March 2,
1967; that it violated Section 8(a)(5) because of its
alleged failure and refusal to recognize and bargain
in response to what is claimed to have been a good
and valid demand and, in connection with that con-
duct engaged in the 8(a)(1) and (3) conduct in
furtherance of a scheme, plan, or campaign "to un-
dermine the Union and to destroy its majority
status among the employees in the unit...."
Respondent, in its answer, specifically denied and
put in issue the allegation in the complaint that it
had shipped upon an annual basis more than
$50,000 of its goods across the State line in in-
terstate commerce. Although it had denied this al-
legation it failed to deny the conclusion of law to
the effect that it was engaged in interstate com-
merce within the meaning of Section 2(2), (6), and
(7) of the Act. It did not put in issue the other
usual and conventional introductory allegations nor
that to the effect that on or about November 24,
1966, it refused and continues to refuse to recog-
nize and bargain collectively with the Union as the
exclusive collective-bargaining representative of its
employees in the unit.
In addition to the denial that it shipped in excess
of $50,000 of its goods across the State line, it
specifically denied all other material allegations of
the complaint, including (a) that concerned with
the commencement of the Union's organizational
campaign; (b) that concerned with the alleged
designation of the Union as collective-bargaining
agent by a majority of the employees in the unit;
(c) that the Union has been and is now such exclu-
sive bargaining representative; (d) that on or about
November 21, 1966, the Union requested recogni-
tion and that Respondent engage in collective bar-
gaining with it as such exclusive collective-bargain-
ing representative; (e) that it engaged in any of the
alleged violations of Section 8(a)(1); (f) while it
admitted that on the dates listed in the complaint
the five employees there named had been "laid
off," it specifically denied the alleged failures and
refusals to recall, that the-layoffs were because the
employees had engaged in union or protected ac-
tivities , and that it had engaged in any of the acts
alleged for the purpose of undermining the Union
and destroying its alleged majority status. It also de-
nied all the remaining conclusionary allegations of
violation of law with the exception that it failed to
deny the final allegation to the effect that the acts
alleged (which had been denied) were related to
commerce and tended to lead to labor disputes bur-
dening such commerce.
Formal Problems Related to the Pleadings
Although it was alleged in the complaint that the
Respondent in this case was a single corporate enti-
ty, Charm Handbag, Inc., throughout the entire 7
days of the hearing counsel supporting the com-
plaint insisted that not only the business acts and
conduct of this corporate entity, Charm Handbag,
Inc., were to be considered for all purposes but that
consideration was to be given as well to the alleged
business acts and conduct of a predecessor partner-
ship, Brooklyn Handbag Company, in which its two
principal officers and stockholders (Seidenfeld and
Pfeffer) had been partners, and also to 'another
predecessor business which Pfeffer, alone, owned
as a single proprietorship. The entity, Charm Hand-
bag, Inc., was incorporated in September 1966.
Concededly, it took over Brooklyn Handbag's busi-
ness. There is however not a single allegation in the
complaint concerning either the succession by
Charm to either the Brooklyn Handbag business or
Pfeffer's prior single proprietorship., Although
Respondent's attorney consistently maintained this
as an issue and the attention of counsel supporting
the complaint was directed to it repeatedly, she
made no effort at any time to amend the complaint
to include additional allegations to show continued
community of interest justifying the treatment of all
as one. Whether this has any significant or material
effect on the case as a whole becomes, however,
wholly irrelevant in view of the result which I shall
reach ultimately on the merits.
Another problem of pleading with which we were
confronted was the "boilerplate" allegation that
Charm (the corporate entity) "sold and distributed
at its plant handbags and other goods and materials
valued on an annual basis at in excess of $50,000;
of which goods and materials valued at in excess of
$50,000, on such annual basis, were shipped from
the_ plant in interstate commerce directly to states
of the United States other than the state in which it
is located." This was denied expressly by the
Respondent. From almost the very beginning it was
quite apparent that this denial was neither formal
nor frivolous and that there was grave doubt that
the allegation could be supported. Counsel support-
ing the complaint was well aware of this problem
because, by letter dated May 9, 1967, Respondent's
attorney had informed her that Respondent's "total
annual gross revenues are in the approximate
amount of $85,000, of which $39,000 are sold to
firms directly outside the State. The remaining
$46,000 are sold to firms doing business and
located within the State of New- York, which firms
include Dandy Handbag, Inc., Starline Handbags
Co., and Artamount Handbag."
Neither before the commencement of the hearing
nor at the time when it first was convened did
counsel supporting the complaint move to amend it
to allege the theory upon which she intended to
rely for the Board to exercise its discretionary pol-
icy for taking jurisdiction-a combination of direct
CHARM HANDBAGS, INC.
and indirect outflow aggregating more than
$50,000. Instead, and despite the fact that jurisdic-
tion had been put in issue, the first day of the hear-
ing was devoted to taking the testimony of the
Union's general organizer and that of Martin
Pfeffer, an officer of the Respondent, who testified
as a witness under Fed. R. Civ. P. 43(b) for almost
4 hours. On the second day, still without an amend-
ment of the complaint, a witness was called for the
purpose of giving testimony directed to the proof of
the "direct and indirect outflow" theory. This wit-
ness had not been interviewed by counsel and he
was unable to testify as to out-of-State sales by his
company, Artamount, Inc. He was excused with the
proviso that his company remained subject to the
subpena. This was on May 23 but it was not until
the last day of the hearing, June 1, that a represent-
ative of his company, with knowledge of the facts,
was called to testify.
The efforts to satisfy the Board's discretionary
policy with respect to the taking of jurisdiction con-
tinued on through and including the fifth day of the
hearing without an amendment of the complaint.
On that day, following an argument that Respond-
ent had conceded jurisdiction because it had failed
to deny the conclusion of law to the effect that it
was engaged in commerce "within the meaning of
Section 2(2), (6), and (7) of the Act," although it
had denied expressly the immediately prior allega-
tion of cross-State shipment of goods valued in ex-
cess of $50,000, on motion on its behalf I allowed
an amendment of the answer specifically denying
the previously undenied conclusion of law. Then,
finally that day, following an extended ruling by
me, based on my interpretation of the Board's deci-
sion in Siemons Mailing Service, 122 NLRB 81
(which counsel supporting the complaint had
brought to me at my request), while still asserting
that an amendment to the complaint was unneces-
sary, she moved that it be amended as follows:
During the period from its inception in or
about May, 1966 to date, Respondent in the
course and conduct of its business operations
manufactured, sold and distributed at its plant
handbags and other goods and materials valued
on an annual basis at in excess of $50,000, of
which goods and materials valued at in excess
of $39,000, on such annual basis, were shipped
from the plant in interstate commerce directly
to states of the United States other than the
state in'which it is located, and of which goods
and materials valued at in excess of $11,000,
on such, annual basis, were shipped from the
plant to firms located in the State of New
York, which firms are themselves in interstate
commerce on a direct outflow basis, i.e., each
of which themselves ship from-each of which
... ships from its plant in interstate commerce
directly' to states of the United States other
than New York State goods and materials
valued at in excess of fifty thousand dollars.
113
Although Respondent's attorney strenuously op-
posed the amendment, stressing that the application
to amend came on the fifth day of the hearing and
that he had provided counsel with the sales infor-
mation set forth in his letter to her because of his
impression that the basis for the complaint "lay in
direct outflow," I concluded that he should have
been aware of the trend in which the case would go
and that he had not been prejudiced. I, therefore,
granted the motion to amend in the exercise of my
discretion. Witnesses in support of the jurisdictional
allegations, as thus amended, finally were called on
the sixth and seventh or last days of the hearing.
The Issues
Although I shall set forth the specific issues
which would have to be decided adversely to the
Respondent to support findings of violation, the all-
important and overriding concern is whether the
witnesses called in support of the complaint are to
be credited. Unless they are credited there just is
no case. A conclusion that "any person named in
the complaint has engaged in or is engaging in any
. unfair labor practice" may be made only "upon
the preponderance of the testimony taken. . . . "
Labor Management Relations Act, as amended,
Section 10(c). It is rather trite, of course, to say
that the burden of proof is on the General Counsel
and it never shifts to a person charged. "The pre-
ponderance of the testimony" does not mean any
testimony. The record necessary to carry the
General Counsel's burden of proof must be "sup-
ported by and in accordance with the reliable,
probative, and substantial evidence." 5 U.S.C. § 55
6(d). I preface my statement of the specific issues
with this rather elementary exposition of the factors
governing the making of a decision because of the
nature of my ultimate conclusion which is based on
my observation of the proponents' witnesses on the
witness stand, the conflicts within their own trial
testimony and those of the' trial testimony as op-
posed to that given in ex parte statements to Board
agents, and documentary evidence which is incon-
trovertible and has survived every attack.
Apart from this overall and major issue of the
credibility of the witnesses, the specific issues are:
1. Regardless of the fact that Respondent clearly
is engaged in interstate commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, does it
come within the area laid out by the Board in
Siemons Mailing Service, supra, as the minimum of
commerce necessary to invoke the process of the
Board?
2. Did the Respondent violate Section 8(a)(1) of
the Act by engaging in or resorting to coercive in-
terrogation, threats, warnings, and promises and
grants of benefits, thus interfering with protected
rights of employees?
350-999 0 - 71 - 9
114 DECISIONS OF NATIONAL
3. Were the employees who, as alleged in the
complaint, were "laid off," actually discharged or
"laid off" in violation of Section 8(a)(1) and (3) of
the Act'for the purpose of discouraging them from,
and retaliating against them for, engaging in union
activities and "to encourage or discourage member-
ship in" the Union?
4. Did the Union represent a majority of the em-
ployees in the unit on November 21, 1966, when, it
is claimed, that it made its demand for recognition
and bargaining or on November 24 and thereafter
when it is claimed that Respondent improperly re-
jected its alleged demands, and thereafter con-
tinually failed or refused to recognize and bargain
with it?
5. Was the Union's letter of November 21, 1966,
a good and sufficient demand for recognition and
to engage in collective bargaining?
6. Regardless of whether that letter was a suffi-
cient demand (both for recognition and to engage
in collective bargaining), did the Respondent
wrongfully refuse to recognize and bargain with it?
Important Witnesses Not Called
The complaint alleges that five employees are
victims of violations of Section 8(a)(1) and (3)-
Aaron Baskin, Daisy Munoz (sometimes Daisy
Olivera), Luis Acevedo, Olimphia Ivy Boyd (some-
times Olimphia Matthews), and Sara (Sarita) Mal-
donado.
Although there is testimony by Feldman and Gar-
cia, both union organizers, that Baskin was an old-
time union member and was an aggressive volun-
teer actively seeking union organization of the
shop, he was not called to testify and no explana-
tion is given for not calling him.
Munoz (Olivera) was not called and no explana-
tion is given for failure to call her. The only possi-
ble explanation is found in Boss Pfeffer's Fed. R.
Civ. P. 43(b) testimony that "she went to Puerto
Rico or we had laid her off because the work was
slow." Counsel supporting the complaint and coun-
sel for the Charging Party assert that Pfeffer was a
totally discredited witness but, if we accept as a
possible explanation for her not being called that
she went to Puerto Rico, we must accept the
further statement that her employment terminated
because she went to Puerto Rico or because she
had been laid off "because the work was slow." In
this last eventuality, of course, if she failed to ap-
pear at the hearing because she went to Puerto
Rico after being laid off obviously the derivative
8(a)(1) and the 8(a)(3) charges, to the extent that
they are related to her, would have to be dismissed
forthwith.
Ivy Boyd (Matthews) was not called and no ex-
planation is given for the failure to call her. As a
matter of fact, although it is alleged in the com-
plaint that she was wrongfully laid off on December
LABOR RELATIONS BOARD
20 and not recalled until on or about March 2,
1967, the unassailable payroll records show that
she was employed by the Respondent in the weeks
ending February 17, 24, March 3, 10, 17, 24, 31,
April 7, 14, and 21. The Hebrew or Jewish Pass-
over in 1967 commenced on April 25 and con-
tinued through and including May 2. Respondent's
payroll records show that the establishment was
closed during that week. Obviously, when
Matthews last worked in the week ending April 21,
she was laid off for the Jewish -holiday. It appears
that she did not return to work following that time.
There being no evidence to the contrary, it must be
inferred that she voluntarily concluded her employ-
ment at that time and just never returned.
Baskin, Munoz, and Matthews were alleged
8(a)(3) discriminatees.
There remain also the other alleged card
signers-apart from Acevedo, Maldonado, and
Rivera, who testified-where were Vasquez and
Cruz? No explanation is given for failing to call
them. Moreover, the payroll records demonstrate
that Cruz must have been pretty close at hand-she
worked for the Respondent or its predecessor as
late as the week ending April 21, 1967, and every
single week prior thereto beginning at least with the
week ending July 29, 1966, and excepting only the
Christmas and New Year weeks.
It is hardly necessary to iterate the oft-repeated
observation that the failure of a particular party to
produce witnesses who are or ought to be within
that party's control or subpena power without
adequate explanation for such failure to produce,
suggests quite strongly that, if called, such witnesses
would have testified to facts contrary to the posi-
tion espoused by that party.
Without regard to the witnesses called for the
purpose of establishing discretional jurisdiction,
those witnesses on whom counsel supporting the
complaint must rely for the proof of the violations
alleged in the complaint are only the two union or-
ganizers, Feldman and Garcia, only two of the al-
leged wrongfully discharged employees, Acevedo
and his relative, by marriage, Maldonado, and a
third former employee, Rivera, who concededly
voluntarily left Respondent's employ. I shall discuss
their testimony below.
The Integrity of the Payroll Records
I have referred to the payroll records as being
"unassailable." Counsel supporting the complaint,
from the very beginning of the hearing, and con-
sistently and continually throughout the hearing,
charged that these payroll records were false and
had been fabricated. This is a_very serious charge
and becomes even more serious when made by a
government attorney. Yet there was a complete
failure of proof to substantiate the charge. On the
CHARM HANDBAGS, INC. 115
contrary, the proof is crystal clear, based upon the
actual appearance of these records, the credible
Fed. R. Civ. P. 43(b) testimony given by Boss
Pfeffer about them, and documentary evidence in
the form of checks delivered and paid to the em-
ployees which checks dovetail into the records, that
the payroll records are indeed unassailable.
The Bearing on this Case of the Fact That
Respondent Rested at the Conclusion of the Case-
in-Chief
A respondent always may rest at the conclusion
of the case-in-chief following a motion to dismiss or
for a directed verdict. This normally occurs without
any proof in rebuttal of evidence given in support
of the charges and the complaint may be dismissed
or a directed verdict granted without such proof.
The Respondent is not in that position in this case.
To say that there is no evidence in defense of the
charges in this proceeding or that certain of the
evidence has not been rebutted by affirmative
testimony in denial is not an accurate statement of
the record. In anticipation of the possibility that the
Respondent might allege economic reasons to justi-
fy the layoffs, counsel supporting the.complaint in-
jected into the primary case or case-in-chief the
issue of seasons in the handbag industry. Respond-
ent's attorney did not object. On the contrary, he
"made hay" of it by bringing into the direct or
case-in-chief much evidence which I would accept
as credible, if it became necessary to consider it,
that there are in fact seasons in the pocketbook
manufacturing business. Furthermore, Respond-
ent's officer, Pfeffer, was on the witness stand as a
Fed. R. Civ. P. 43(b) witness on five of the seven
days of the hearing. During his testimony he gave
much evidence which, also if it became necessary
to consider it, would be regarded as credible and
considered as supporting the defense of or rebuttal
of the charges of violations.
Much criticism has been leveled at Pfeffer by
counsel supporting the complaint and the attorney
for the Charging Party because of his alleged failure
to remember certain conversations claimed to have
been held with him and lack of knowledge of al-
leged conversations between others and his as-
sociate, Seidenfeld. To generalize and to charac-
terize as evasive statements by a witness that he
does not remember and to conclude therefrom that
he is not to be credited is to paint with too broad a
brush. A witness when he says that he does not re-
member something happening, particularly one like
Pfeffer who thinks in a language other than English,
may just as well be understood as denying that it
did happen when he says he does not remember it
having happened. In other words, it did not happen
according to his memory.
Emphasis also is laid on the fact that Seidenfeld
was not called by the Respondent to answer or con-
trovert testimony as to the alleged conversation
with him and alleged statements or remarks made
by him. The General Counsel had every opportuni-
ty to subpena him as a Fed. R. Civ. P. 43(b) witness
and to take his testimony, had she so elected. As a
matter of fact, when she specifically and pointedly
was asked by me whether she had issued a subpena
ad testificandum to Pfeffer or to Seidenfeld, she
stated that it had been issued to Pfeffer and not to
Seidenfeld. There is no reason now to complain or
to point to the fact that Seidenfeld did not give
testimony at the hearing. If the party who is "the
proponent of a rule or order (and) has the burden
of proof," (5 U.S.C. § 556(d)) fails to meet that
burden of proof, why should the time of the Trial
Examiner, all attorneys, all parties, and the money
of the taxpayers and of the Respondent be wasted
in hearing witnesses in the defense of a case not
proven?
Now, upon the whole record, my observation of
the witnesses, my careful consideration of the docu-
mentary evidence, my careful consideration of the
oral arguments made by counsel for the Charging
Party and by counsel for the Respondent at the
conclusion of the hearing, my careful reading of the
brief submitted by the General Counsel following
the conclusion of the hearing, and, after entering an
order making certain corrections of the record in
response to a motion made by the General Counsel
and a notice heretofore served by me, I hereby
make, in addition to the foregoing preliminary
findings of fact, the following further
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Charm Handbags , Inc., is the Respondent in this
proceeding and will be referred to either as Charm
or as Respondent. It is a corporation duly organized
under the laws of the State of New York and was
incorporated in September 1966. At all times
material herein it has had its principal office and
place of business at 141 South Fifth Street,
Brooklyn, New York, where it is and at all material
times herein has been engaged in the manufacture,
sale, and distribution of handbags.
II. THE LABOR ORGANIZATION INVOLVED
Pocketbook and Novelty Workers Union of N.Y.,
Local 1, International Leather Goods, Plastics and
Novelty Workers Union, AFL-CIO , is, and at all
times hereinafter mentioned was, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. JURISDICTION
Inasmuch as the Respondent admittedly sold and
shipped to business firms outside the State of New
York goods, wears, and merchandise of a value of
approximately $39,000, it is engaged in interstate
commerce. The mere fact however that Respond-
ent is engaged in interstate commerce is not suffi-
cient to invoke the process of the Board. The Board
has an understandable concern about "the max-
imum workload that can be expeditiously and effec-
tively handled ... within existing budgetary policies
and limitations. To broaden its exercised jurisdic-
tion (without some restraint on its discretion in the
taking of jurisdiction) ... would ... produce a
caseload of such proportions as seriously to
lengthen the time for processing cases, thus lessen-
ing the efficacy of the Board as a forum to which
labor disputants may turn for aid in resolving their
disputes Consequently, with due regard to the
opinion of the United States Supreme Court in
Guss, d/bla Photo Sound Products Manufacturing
Co. v. Utah Labor Relations Board, 353 U.S. 1, the
Board in Siemons Mailing Service, 122 NLRB 81,
set as a standard for taking discretionary jurisdic-
tion a $50,000 outflow-inflow standard for non-
retail enterprises. The Respondent in this case is a
nonretail enterprise and is subject to that $50,000
category. However, it exported goods valued at
only about $39,000 across the line outside of New
York State. In Siemons, the Board said,
... [I]t will best effectuate the policies of the
Act if jurisdiction is asserted over all nonretail
enterprises which have an outflow or inflow
across State lines of at least $50,000, whether
such outflow or inflow be regarded as direct or
indirect. For the purpose of applying this stan-
dard, direct outflow refers to goods shipped or
services furnished by the employer outside the
State. Indirect outflow refers to sales of goods
or services to users meeting any of the Board's
jurisdictional standards except the indirect out-
flow or indirect inflow standard. . . . In apply-
ing this standard, the Board will adhere to its
past practice of adding direct and indirect out-
flow, or direct and indirect inflow. It will not
add outflow and inflow.
Respondent agreed that it sold an aggregate of at
least $46,000 worth of goods to three New York
State firms-Dandy Handbag, Inc., Starline Hand-
bag Co., and Artamount, Inc. Artamount purchased
goods from Respondent, or its predecessor,
Brooklyn Handbag, in the aggregate, in an amount
exceeding $6,000 during the period following May
23, 1966. Its out-of-State shipments exceeded
$70,000. Respondent, or its predecessor, Brooklyn
Handbag, acted as a contractor in the manufacture
of bags for Dandy Handbag Corporation. After
deducting the value of the goods and materials
furnished by Dandy to Respondent or its predeces-
sor, Dandy 's purchases amounted to a net figure of
approximately $ 8,000. Dandy ships goods across
the State line outside the State of New York to
various places including Texas, California, and Il-
linois. The value of such goods shipped across State
lines exceeds $50,000. Starline Bag Company is en-
gaged in business within New York State . It made
aggregate purchases from both Respondent and its
predecessor , Brooklyn Handbag, during the year
1966 in an amount approximating $ 1,700. It made
additional purchases from Respondent during the
year 1967, prior to the hearing , in an amount ap-
proximating $ 2,800. Although it was in process of
liquidation at the time of the hearing, during the
calendar year 1966 it had shipped goods across
State lines to customers outside the State of New
York in an amount exceeding $480,000. ( It is not
necessary in this case for me or the Board to con-
sider whether the fact that a company is being
liquidated excludes it from being used as a factor in
the Siemons formula.)
As noted before , the complaint was not drawn in
a form to bring into the proceeding any entity other
than the corporation , Charm Handbags , Inc. It is
clear , however , that Charm Handbags, Inc., is the
successor and corporate form of the business for-
merly operated under the name Brooklyn Handbag
Company. See Malcolm Konner Chevrolet, Inc., 141
NLRB 541, and Downtown Bakery Corp., 139
NLRB 1352. Despite the fact that the evidence
demonstrates this to be the case , no motion was
made at the conclusion of the hearing to conform
the pleadings to the proof . While it cannot be said
that the Respondent expressly or impliedly con-
sented that this issue be tried and thereby became
subject to Fed. R . Civ. P. 15(b), I find it unneces-
sary, in view of the ultimate result which I shall
reach on the merits , to decide the technical question
one way or the other . App;ying the Siemons formula
and also the rule governing successor business en-
terprises, at least for the purpose of going forward
with this decision , it is my conclusion that the
Board, in accordance with its statements in M.
Benevento Sand & Gravel Co., 138 NLRB 110, does
take discretionary jurisdiction over the Respondent
in this proceeding.
IV. THE STATUS OF LEAH SEIDENFELD
Leah Seidenfeld is the daughter of Zoltan
Seidenfeld, the owner of fifty percent of the cor-
porate Respondent's stock and a principal officer
thereof. The Respondent in this case, being a cor-
poration, we are not concerned directly with that
portion of the definition of an employee in Section
2(3) of the Act which excludes from the employee
status "any individual employed by his parent or
spouse." While, in O. U. Hoffmann, et al., 55 NLRB
683, the Board held that the son of a member of a
CHARM HANDBAGS , INC. 117
partnership is not an employee within the meaning
of Section 2(3) of the Act, it held in Frigo Brothers
Cheese Corporation, 50 NLRB 464, that the son of
an officer of a corporation was. This was not clearly
an issue in Palestine Telephone Company, 154
NLRB 1325, but the latter result is indicated there
as well.
While strenuous efforts were made to persuade a
conclusion that Leah Seidenfeld was a supervisory
employee because of such factors as her delivery to
an employee of a check on a single occasion, her
occasional answering of the telephone, her occa-
sional "handing" (not assignment) of work to one
or more employees, and a herculean effort to make
it appear that she was left in charge of the shop by
resorting to questions consisting of a process of
elimination, it is my finding and conclusion that she
definitely was not a supervisor and, if it were to
become necessary (as it will not), to determine
whether she should be counted as an employee-
member of the unit, it is my holding that she was
such a member and a mere employee just like any
other employee in the unit.
V. THE ALLEGED DEMAND FOR RECOGNITION AND
COLLECTIVE BARGAINING ON BEHALF OF THE
EMPLOYEES IN THE UNIT
Although counsel supporting the complaint relies
on what is sometimes referred to as "the entire pic-
ture" to support the claim that the Respondent
should be found in violation of Section 8(a)(5) for
refusal to recognize and bargain with the Union,
main reliance is on a certain letter dated November
21, 1966. I quote the text in full:
Brooklyn Handbag Co.
141 South 5th Street
Brooklyn, N.Y. 11211
Gentlemen;
This is to inform you that the workers in
your employ are now members of the Pocket-
book & Novelty Workers Union located at 100
West 32nd Street, New York N.Y. 10001.
We have been instructed to inform you that
we would like to get together with you for the
purpose of discussing hours of work, welfare
benefits, increases in wages and all other terms
and conditions of the Handbag Industry.
Hoping to hear from you I remain,
and treasurer of the Union and Respondent admits
that it received it.
Again reverting to the question of pleading and
who the Respondent in this case is or ought to be, I
note here that the letter was not addressed to the
corporate entity, Charm Handbags, Inc., the
Respondent, but was addressed to "Brooklyn Hand-
bag Co." Just for the purpose- of moving the case
along, I again refrain from indulging in speculation
or raising problems as to whether a demand on
Brooklyn Handbag Co., which was a nonexistent
business in November 1966, should be regarded as
a demand on a corporate entity, Charm Handbags,
Inc., the only Respondent in this case. I pause only
to say that this was an issue which Respondent al-
ways maintained and with respect to which it con-
tinually voiced objections, making clear its conten-
tion that the pleadings were not so framed as to
permit proof that the corporate entity and Brooklyn
Handbag Co. were one and the same.
It is to be noted that although the letter casually
states that "the workers in your employ are now
members" of the Union, it does not tell how many
of those workers are members and it makes no
offer to demonstrate or prove that a majority of
employees in any particular unit are members.
Respondent, most assuredly, must have known that
Leah Seidenfeld, Herman Kupfer, and probably
Ruth Schuster were not members of the Union.
However, we never arrived at the stage in this case
where it was put to the necessity of litigating the ac-
tual number of employees and/or members in any
unit, however defined, at any particular time. The
first paragraph of this letter is somewhat ambiguous
and it is patently susceptible to a reasonable doubt
on the part of this Employer, or any employer to
whom it may have been addressed, as to whether,
in fact, the Union did represent a majority of the
workers in an appropriate unit.
If it were not for the indefiniteness of the words
"the workers in your employ are now members," of
course no question could be raised as to the fact
that union membership in and of itself will
authorize a union to bargain collectively on behalf
of the member. Lebanon Steel Foundry v. N.L.R.B.,
130 F.2d 404 (C.A.D.C., 1942), cert. denied 317
U.S. 659; and see Food Machinery Corporation, 41
NLRB 1428, 1445-46, where the Board said, "[I]t
is well established that the signing of an application
for membership in a labor organization in itself
constitutes a designation of that organization as a
bargaining agent."
The real problem arises, however, with the
second paragraph of the letter. It is elementary that
the least that a union can do, if it seeks to make an
Very truly yours ; effective demand on an employer that the employer
PHILLIP LUBLINER
Manager, Sec., Treas.
This letter was signed by the manager , secretary,
engage in collective bargaining with it on behalf of
the employees in the unit which the Union claims it
represents, is to make the demand clear and
unequivocal . Walford Cabinet Company, 95 NLRB
1407, 1408. Apart from the failure to assert that
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union represented a majority of the employees
in any particular unit and its failure to offer to
demonstrate that it did represent such a majority,
there is no request whatsoever that the employer
recognize it as a bargaining agent on behalf of its
employees. Authority to bargain, within the rule of
Lebanon Steel Foundry, 130 F.2d 404, above, is not
synonymous with a demand to bargain.
The writer of the letter merely says (a) that in-
structions have been issued to him or the Union,
(b) to inform Brooklyn Handbag, (c) that the
writer or the `Union would like "to get together"
with the addressee, (d) "for the purpose of
discussing hours of work, welfare benefits, in-
creases in wages and all other terms and conditions
of the Handbag Industry." (Emphasis supplied.)
There is nothing in this letter which states that if
the "hoping" of the writer "to hear" became real-
ized and when the parties "get together" for the
"discussion ... [of matters involving] the Handbag
Industry," that discussion would be concerned with
collective bargaining on behalf of the Respondent's
(Charm's) employees. I hope that I do not become
boresome when I repeat that the letter talks only
about -a discussion concerning various matters in
"the Handbag Industry." The various working con-
ditions, benefits, hours of work, etc., in the hand-
bag industry may be an interesting subject for a the-
sis to be written' in a high school or college course
on labor-management relations or industrial
management but it is hardly a theme upon which
two $91-a-week workers trying to earn a living by
courageously undertaking private enterprise in this
capitalistic economy and era of big business and
conglomerates would care to undertake a
philosophical discussion. That a philosophical or
socio-economic betterment conference might have
been contemplated is a justifiable conclusion from
certain testimony given by Union Organizer Feld-
man, if any of his testimony can be credited, to the
effect that the Union takes a very real interest in
the welfare and advancement of small businesses
started by former workers in the industry. I gather
from his testimony that he sought to persuade me
that the union attempts to improve their economic
conditions by getting business for them, and by
acquainting them with prevailing prices for goods
manufactured by them so that, in addition to im-
proving the working conditions of employees, the
conditions of the former workers, who had become
bosses, also may be improved because those bosses
have demonstrated a tendency to work all hours of
the day and night and to have their children, wives,
and relatives work for them without taking into
consideration the economic value of such labor as a
factor in determining the price of the manufactured
product.
Consequently, it is my holding and conclusion
that this was not a sufficient demand upon the
Respondent that it recognize the Union as bargain-
ing agent for its employees in that it contained no
representation or claim that the Union represented
a majority of the employees and that the letter was
not, in any event, a demand that, following or coin-
cidental to recognition, Respondent bargain collec-
tively with the Union as the bargaining agent of its
employees for the purpose of entering into a con-
tract governing the wages, hours, and working con-
ditions of those employees. Barker's East Main Cor-
poration, 142 NLRB 1194 at 1200-01.
Despite this ruling, I shall go further into a con-
sideration of the evidence in this case to the extent
that an alleged violation of Section 8(a)(5) may be
involved separate and apart from the alleged
8(a)(1) and (3) violations.
VI. THE ALLEGED UNFAIR LABOR PRACTICES
I give consideration first to the oral testimony
given by witnesses Rivera, Maldonado, and
Acevedo. They are the only employees who were
called to testify. Only two of them, Maldonado and
Acevedo, are claimed to have been 8(a)(1) or (3)
discriminatees. The other three alleged 8(a)(3) dis-
criminatees, Baskin, Munoz, and Boyd were not
called.
Victor Manuel Rivera was not employed by the
Respondent at the time of the hearing and there is
no claim that he was discharged. It is clear, and
there is no dispute, that he quit his job of his own
volition. While it was not expected that he would
be an important witness, the credibility to be ac-
corded to his testimony and its veracity or lack of
veracity have become extremely, important. This is
because he was called to testify briefly in support of
an alleged 8(a)(1) allegation and to identify his
union card in support of Acevedo's testimony as to
the manner in which and the time when it was ob-
tained. It was demonstrated conclusively that his
testimony was false, that, as a consequence,
Acevedo's testimony also had been false, and that
therefore the validity of most of the remaining al-
leged union membership cards was subject to the
most serious doubt and the distinct probability that
they had no validity.
Rivera testified that he signed his union member-
ship card on November 18, 1966, and that at the
time that he signed it he wrote that day's date,
November 18, on the card. He said he signed it in
the factory known to him only by the name
Brooklyn Handbag. He emphasized that this was
done on November 18, by asserting it was a Friday.
According to the calendar it was. He said he
received the card from Luis. (Luis is Acevedo.) (It
is interesting also to note that, in describing
Acevedo's work, he said he "used to cut, worked
the machine and handled work to the girls, you
know, to the operators." This business of handing
the work to the girls is one of the elements on which
counsel supporting the complaint relied, but which
CHARM HANDBAGS, INC.
I have discarded, in her effort to prove that'Leah
Seidenfeld was a supervisor.) He continued that,
after he signed the card he returned it to Acevedo,
about 12 p.m., lunchtime, inside the factory. He
became quite emphatic in his testimony that he had
worked for "Brooklyn Handbag" in the week end-
ing' November 18, was not sure how many days he
had worked, but had worked at least two although
he did not work on Friday, November 18. He
rebuilt the week by saying that he had worked on
Monday and Tuesday, had become sick on Wed-
nesday and remained out of work Wednesday,
Thursday, and Friday but was not sick enough not
to go to the shop on that Friday, November 18.
The circumstances of his leaving Respondent's
employ, according to his testimony, are that when
he entered the factory on November 18, he ap-
proached Pfeffer, claimed he was not making
enough money, wasn't being paid for overtime and
wasn't being paid for holidays, and said that he was
quitting. Pfeffer attempted to dissuade him by of-
fering him an increase of pay to $60, but Rivera
declined this because, as he told Pfeffer, "by Janu-
ary he had to do it anyway," On that day his conver-
sation was only with Pfeffer and he did not talk
with Seidenfeld. The testimony continued with
what appears to have been a change of mind
because he said he returned to the factory about
Wednesday or Thursday of the following week, ask-
ing for work but that Pfeffer at that time spoke up
"about some union cards ... [and that Rivera had]
signed a union card." In response, Rivera said that
he had, and this brought back the response that
business "was slow and he didn't need nobody." In
addition, in response to leading questions from
counsel supporting the complaint and her inquiry
whether Pfeffer had used "a curse word or what?"
the witness agreeably answered, "yes, a curse
word."
His direct testimony was concluded with what
was sought to be an explanation for his being paid
on a Friday when the regular payday was Monday.
He agreed that normally he would have been paid
on the following Monday if he had worked on Mon-
day and Tuesday of a particular week but he was
paid on Friday because he specifically went to the
factory to get his check at 12 noon on that day.
In summary, therefore, Rivera's testimony is to
the effect that on Friday, November 18, he signed a
union card, that i he worked only on Monday and
Tuesday of that particular week ending Friday,
November 18, that when he attempted to become
reemployed after quitting voluntarily, Pfeffer, one
of the bosses, after ascertaining that he had signed
a union card, refused to reemploy him on the pre-
text that there was ' no work and uttered a curse
word. All this turns out to be utterly incredible in
the light of what was developed on cross-examina-
tion.
After reaffirming that he received his check on
the 18th and cashed it about 3 p.m. on that day, he
119
was confronted with the affidavit he gave to a
Board agent. The first discrepancy found in this af-
fidavit is that in three instances, contrary to his
testimony on the witness stand, he had stated that
he worked at Respondent's establishiment on
Friday "That same day, Nov. 18, 1966, was the last
day I worked at Charm Handbags. When Luis
Acevedo gave me the card I told him that this was
my last day working here. I only worked the morn-
ing of that day...."
Although, in his trial testimony, he swore that he
had spoken only to Pfeffer about the reasons for his
quitting his job, in his affidavit he says he "told
both bosses Mr. Pfeffer & Mr. Seidenfeld that
morning that [he] was going to quit and [he] asked
them to get [his] check ready." Although, in his
oral testimony, he had asserted that his bosses did
not beg him to stay, in his affidavit he said, "[T]hey
kept on beg ing me but I still told them no." '
In the afdavit Rivera said, "While I was there
the bosses never spoke to me or anyone else in my
presence about the Union. All I know is that I
signed a card that day and left." There is not a word
in this affidavit about the alleged return to the shop
in the middle of the following week for the purpose
of applying for reemployment and a conversation at
that time with any boss in which he was asked
whether he had signed the union card and when,
having been told that he had, any boss denied him
reemployment upon the pretext ' that' business was
slow. The failure or omission to include in the ex
parte statement given to the Board agent reference
to such rank discrimination because of union mem-
bership is quite significant. (And this is not the only
time we find such an omission in this proceeding.)
Its impact in connection with the resolution of
credibility issues was noted by the United States
Supreme Court in Jencks v. United States, 353 U.S.
657, 667, where the Court said:
The omission from the reports of facts related
at the trial, or a contrast in emphasis upon the
same fact, even a different order of treatment,
are also relevant to the cross-examining
process of testing the credibility of a witness'
trial testimony.
Next we have a two -pronged inconsistency. At
the hearing Rivera testified that when he reapplied
for reemployment the next week after November
18, he told Pfeffer that he had signed a union card.
If he told Pfeffer this, what would have been the
point of Pfeffer asking him "about 3 weeks" before
January 31, 1967, when Rivera sought to obtain a
job for his sister, whether he "signed or knew
anything about union cards" to which Rivera, con-
trary to his alleged earlier affirmative answer, then
answered, "No." Bad as this may appear for
Rivera's testimony, it is only the beginning.
He insisted at the hearing that he did not get a
check on November 14, but, when he was told that
November 14 had been a Monday, he said that any
check he might have received on that day would
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been for the whole week's work in the previ-
ous week, during which he had worked a full week.
No Monday check could have been for $36.54
because the Monday check of November 14 was
for a full week's work. He was very insistent about
this and sought to nail it down quite firmly by testi-
fying again that November 18, the Friday on which
he signed the union card, was the end of the week in
which he had worked only 2 days, Monday and
Tuesday, but that in the preceding week he had
worked a full week. Again, contrary to what he had
said in his affidavit to the Board agent, he repeated
that he did not work on the day that he signed the
union card. After a futile attempt on the part of
Respondent's attorney to obtain a concession from
counsel supporting the complaint as to the actual
date 'when the witness had quit his job (not
November 18) he was forced to continue to
belabor the point. The ensuing testimony served
only to emphasize Rivera's total unreliability.
Respondent's attorney then stated that his client
had a paid check which was extremely relevant to
the testimony which had been given. Over the most
emphatic objection by counsel supporting the com-
plaint and the Charging Party's attorney to his
request that the witness be directed to return on the
following morning at which time he might be con-
fronted with the check, I directed, in the exercise of
my discretion,- in the interest of justice and, for the
purpose of arriving at the true facts, that the wit-
ness return . [Incidentally, although it had been inti-
mated or represented that this witness was a hostile
or unwilling witness, he did not appear to be either
hostile or unwilling but, on the contrary, he ex-
hibited his bias against the Respondent by charging,
when reference was made to the check, that it
could have been fabricated. As it turned out, this
was utterly baseless.] On the following morning he
reiterated that the check which he had said he
received on November 18 was not for a full week's
pay and that the one he received on Monday was
for a full week's pay. He was then confronted with
a check dated November 14, and admitted that the
endorsement on its reverse was his signature. Hav-
ing seen the check, he denied that it was the one he
received on the 18th, did not remember when he
received it, and did not remember whether it was
the last check he received. He insisted, however,
that this ' particular November 14 check in the
amount of $36.54 was not the check which, accord-
ing to his prior testimony, he had picked up on
November 18. When shown his union card, which
bore the! date November 1-8, and asked whether his
recollection was refreshed as to when he picked up
the check in, evidence, he said, " I still say I didn't
pick this check up on a Friday," and that it was
November ' 18 when he wrote that date on the union
card. (Though he testified that he himself wrote
the date', "Nov. 18/66" on the union card, it does
not require the' skill of a handwriting expert to see
that the "'Nov. 19/66'% on every card in evidence
appears to have been written by the same person.
See Heck's, Inc., 166 NLRB 186, fn. 1.)
The actual $36.54 check dated November 14,
1966, is important for many reasons. It demon-
strates that Rivera was untruthful in his testimony
about the date when he signed the union card, the
date when he received his last check , and the dates
or times when he actually worked, when he did not
work, and when he quit. It demonstrates also the
falsity of Acevedo's testimony to which greater
reference will be made below. Finally, it demon-
strates quite satisfactorily that the payroll records,
which the General Counsel repeatedly had charged
were fabrications, were indeed not and actually
were truthful and reliable. The check is dated
November 14, 1966. November 14 was a Monday,
a regular payday. Its reverse bears the admitted en-
dorsement by Victor Rivera. The reverse shows
also that it was cashed at a check-cashing service
on November 14. Consequently, it could not have
been fabricated, as had been charged by Rivera
while he was on the witness stand. The payroll
record for the week ending November 18, shows
that he did not work at all during that week. The
payroll record for the week ending November 11
shows that he did work a partial week in that week
and that his gross pay had been $38.35. The payroll
record shows also that he had worked regularly for
many weeks preceding his last week, ending
November 11. In fact, he appears to have worked
in every week beginning with the week ending Sep-
tember 9, and terminating in that ending November
11. Thus, it is conclusively established, at least to
my satisfaction, that whatever might have been the
reason for Rivera working only on Monday and
Tuesday of his last week of employment, that Mon-
day and that Tuesday were in the week ending
November 11 and not in the week ending
November 18. That Monday and Tuesday were
November 7 and 8. The check is authentic; the
payroll records are authentic; they match, conform,
and dovetail in every respect.
For all the reasons set forth above, I discredit
every bit of testimony given by Rivera in support of
the charges and adverse to the Respondent.
Next we have the witness, Sara Maldonado. She
is sometimes referred to as Sarita but the in-
terpreter assures us that Sarita and Sara are dif-
ferent names and that they should be regarded,
when used, as being used differently. This has no
bearing on the identity of the person but it does
have a bearing on the truth of certain testimony
given by Acevedo (below) to the effect that a boss
had asked him to pass on to her some antiunion re-
marks.
Maldonado is claimed to be an 8(a)(3) dis-
criminatee. According to the complaint (and this
was never amended either directly or by a general
motion to conform the pleadings to the proof) she
was discharged or laid off on or about December
21, 1966. This date should be fixed clearly in the
CHARM HANDBAGS, INC. 121
mind of the reader because this is before Christ-
mastime and before the end of 1966.
She identified her signature on the union card
which had been received in evidence on the
testimony of Union Organizer Garcia. She testified
that she had worked steadily and never had been
laid off prior to the time she signed the card. How-
ever, according to her, two or three days after she
signed the card and, without any evidence anywhere
in the record that Pfeffer knew she had signed a card,
she was instructed by Pfeffer through a Spanish-
speaking employee to stay at home for a week and
then call him on the telephone. She testified that
she had her cousin telephone but the answer always
was that there was no work. This happened three
times. There came a time when she ascertained that
someone else was to be hired to work at her
machine and this prompted her to ask her relative
by marriage, Acevedo, to arrange to get her back.
This resulted in her return to work. All this, she
testified, happened within the timespan of one
week. Then there was testimony of a general 2-
week layoff, efforts to be rehired, and a failure to
rehire.
The payroll record shows that, in the week end-
ing November 25, she worked at least 2 or possibly
3 days. During that week 10 employees were work-
ing. During the following week, a week in which
Maldonado did not work, the week, according to
her, for which she was laid off, only six employees
worked. Thus, not only Maldonado but three other
employees as well did not work in that week. It is
important, however, to note that in that week, the
week in which Maldonado testified she was laid off
following her signing a union card, the most active
union organizer, Acevedo, plus two other alleged
union card signers, Olivera and Cruz, did work.
Then , in the following week, the one ending
December 9, Maldonado appears to have worked
the, full week. While we are on this payroll record I
should add that she worked also the full week end-
ing December 16 and a good part of, if not all of,
the week ending December 23, the week before
Christmas.
Following that week, there seems to have been a
general Christmas layoff, for she testified, "We all
were laid off for two weeks with the exception of
one person." (The record shows that four persons
worked in those 2 weeks.) According to her, the
employees were told, "We will be two weeks
without work and after the two weeks we should
call." She next testified that she caused many calls
to be made for her and even visited the shop but al-
ways was told that there was no work for her and
for that reason never went there again and never
had anybody make any more telephone calls for
her. She has a telephone in her home but testified
that no call ever was received for her to return to
work.
Her direct examination was concluded with an
effort on the part of counsel supporting the com-
plaint to bring out supporting evidence of an al-
leged conversation between Acevedo and Boss
Pfeffer about the Union. This was done through
leading or declaratory methods of interrogating.
She asked, "After you signed the card, this card .. .
after you signed it, did Mr. Acevedo ever tell, you
that Mr. Pfeffer had asked him to talk to the
Spanish speaking employees or to you directly?"
An objection to the form of this question was
sustained. She ignored this ruling and persisted,
"After you signed that card ... did Mr. Acevedo
tell you that Mr. Pfeffer had asked him to speak to
you-" Respondent's counsel again objected by in-
terrupting (properly no doubt) but I stated that if it
was the end of the question I would rule but, if it
wasn'c, I would wait. Counsel supporting the com-
plaint said it was not, and I then stated to her,
"Please bear in mind that repeated questions along
lines which have been the subject of sustained ob-
jections may detract or derogate from the value of
the answer you will ultimately get. I would suggest
you reframe the question." She replied, "In light of
his Honor's comment, I will. I respectively wish it to
be noted I don't necessarily agree." Her next
question was, "Mrs. Maldonado, did a time come
when Mr. Acevedo talked to you about a conversa-
tion he had had with Mr. Pfeffer about the union?
And what I am doing is talking about a time after
you signed General Counsel's Exhibit 7 [the union
card]." The witness answered, "He told me
something about that he had a conversation with
the boss ,but I don't remember now what it was."
(Emphasis supplied.) Still ignoring my prior
adomonition related to the use of leading questions,
counsel supporting the complaint then put the fol-
lowing question to the witness, "Would it refresh
your recollection if I asked you if it had something
to do with the boss' wanting or not wanting the
union in the shop?" Finally, the following was
dragged out of this witness, "I cannot specify
whether that's the conversation you referred to but
he told me he had a conversation with the boss
when the boss told him he didn't want the union
but that he would give us some benefits and re-
peated that he did not want the union there." This
sort of testimony is of a sort to which 1 normally
would pay no attention whatever because it is prac-
tically the testimony of the interrogator through the
mouth of the .witness. However, there is much more
to be said which is indicative of the degree of credi-
bility which should be accorded to Maldonado's
testimony.
The cross-examination commenced with an
inquiry of the witness whether she had worked for
the Respondent during January 1967 The inquiry
was clarified by a reference to whether she had
worked there after the Christmas holidays. She an-
swered, "I don't know. I don't believe so." How-
ever, when she was asked whether she had started a
new job for a different company in January 1967,
she had a sudden relapse and said that she believed
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she did work 3 days after the holidays. It should be
recalled that during her direct examination, it was
fixed definitely that the time of her last employ-
ment was before the Christmas holidays and that,
although she had applied for work after the
holidays, she did not get any. Her "belief" was
made more certain by the cross-examiner when he
directed her attention to the affidavit she had given
to a Board agent. Now her testimony seems to sug-
gest that she worked 3 days, Monday, Tuesday, and
Wednesday, of a week after the holidays and, at the
conclusion of that work, was told that there was no
work, and that she returned the following Monday
to pick up her check and again was told there was
no work for her. She denied expressly that her
reason for not working any longer at the Respond-
ent's factory was that she had to stay home to
watch her children, or that she no longer desired to
work or that she had another job.
It developed next, according to her affidavit
given to a Board agent, that she must have started
working for another company, Magnolia, in the
week beginning January 16. Although more will be
said about the check below, her last check from
Respondent is dated January 16, 1967, and the
payroll book shows that this was for work during
the week ending January 13. This does not prove
either that she abandoned her job at Respondent's
factory, that she was looking for other work while
still working for Respondent, or that she already
had made arrangements to go to work for Mag-
nolia, but it does suggest rather strongly that any of
these might have been the case. It is not necessary,
however, to decide the issue on such a tenuous
base. The fact that the witness actually had worked
at least 3, and possibly 4 days in the week following
the conclusion of the Christmas-New Year slow-
down was pretty well established.
Whether or not this would have been of any real
importance on the merits is questionable. Counsel
supporting the complaint seems to have assumed
that it was. This will appear from the redirect ex-
amination to which I shall now refer. The concern
is related to the fact that in the complaint, as I
made very pointed reference above, it is alleged
that Maldonado was discriminatorily laid off and as
a consequence, discharged on or about December
21, 1966. During the course of redirect, statements
made by the witness in her affidavit for the Board
agent were read into the record:
Paragraph 3: The last day I worked for
Charm Handbags was a Wednesday, around
the middle of December, 1966, but I'm not
sure about the date.
[Paragraph 7.] I am not sure and I do not re-
call ,when I worked last, but I believe the last
day'1 work was Wednesday, before Christmas,
when they laid off everybody, except one per-
son. We were told they were going to close for
two weeks and that we should all call two
weeks later. The only one who was not laid off
was Mr. Pfeffer's relative, the one who speaks
Spanish.
[Paragraph 9:1 1 returned to the shop about
two and a half weeks ago, [this would place it
as either the second or third week of January
19671 just before starting my new job, and I saw
the four people plus Jeanin Cruz. I spoke with
Mr. Pfeffer and he told me there was no work.
[Emphasis supplied. ]
Following these quotations from the affidavit, all
of which had been read to or by the witness, coun-
sel supporting the complaint then proceeded to at-
tempt to firm up the allegation set forth in the'com-
plaint that the date of discharge had, been
December 21 and she asked the witness whether
she went to visit Respondent in January just before
she started her new job. The witness answered,
"Yes." Then, in response to the next question
whether she had worked on the day she visited, the
witness answered , "No" and, in response to further
questions , said that she did not know whether she
went to pick up her pay from Respondent on that
visit, and that she had worked at least I day after
Acevedo, her relative by marriage, had been laid
off. (The payroll record shows that during the week
in January when Maldonado worked, Acevedo did
not work but, during the week before Christmas,
that ending December 23, both Acevedo and Mal-
donado did work.) In any event, through the medi-
um of redirect examination , the witness was
brought back to the point where she testified quite
firmly, in contradiction of her prior admissions that
she worked in January, that she did not work in
January and that her last employment was in
December, before the Christmas holidays. This, of
course, is consistent with the affidavit which she
gave to the Board agent but that affidavit, as will
appear, was just about as false as the testimony
which she gave at the hearing.
The recross-examination started with a little
refresher of the immediately prior testimony given
on redirect to the effect that her last period of work
at Respondent's factory was a week in which
Acevedo worked. Having testified on redirect that
her last employment was in the week before Christ-
mas and that she had not worked for the Respond-
ent in January 1967, she became quite emphatic
in her testimony on recross that she did not work in
January and that she picked up no salary check for
working in January. She affirmatively said that
when she left on December 21, she was paid on
that day and at no time following that day did she
ever go back to the factory to pick up another sa-
lary check.
I was very much disturbed by the state of the
record which left a cloud over all the testimony
and, after reviewing the situation, I addressed
Respondent's attorney saying, "Now, you have inti-
mated that you have a check. Can you produce that
check now?" He readily acceded to this request.
CHARM HANDBAGS, INC. 123
The witness was later confronted with a check
dated January 16, 1967, for. $42.16, made payable
to her, with its reverse endorsed with her signature
and showing that it was cashed January 19. So con-
fronted, the witness clearly was embarrassed and,
as I noted elsewhere in the record, she almost burst
into tears. The following transpired:
0. Mrs. Maldonado, the last day you
worked for Charm Handbag in December, I
believe you testified was December 21, is that
correct?
A. I believe. I don't know.
Q. I now show you Respondent's 9-A and B
in evidence [this was the December 21, 1966,
check] and ask you if this is the check you
testified that you received on that day?
A. Yes. [Thus the witness is still insisting
that her last employment was on December 21,
1966.1
Q. I now show you Respondent's 5-A and B
[this was the January 16, 1967, check] and ask
you if this helps to refresh your recollection as
to whether or not you worked sometime in the
week ending January 16, 1967?
A. I don't know. [And this is where I ob-
served that she almost broke into tears. ]
That ended her testimony as a witness in the case.
However, a little prior to the conclusion of her
testimony, there came into evidence not only the
check for December 21, 1966, for her last employ-
ment prior to Christmas and the check for January
16, 1967, for her employment following Christmas,
several additional checks-November 28, 1966, for
$31.08, to Sara Maldonado; December 12, 1966,
for $52.20 to Sara Maldonado; and December 19,
1966, for $49.74 to Sara Maldonado. A cross-
check of ,these checks with the payroll records
shows that the week ending November 25 for
which Maldonado received the $31.08 check, her
gross earnings prior to deductions were $32.62; in
the week ending December 9, 1966, for which she
was paid $52.20 on December 12, her gross
earnings were that amount; in the week ending
December 16 for which she received the $49.74
check 'on December 19, her gross earnings are
shown as $5,2.20. For the week ending December
23, the record, as-mechanically reproduced in the
exhibit,folder, is blurred but it looks as though it
may b,e something like $33.36 gross, which is con-
sistent with the net $31.77, December 21 check.
The January 16, 1967, check in the amount of
$42.16 ,discussed at length above, is consistent with
the, payroll r cord showing 29-1/2 hours of work in
the week ending January 13, with gross earnings of
$44.25.
In summary, this witness, Sara or Sarita Mal-
donadp,, was called for the purpose of establishing
violations of'Section 8(a)(1) and (3), a combina-
tion of the alleged conversation related to her by
Acevedo and also her alleged layoff following her
signing ',of the, union card (of which the Employer is
not shown to have had any knowledge at all), and
that her final discharge was on or about December
21, 1966. The documentary evidence conclusively
established that she was not discharged on
December 21, that as testified elsewhere by Pfeffer
she merely was laid off together with others prior to
the Christmas slowdown, and that she returned to
work, as the Respondent had promised, after the
holidays, that she did work for a minimum of 3 days
in January following the holidays, and finally that
the probabilities are, as may be inferred from the
affidavit given to the Board agent, that she was
looking for other work already or had obtained a
job with Magnolia at the time that she stopped
working for the Respondent in January.
Here we have another witness whose testimony is
wholly unreliable and incredible and to which no
credence whatsoever can be given in support of the
allegations set forth in the complaint. I reject it in
toto.
Luis Acevedo is a person whose name I have
mentioned from time to time quite frequently in
foregoing portions of this Decision. I come now to
his testimony at the hearing. It is obvious that he is
regarded as a key witness in support of the com-
plaint . He was called for several purposes-(a) to
establish (in addition to his own- and Maldonado's)
the signing of union cards by Ivy Matthews (Boyd),
Samuel Vasquez, Daisy Munoz (Olivera), Juana M.
Cruz, and, most fatally to the General Counsel's
case , that by Victor M. Rivera, whose testimony I
have discussed in detail in the portion of this deci-
sion immediately preceding the Maldonado, discus-
sion ; (b) that the persons who signed the cards,
many of whom certainly did not understand the Eng-
lish language, had been informed by him as to the
purpose for which they were signing and that they
agreed to sign the cards for that purpose; (c) proof
of alleged 8(a)(1) violations to the effect that he
had been promised benefits if he did not join the
Union; (d) proof of alleged additional 8(a)(1) con-
duct to the effect that an effort had been made to
enlist him to get at least Maldonado' and possibly
others not to join the Union; (e) proof of alleged
additional 8(a)(1) conduct involving interrogation
and surveillance constituting coercive interference
with organizing activities; (f) proof of his own al-
leged 8(a)(3) and (1) discharge; ( g) to establish
that Leah Seidenfeld was not an employee but a su-
pervisor; and (h) as to the continued failure to
reemploy him because of his union activities.
Jencks v. United States, 353 U.S. 657, from which
I have quoted elsewhere in this decision , again is
important here. Moreover, the discrepancies or in-
consistencies in Acevedo's testimony with that
given by others and the documentary evidence are
additional catalysts. Finally, there are the similari-
ties between certain of his testimony and that given
by other witnesses but demonstrated to have been
false.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Acevedo was one of the earliest employees who
went to work either for the Respondent or its
predecessors , The transcript shows that he testified
that he was hired for a permanent job but we are
informed by the interpreter that the utilization of
the word " permanent" has no technical sig-
nificance and that . when he had translated, using
that word , he had used it interchangeably with
"steady. " Acevedo testified that he saw Garcia in the
factory November 16, that on that same day he and
Sarita Maldonado received union cards and that, in
the presence of Garcia, they signed those cards and
delivered them to Garcia . The receipt , the signing,
and the return, of the signed cards to Garcia all
were accomplished at the same time. Also, at this
time, he said that he received additional cards for
distribution among the employees and, as a result
of this distribution , he obtained signed cards from
Ivy Matthews (Boyd), Samuel Vasquez, Daisy
Munoz ( Olivera ), Juana M . Cruz, and Victor M.
Rivera, all of which cards had been signed in front
of him by the persons whose names appeared
thereon after he had explained to them their ur-
pose. The cards , according to Acevedo , apart from
those signed by him and Maldonado in front of the
factory, all were signed in the factory (later the
hall) by the others . He then testified that he
delivered the cards obtained from the employees
other than himself ' and Maldonado to organizer
Garcia on November 18 at his, Acevedo's, home,
where Garcia had come. The witness ' testimony
was interrupted by some voir dire. He said that he
did not put any writing on any of the cards but
some of them , when returned to him , had the
signers' addresses written into them . Although only
two pages before ' in the transcript , he had stated
that he ' did not "fill out any information on" the
cards, he later testified that he put the address on
the Cruz card but wrote nothing else on any of the
cards. He also testified that none of the cards, at
the time he received them , were completed in the
form in which they appeared when received in
evidence . He did ,' however , know that Organizer
Garcia , in his presence , put the dates and
" Brooklyn Handbag" on them.
Now, as elsewhere, he testified very emphatically
that Rivera had signed the card in his presence "at
noontime on the 18th." He did not give the card to
Rivera on the 16th , even though he had received
cards from Garcia on that day. He added that, ex-
cept for his own, the Maldonado ,. and the Cruz
cards, all the ' others were signed on the 18th (the
Cruz card having been signed on the 17th and his
and Maldonado 's ; on the 16th). Despite his
testimony that the Cruz card had been signed on
the 17th , it bears the date, November 18. He did
not know who wrote the printing, "Vany
Mathews," on the top line of the Ivy Matthews
card . Near completion of the voir dire the positive
statement was made that the cards signed by
Vasquez , Munoz, and Matthews, all were signed on
the same day that Rivera signed his card and this, it
will be recalled, was claimed to be November 18,
already shown in this decision as having been false.
Acevedo then was brought to testimony intended
to support the allegations of 8(a)(1) violations. He
testified that, about a week after he had signed his
card, Boss Pfeffer spoke to him, without anyone
else being present, and said, "[I]f I didn't sign for
the union, he will give me all kinds of benefits and
that he did not want a union," to which he replied,
"No." The benefits allegedly promised were not
identified by Pfeffer. This testimony had been given
by the witness with the aid of the interpreter,
Respondent's attorney pointed out that if such a
conversation had been held it must have been in
English and he requested that the witness be
required to relate in English what had been said.
The request was granted. The witness' testimony, in
English, of his conversation with Pfeffer was, "I
don't want union here. The union no good for you
and nobody here. You help me-I no want the
union here-I stop the union no come I give you
anything benefit. And more money later. You tell
Sarita Maldonado I told you.- I no remember more.
I say I no can do." Thus, the English version is not
only different but it is more elaborate. According to
the time sequence expressed by the witness this
would have occurred, if it did occur, during the
week November 21-25, inclusive. (It should be
noted that Pfeffer is quoted as having used the
name "Sarita" even though it was brought out that
he always referred to her as Sara.)
Then, in the following week, as testified by
Acevedo, the other boss, Seidenfeld, engaged him
in conversation at the cutting table shortly before
12 o'clock, midday. This, he said, happened just
after he had overheard his name being mentioned
in a conversation between Seidenfeld and Ivy
Matthews (Boyd). Acevedo testified, "[Seidenfeld
said to him] Why you no give the card to Mister
[another employee later identified as Kupfer] I say,
I repeat, I finished. He continue to talk much more
but I no understand." Although the witness testified
that that was the entire conversation as far as he re-
called, counsel supporting the complaint then
posed the following leading question, "Does it
refresh your recollection if I were to ask you if Mr.
Seidenfeld mentioned what would or would not
have happened if you had given the man a card?"
Objection to this question was sustained as to form.
But she persisted and said, "Mr. Acevedo, did
anything happen that would refresh your recollec-
tion as to anything else that might have been said
on this occasion by Mr. Seidenfeld?" The witness'
response to this was that about half an hour later
Seidenfeld threw his "check on the floor to me and
he told me 2 or 3 things which I don't remember."
She was not satisfied with this answer and put the
following question, "Was there any other mention
made by Mr. Seidenfeld during this conversation of
this fellow he pointed to when he asked you why
CHARM HANDBAGS, INC.
you didn't give that fellow a card?" To this, the wit-
ness answered, first in Spanish , that when he, the
witness, had repeated "twice the same thing, he
said that I was going out." But, when asked to re-
peat in English substantially what had happened, he
said, in English, "He say why you no give the union
card for Mister-I don't remember the name. I told
him I finished. Why you no give the union card for
the man. I repeat, I'm finished. He say, you no give
the card him because you know he told me you give
the card everybody here. I no talk no more. I say
you go out." Thus, four different versions were
given during this brief interval of direct examina-
tion. According to the time sequence given by the
witness, if the check was given to him at the time of
this alleged conversation, it must have happened on
November 28, a Monday, after the week ending
November 25. The payroll records show, however,
that Acevedo did not "go out" or get fired on that
day. He worked all that week, and all the following
weeks ending December 9, 16, and all or substan-
tially all that ending December 23.
Now we come to the alleged discharge which the
witness says occurred on December 20. His
testimony is that, although he never had been "laid
off" before, Boss Pfeffer told him, "It's slow now. I
no have more work. After holiday you call me.
That's all." Seidenfeld's daughter gave him his
check on that day (Tuesday), not a regular payday.
(Here again there was an effort to demonstrate that
Seidenfeld's daughter was a supervisor. The witness
was asked whether she gave money to any other
employees and he said, "I don't know," and later,
by a process of elimination in six questions, he was
persuaded to answer, "The daughter of the other
boss," in response to the questions, first "Was there
ever a time when the other boss was not there al-
so?" and second, "Then who made sure when the
other boss was not there also?" This testimony,
without regard to credibility, was entirely without
probative value.) He testified also to something
very significant-at the same time that he received
his check, he 'received a bottle of whiskey. If there
was antipathy between the bosses and Acevedo
because of his alleged union activity, what sort of
fools could they have been to give him what was
obviously aChristmas present at the same time they
were "firing" him because of his union activities?
Telling an employee he was laid off, requesting him
to call again after the holidays to see if there would
be more work for him, and giving him a Christmas
present at the same time, all are more consistent
with a genuine and true layoff and not a discharge
for alleged union activities. (Elsewhere, it was
testified by Pfeffer that there had been a conversa-
tion between him- and Acevedo following the
Christmas holidays in which he had asked Acevedo
to return to work but Acevedo, after inquiring
whether he would have permanent or steady work
on his return, of which Pfeffer could give him no
assurance, refused to return at the time requested
125
but did report at a later time, after other arrange-
ments had been made, and was told that, because
of his refusal to return when asked, other arrange-
ments had been made. While Pfeffer's credibility is
assailed, it seems quite , clear to me that he was
telling the truth when he said this. This is not only
because Acevedo was given a Christmas present
when being laid off for the Christmas and New
Year's slowdown but also because, during the week
ending January 13, other laid-off employees, Cruz
and Maldonado (both alleged card signers), went
back to work and a new employee was hired in the
week ending January 20.)
The witness' testimony as to his communications
with the Respondent following the Christmas
holidays is not credited by me as being exact or
precise or true statements as to what really trans-
pired. Its general trend suggests that Pfeffer's ver-
sion of the facts is the more likely. Although he first
testified that he telephoned "After the holidays"
(plural), the answer, not being satisfactory to coun-
sel supporting the complaint, she asked this leading
and instructive question, "When you say the
holidays, do you mean Christmas or New Years?"
To this he answered, "The night of Christmas- Eve."
(Truly an unlikely time, if not for the Orthodox
Jewish bosses, certainly for him.) He said he was
told by Seidenfeld's daughter, "[I]t's slow now. So
wait for Mr. Pfeffer. Call next time." He said the
Company never contacted him to come back to
work but that he went there personally on January
10. (This was a Tuesday in the week following the
week which had begun with New Year's Day.) Be-
fore he was able to tell what had happened on
January 10, he was prodded by two leading
questions to testify that there had been a telephone
conversation with Boss Seidenfeld whom he did not
understand. He then testified to the conversation
on January 10 with Pfeffer. As related by him in
English , it was, "I told him you have job for me
now. He say, you see, nothing. I say, when come
back. He said, I don't know. I said I need the work.
He said, I no can do nothing. I say Good-bye.
That's all."
Brought back to the January 10 alleged visit, he
was asked how many people were working at the
shop at that time and answered, "About 5 or 6."
He was then asked in leading' questions, "Was the
mute lady [Schuster] there?" and "Was the Jewish
man [Kupfer] who speaks Spanish there?" and he
answered "Yes" to both. He was not asked and he
did not testify that in addition to these, Cruz and his
relative by marriage, Maldonado, both alleged card
signers, who had been laid off at the same time that
he was laid off before the holidays, were working
there at the time, as is conclusively established by
the payroll record. There was additional testimony
that he, Acevedo, had been transferred from his
cutting job to a fastening machine about a week be-
fore his layoff and that Kupfer, who had, been an
operator, had been assigned to cutting. If this in
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact did happen it would suggest nothing but a
managerial marshalling of abilities during a time
when available work was decreasing just prior to a
layoff for that reason.
After all this interrogation about matters in addi-
tion to and other than the alleged conversation
wherein it was claimed that Acevedo had been told
to tell Maldonado Boss Pfeffer's objections to the
Union, he was brought back to that conversation.
Because of the interjection of the numerous other
matters and the long lapse between the time that he
had testified about this alleged conversation, I
failed to recall at the time its full contents and
sustained an objection to a question concerning
what transpired afterwards. Later, having recalled
the conversation overnight, I rescinded that ruling
and permitted counsel supporting the complaint to
reopen the matter. She asked, "Mr. Acevedo, I
direct your attention to the conversation you had
with one of your bosses where he told you he would
give you benefits, he does not want the union and
you should tell Sara Maldonado that he told you
these things." This was followed by the question,
"Did you tell Sara Maldonado or any of the other
employees what your boss had told you?" The ob-
jection as to form, bringing in "other employees"
when the witness had testified only that he had
been requested to tell it to Sarita Maldonado was
sustained. Finally, after some discussion, the follow-
ing question was put, "Mr. Acevedo, after you had
this conversation with your boss that we have just
mentioned, did you tell Sara Maldonado any of the
things that the boss told you? If you recall." He
then testified, "I told her that the old man said and
asked we should help him to avoid the union to
come in there and he offered to give us benefits and
I told her I don't accept this because if we do that,
later on we will be fired anyhow." (Maldonado was
present in the hearing room when Acevedo first
testified that he had been asked to talk to her. Yet,
it should be recalled, when she was interrogated
about this in a series of leading questions, she gave
a most inconclusive answer.)
It seems to me that this incident was manufac-
tured out of the whole cloth and that Maldonado
was asked to testify to it only for the purpose of
backing up Acevedo.
Before leaving this particular incident and prior
to discussing other inconsistencies brought out on
the cross-examination, I note here that there is not
a word in the affidavit given by Acevedo to the
Board agent about any request that he convey these
8(a)(1) remarks to Maldonado despite the fact that
he does refer to an alleged antiunion conversation
in the affidavit. Again, see Jencks v. United States,
353 U.S. 657, 667, above quoted.
We now come to Acevedo's cross-examination.
Although he had sought to convey the impression
on direct that his regular job was a specialized job
involving "cutting," it was brought out that prior to
his employment by Respondent he had been a
cutter for shoes, not handbags, and that his work in
Respondent's plant had not been confined to
cutting but that he was required as well to "[g]et
the plastic material downstairs and load the trucks,
bring the plastic upstairs and cut it." Next it was
brought out that, although he had testified he had
never been laid off before, there had been frequent
layoffs because of the Jewish holidays. It was then
brought out that during the month of December,
prior to his last day in that month, there were nu-
merous times when he did not work.
Organizer Garcia's visits to the factory next
became the subject of inquiry. After numerous con-
fusing answers as to the number of times he saw
Garcia in the factory (sometimes as many as five
times), he testified that the first time was when
Feldman and Garcia came to the plant together, the
next time when he saw Garcia downstairs and
signed his card, the next time was a week after he
had signed the card when he saw Garcia in the
plant alone, then thereafter he saw him continually
or frequently in the factory, "I saw him twice one
week, twice another week and then I don't re-
member." It was emphasized that all these visits by
Garcia were inside the factory with the bosses,
because "He went to see them." Here again it ap-
pears from his affidavit to the Board agent that this
testimony is not credible. In the affidavit he had
said, "I do not recall seeing Miguel Garcia come to
the factory to talk with any of the bosses after I
gave him the signed cards, until the day I was
discharged. However, Miguel told me he went to
talk with the bosses after I was discharged. He did
not tell me what was said between them."
Now came the alleged conversations with the
bosses. At first the witness, when asked to repeat in
English what Boss Pfeffer said to' him and what he
said to Boss Pfeffer, answered, "I don't remember."
Then, at the request of Respondent's attorney, he
was instructed that the Respondent's attorney was
not interested in recalling what he had testified on
the prior day but was interested in his recalling
what Pfeffer said to him and he said to Pfeffer 2
weeks before he was fired. He answered again, "I
don't remember anything today of what he told
me." Respondent's attorney then asked him, "Are
you sure you don't remember anything?" To this he
answered, "What I said yesterday I remembered
and I said all I talked to him already." By this time
it seemed to me that the witness, was being entirely
too evasive and I instructed the interpreter, if he
could translate it into English, to inform him that
he was "not to fence with us ... but to tell us what
Mr. Pfeffer told him and let's not worry about what
he testified yesterday." He answered, in English, "I
remember he told me I no want union. You signed
a card, everybody signed a card. I don't give you
more work because I don't want union here. You
want sign a card, it's up to you. That's all I re-
member." When asked if he was told to tell this to
Sara, he said, "Yes," and then testified, using the
CHARM HANDBAGS, INC. 127
English language, as to what he told her. An objec-
tion to the use of English was sustained and the
answer was stricken. The cross-examiner then
digressed to whether Pfeffer had used the name
"Sara" or "Sarita" and Acevedo, in a series of an-
swers to several questions said, "Sarita Mal-
donado," then "Sara or Sarita," then, after the in-
terpreter had told us that Sara and Sarita were "two
different things," he said, "I don't remember.
Maybe he said tell her. I don't know," He then
proceeded to evade answering whether he ever had
heard Pfeffer refer to Maldonado by any name
other than "Sara," even though she had been work-
ing there with him for approximately 3 months and
he had helped get her the job. Finally, however, he
did admit that he had heard Pfeffer call her "Sara"
but could not remember whether he ever had called
her "Sarita."
Next, he was interrogated about his alleged con-
versation with Seidenfeld in which he had testified
he had been asked why he didn't give a card to
another employee, Kupfer. This time he testified in
English, not through the interpreter, "He told me
why I no give the card to the man that cuts on the
machine. I told him I finished. He repeat, why I no
give the card to the man who cut on the machine. I
repeat, I finished. He say, you no give the card
because he tell me and you cannot bring union. I
remember he told, you give the card to everybody,
you go out. I don't remember more. He talked
more but I didn't understand." The witness con-
tinued, in answer to another question, saying, also
in English, that Seidenfeld had said, "I know who
you give, the cards, but I no want you no more here.
I no need you no more here."
His next testimony was that a week later
Seidenfeld and Pfeffer had a conversation and fired
him. He, changed his testimony almost in the same
breath and said, "During the same week. At the end
of the week." However, when reminded that he
claimed he had been terminated on December 20, a
Tuesday, he again changed and said, "It was
probably Tuesday," but then he fixed the time of
the alleged conversation with Seidenfeld as having
been on, the Wednesday of the prior week. On
direct he had testified that this conversation with
Seidenfeld was in the week following the conversa-
tion with Pfeffer. This would have put it in the
week beginning November 28 and ending
December 2, This results in a 1- to 2-week variance
in time. Moreover, if as he had testified, Seidenfeld
had tossed his check on the floor at that time, since
check day was a Monday, it could not have been
Wednesday, and there is no claim that he was
fired-" ',ou go out" and "I no need you no more
here."-When these remarks were made. If the re-
marks had been made at the same time that his
check had been tossed on the floor, it would have
been only logical for him to have been terminated
at that tithe.
On direct he had testified that the conversation
with Pfeffer in which Pfeffer allegedly made
promises of benefits was about a week after he had
signed the card, which would have put it in the
week of November 21 to 25, inclusive. On cross-ex-
amination he said this conversation had been about
2 weeks before the time he claimed he had been
terminated. This would place it in the week
beginning December 5 and ending December 9.
Thus, there is again at least a 1-week -variance,
possibly as much as a 2-week variance, between the
times stated on direct and on cross.
Although Acevedo's prior testimony was given in
a manner to suggest that Kupfer was the Respond-
ent's informer, Acevedo admitted that he never
spoke to Kupfer about signing a card or about who
had signed cards and he did not remember whether
anybody ever talked to Kupfer about who had
signed cards.
He was brought to the distribution and signing of
the cards. He testified that he gave out some cards
in the morning, some at noon, and some in the af-
ternoon. His testimony on cross as to what he told
the employees when soliciting their signatures was,
"I told them to sign the cards so we can bring in the
union there and get that the boss should reduce our
working hours and should give us an increase in sa-
lary, vacations. And they accepted." He told this
first to a group of two, then to the others one by
one with the exception, however, of the "colored"
woman (Ivy Matthews Boyd) who knew the pur-
pose of the card. His conversation with Maldonado
at the time they were together with Garcia, when
she signed her card, was, "I asked her if she would
sign the card in order that we could bring in the
union and get the advantage of the union and she
said that she agree and that she signed." The Eng-
lish portion of the card over the place where the
employee signs is as follows:
I, the undersigned, hereby apply for mem-
bership in the Pocketbook and Novelty Work-
ers Union, New York, Local 1, affiliated with
International Leather Goods, Plastics and
Novelty Workers Union, AFL-CIO, and
designate and select the Union to be my exclu-
sive representative for the purposes of collec-
tive bargaining in respect to rates of pay,
wages, hours of employment, or other condi-
tions of employment.
What Acevedo says he told the persons from
whom he solicited signatures on the union cards
hardly approximates this quoted material. Yet, if I
could believe that he told them this, and believe
also that he obtained the signatures as he says he
obtained them, and believe also that they were
received on the dates that he said they were
received, I would not reject the cards or hold that
signatures so obtained were obtained either by
deception or because the signers misunderstood the
purpose of the cards.
128 DECISIONS OF NATIONAL
I have referred above to a significant omission
from Acevedo's affidavit to the Board agent. There
are additional comments to be made. On direct ex-
amination he had testified that, on the same day
that he and Maldonado had signed their cards and
delivered them to Garcia, he received other blank
cards from Garcia. This would fix the date of the
meeting with Garcia as November 16, if the date on
his card is to be given any consideration. However,
in the affidavit he gave to the Board agent he said
that the first time he saw Garcia "was about a week
before November 16 [at the time of Garcia's con-
versation with Seidenfeld and Pfeffer] after which
... Mr. Garcia passed near me and drop[p]ed a card
of his on the floor telling me to call him on the
phone." Further, according to the affidavit, and,
"The following time I saw Miguel Garcia ...
shortly before 8:00AM about a block away from
the factory, when he told me he would see me after
5:00PM that day, in order to give me cards of the
union to be signed. I met with Miguel Garcia at the
same place as before, shortly after 5:00PM, after
quitting time. I was with Santa Maldonado, another
employee of the factory. Miguel gave me eight
cards. Santa and I signed the cards right there at
that moment." In his prior testimony, he had said
that he met Garcia "in front of the factory" and that
before Maldonado signed her card ("not at that
moment") he had asked her first "if she would sign
the card [etc., as quoted above] that she agreed
and that she signed."
In the affidavit he said that he took the six other
cards received by him from Garcia "shortly after
5:00 PM" and "distributed them at the factory dur-
ing Thursday and Friday, that week, during lunch."
At the hearing he testified that he distributed
"some cards in the morning, some cards at noon,
some cards in the afternoon." When asked whether
he was sure he didn't give them all out at lunch, he
said, "No, it was not so."
Although, at the hearing, he had testified that
when he was laid off on December 20 he was given
a gift of a bottle of whiskey, he failed to disclose
this in his affidavit to the Board agent.
In his affidavit he said that, beginning with the
week after he was laid off (not "the night of Christ-
mas Eve" as he had testified) he called the factory
approximately five or six times and finally went
there on January 10. When he got there he spoke
to Pfeffer (at the factory) and asked him when he
could come back but Pfeffer told him he did not
know and had no work. He set forth that he did see
"five people" working there.
It is to be recalled that on direct he was not asked
and did not disclose that card signers Cruz and
Maldonado were working there at the time. How-
ever, while he did say in the affidavit that Cruz was
working there, he failed to include his relative by
marriage, Maldonado, who also was working at the
time.
LABOR RELATIONS BOARD
In the affidavit, he said, "From the day I signed
the union card to the day I was fired, I did not hear
any of the bosses talking with any of the employees
about the union." He made no such statement dur-
ing the hearing. Why was this evidence, favorable
to the Respondent, not brought out by counsel sup-
porting the complaint? See Giles v. Maryland, 386
U.S. 66.
Finally, in the affidavit, contrary to his testimony
at the hearing and, as noted before, he stated, "I do
not recall seeing Miguel Garcia come to the factory
to talk with any of the bosses after I gave him the
signed cards, until the day I was discharged."
After the Respondent's attorney took the witness
over on direct, Acevedo definitely sought to create
the impression that after the December 20 layoff
Respondent never had solicited his return to work
but, following Respondent's attorney's persistent
questioning, he grudgingly admitted the contrary
when he testified, "He told me to come back but
when I came back he didn't take me." This was told
to him after the Christmas holidays (meaning
Christmas and New Year's) and "about a week be-
fore" January 10, when he claims he reported for
work. Right after that, however, he said that he told
Boss Pfeffer that he would come back to work and
that this happened, not a week before as he had
testified only a few seconds before, but "about
three days." It was on this occasion of his return on
January 10 that Pfeffer allegedly told him that, "he
was very sorry but he had no work for me." (These
answers are quite significant because they tend to
confirm a conversation Pfeffer alleged he had with
Acevedo during which he said that he had asked
Acevedo to return to work because there was work
for him but that Acevedo refused to do this because
Pfeffer would not guarantee him permanent work.
They tend also to confirm Pfeffer's testimony that
there was a belated return to work following the
telephone conversation but by that time Pfeffer had
made other arrangements and had decided not to
reemploy Acevedo because of his refusal to return
the first time he was requested so to do.)
Just after receiving this answer' Respondent's at-
torney casually reverted to Victor Rivera's mem-
bership card. In response to certain questions,
Acevedo testified quite clearly and definitely that
Rivera had signed it on the 18th, that another em-
ployee, Vasquez, signed on the 18th, that he was
sure it was the 18th, that it was about 12 o'clock on
the 18th, and that Rivera had worked that week.
This ended the cross-examination and, after a
recess taken to receive Maldonado's testimony,
there was recross-examination by the General
Counsel. If Respondent's attorney, by firming up
Acevedo's testimony to the effect that he had ob-
tained Rivera's signature on the card on November
18 hoped that counsel supporting the complaint
would be led on he was most successful. She
proceeded to examine on redirect and Acevedo
testified in response to a question whether Rivera
CHARM HANDBAGS, INC.
had worked during the week ending November 18,
"He may have been absent on Thursday, but the 18
he was there." The die was cast irrevocably by her
followup and leading questions:
Q. Was he definitely at the shop on the 18th
of November?
A. Yes.
Q. Was he definitely at the shop working
during that week that ended with November
18th?
A. Part of the week, yes.
Q. And is it your recollection that he
worked Monday, Tuesday and Wednesday
without Thursday and then was there again on
Friday?
A. I believe so.
Q. On Friday, November 18, the date that
appears on that card, do you recall if Mr.
Rivera was actually working on that day?
A. In the evening [ not, as testified before, at
noon ] we met and he signed the card for me.
0. Where again , would you remind me, did
he sign this card?
A. Inside the factory.
Q. Do you recall if you saw him working
that day, the 18th, inside the factory?
A. No, I can't say because I work in another
corner.
By this time the reader knows that all this could
not have been anything but absolutely false in view
of my analysis of the Rivera testimony. On recross,
the Respondent's attorney took on hot pursuit.
Acevedo testified that he did not see Rivera work-
ing "After the weekend, I don't know if he returned
or not," he reaffirmed that the card was signed on a
Friday, which we will recall was November 18. He
"believed" that he saw Rivera working on Monday
but now, although he had answered otherwise for
the General Counsel, he said he did not remember
about "Tuesday before that Friday" and "perhaps"
Rivera was there on Wednesday before that Friday
and he, did not see him on Thursday, but he did see
him on, Friday. Then, although on redirect, only
minutes before , he had testified for counsel sup-
porting the complaint that Rivera had signed that
"evening, " changed his testimony back to .the
original testimony and testified that Rivera had
signed , "At noontime ." He disclaimed any reason
to remember the events of the November 18 week
other than the fact that the union cards had been
signed then . He explained his ability so to re-
member by saying, "The proof that I have is that
the card is signed and I testify here that he signed
the card on the , 18th at noontime and if it doesn't
appear in the records, it's just too bad. This is my
proof." When the question was reread, at Respond-
ent's attorney's request, for the purpose of locking
it up , the witness answered again generally to the
same effect saying, "The card is my proof."
The recross-examination was concluded after
Acevedo explained , following a question to whether
129
he knew it was the 18th because that was the date
on the card , "Because Garcia came to my home
that afternoon . He put the date there."
After my observation of Acevedo on the witness
stand and reflecting on the above , it becomes im-
possible for me to give any credence at all to him as
a witness in this proceeding . The consequences of
this are that ( 1) the alleged remarks by both Pfeffer
and Seidenfeld which, if made, might have been re-
garded as violations of Section 8(a)(1) of the Act,
cannot be held to have been made ; ( 2) the date or
time on which Acevedo testified Rivera signed his
union card necessarily must have been a date and
time other than that stated on the card ; ( 3) it fol-
lows that the dates set forth on all the other cards
in evidence (with the exception of the Baskin card
to which I shall refer in greater detail below) may
not be accepted as having been the actual dates of
signature or delivery to the Union ; ( 4) inasmuch as
the Spanish-speaking employees who allegedly
signed cards had very little or no knowledge-or un-
derstanding of the English language, there is no
evidence (putting aside the heretofore discredited
testimony given by card signers Rivera, Maldonado,
and Acevedo) that any of the other alleged card
signers, none of whom was called to testify, knew
what they were signing at the time they were sign-
ing and intended what the printed text of the cards
said ; and (5 ) that there was any discriminatory
discharge or layoff of Acevedo.
This completes my review of the testimony given
by the only employee witnesses called in support of
the complaint. I have referred before and shall refer
again to the failure to call other employee witnesses
and alleged card signers-particularily Baskin, the
alleged avid and ardent union advocate, and Ivy
Matthews (Boyd), who, although alleged to have
been wrongfully laid off on December 20 (the time
of the Christmas-New Year's layoffs), was reem-
ployed in the week ending February 17 and con-
tinued to work thereafter the weeks ending Febru-
ary 24, March 3, 10, 17, 24, and 31, April 7, 14, and
21 (following which week she was laid off together
with every other employee, obviously because of
the Jewish Passover holiday which, in 1967, com-
menced on April 25, or the evening of April 24,
and continued until and including May 2). For
some reason, not disclosed by the record, she did
not return when the other employees did in the
week ending May 5. It seems almost unnecessary
for me to proceed further in a review of the
testimony in support of the complaint , the only
remaining testimony being that of Garcia and Feld-
man, the union organizers , and that of Pfeffer who
was called as a Fed. R. Civ. P. 43(b) witness. (1 add
briefly, however , that the witnesses on jurisdiction
were interrogated on direct by Respondent's attor-
ney and some testimony was elicited which would
have tended to support an economic defense of
seasonal layoffs .) Nevertheless , for completeness
more than anything else I shall not conclude here.
350-999 0 - 71 - 10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I take up first the testimony given by Miguel Gar-
cia, the organizer for the Union, the Charging Par-
ty. Garcia has been characterized by the Charging
Party's attorney as a person of "naivete" and by
counsel supporting the complaint, in her effort to
minimize serious discrepancies in his testimony, as
a person with "limited English which causes him
difficulties on describing months and confusing the
term `after' and `before."' I had plenty of opportu--
nity to observe Garcia. He was a charming, smiling
individual, quick and bright. There was nothing
naive about him. He did not attain the important
job of union organizer because of or despite his
naivete. He had a relatively good command and un-
derstanding of the English language and was most
clear and explicit in his use of and distinction
between the terms "after" and "before" as will ap-
pear below. Any shortcomings in his testimony
must be ascribed to reasons other than poor un-
derstanding or knowledge of the English language
or naivete
On direct, he testified that his first visit to
Respondent's premises was in the early part of
November 1966 at which time he spoke to
Seidenfeld, identified himself as an organizer for
the Union, and informed him that he would see
someone talking to "your people outside" and that
he would be doing it in the capacity of a union or-
ganizer to which Seidenfeld is alleged to have
replied, "I don't care." Although this was his first
visit to the shop, and he had introduced himself as a
union organizer having the intention to solicit
Respondent's employees, when brought back to this
visit, he testified to the following alleged additional
conversation with Boss Seidenfeld:
Well, I speak to him about the union and
then he says to me, Garcia, I am very sorry
anyway. I haven't got no money to pay union
salaries over here.
I would like you give me a year or a little
more anyway to exist because I can't afford to
pay union wages now. If I have to pay union
wages, I have to close the door. Can you give
me one year time.
I says to him, there is nothing I can do. I said
the workers asked me for some benefits. How
come I going to give you a contract without no
benefits.
So I leave you alone for one year the people
going to pay union for nothing. He says, there
is nothing I can do. I have to wait. [Emphasis
supplied for two reasons-he had not con-
tacted the workers before, and the similarities
of these words at the first meeting, prior to
discussion of any contract, with words al-
legedly uttered at later meetings.]
The next visit, according to Garcia's testimony
on direct, was November 16, when he accompanied
another union organizer, Feldman. Feldman and
Seidenfeld had a conversation in Yiddish, which he
(Garcia) does not understand. Garcia said, how-
ever, that he recognized a number of the em-
ployees, including one Acevedo, as belonging to the
Union. Acevedo evinced an interest in what Garcia
and Feldman were doing in the shop and for that
reason Garcia dropped one of his business cards on
the floor beside him and suggested that he "call"
him later. He then walked out of the shop.
Although he next testified that he then saw
Acevedo, "The same night," Acevedo's affidavit to
the Board agent (as noted before) without mention-
ing any date, says, "The following time I saw
Miguel Garcia was shortly before 8.00 AM about a
block away from the factory. ." Continuing his
testimony about the events of that "same night,"
November 16, Garcia said that he received
Acevedo's and Maldonado's union cards signed at
the same time after explaining the benefits the em-
ployees get from joining a union and stating that if
the employees signed the cards the Union could go
to the owner, talk to him, obtain a contract "if the
owner wants to sign a contract." (This testimony
was elicited after a most remarkable series of lead-
ing questions, objections to which had been
sustained repeatedly and as repeatedly ignored.)
Although all this is supposed to have happened
the "night" of November 16, Acevedo's affidavit to
the Board agent (as we have seen) is to the effect
that he and Maldonado signed and delivered their
cards to Garcia on some unnamed day after
November 16, "shortly after 5:00 PM, after quitting
time," "at the same place as before"-"about a
block away from the factory...." (According to
Garcia, he had stationed himself outside of the fac-
tory sometime prior to quitting time.)
Garcia continued that Baskin (another alleged
card signer as of November 16, and a missing wit-
ness) came out about 4:30 p.m., identified himself
as an old member of the Union, promised to sign
one of the cards, recei' ,d a card, said he didn't
have time to sign it at that time but would sign it
and would leave it for him in the office. Garcia said
he found this card next morning on his desk. He
was unable to obtain other signatures at that time
because the other employees seemed to be in a hur-
ry, but he gave additional cards to Acevedo for the
purpose of soliciting signatures because Acevedo
had told him that he was "sure everybody wants a
union inside and I know they going to sign." The
Ivy Matthews (Boyd), the Vasquez, the Munoz, the
Cruz, and the Rivera cards were then identified by
him as having been delivered to him, in the form
they were at that time, by Acevedo, who gave them
to him, "in front of his house." (Compare with
other testimony to the contrary and the physical ap-
pearance of the cards themselves.)
Efforts then were made to procure from him
testimony for the purpose of demonstrating that
Seidenfeld's daughter, Leah, was not an ordinary
employee but was a part of management. All that
could be obtained was that he had seen her answer-
ing the telephone and first, "Maybe she was giving
CHARM HANDBAGS, INC.
some-" but later, after objection, changed to,
"She was giving work to somebody." This hap-
pened twice but it developed, finally during the
same interval of this testimony, that Leah had not
assigned work but had merely handed some pocket-
books to an employee who was engaged in packing.
Following the testimony quoted above as al-
legedly having been the conversation at Garcia's
first visit to Respondent's shop, we come to some
very strange testimony about subsequent visits and
additional conversations. These could have a bear-
ing on (a) the alleged demands upon the Respond-
ent for recognition and collective bargaining as
well as the whole 8(a)(5) phase; (b) the alleged at-
titudes exhibited by the bosses in response to those
demands; and (c) whether Garcia made such a visit
immediately before and immediately after the writ-
ing of the ambiguous letter of November 21, 1966.
It is to be recalled that by now Garcia had
testified to the effect that he had visited the shop
alone in the early part of November at which time
he had informed Boss Seidenfeld of his intention to
organize a union and that his second visit had been
on November 16, along with Organizer Feldman,
during which he had not engaged in any conversa-
tion with anybody except the few words with
Acevedo.
Counsel supporting the complaint asked him
whether he had had occasion to return to Respond-
ent after November 16. He replied, "Yes." In
response to her next question as to what had been
the reason for returning he said, "I remember I was
there around the 21st of December because the next
day we have a Christmas party in the office. I re-
member that time. It was the 21st." (Emphasis sup-
plied because of later reference.) This answer dis-
appointed counsel and she asked, "Was this date,
the 21st of December, the first time that you went
back to the shop after November 16th?" He an-
swered, "Yes." She pressed it further, "There was
no in-between visit?" He answered, "No." Then he
stated as the purpose for that visit that he went
there to inquire whether the Respondent would sign
a contract inasmuch as the Union had "everybody
signed so maybe you want to sit down and sign a
contract because the people are asking for a con-
tract."' Without identifying the person to whom he
allegedly was talking, he testified that that person
had told him he would have to wait a year and that
he had rejoined, "[I]f you don't sign the contract
now, we have to turn this cards over to the National
Labor Board." (Emphasis again supplied-for time
sequence.) The unidentified person is then alleged
to have said that he could do whatever he liked
because Respondent, "can't afford to pay the union
now if you don't want to give me one year."
(Although this meeting is supposed to have been
held on December 21 before the Union's Christmas
party, two representation petitions had been filed
with the Board-on December 6 and the other
December 15.)
131
After being shown General Counsel's Exhibit 2,
the letter dated November 21, set forth in full
above, the witness changed his testimony about the
third meeting having been on December 21, 2 days
before the Christmas party. He testified that there
had been another visit after the writing of that
letter. According to him, this letter had been writ-
ten after he brought the cards to his office manager
and was told that a "recognition letter [would be
sent] to the firm.... Later on he told me he sent a
letter of recognition to the shop." When no answer
was received, he made the visit to which I have just
referred and which was his afterthought as to an ad-
ditional visit prior to the December 21 visit. (This
makes a total of four visits.) When he made this al-
leged additional visit, he says he tried to talk to
Boss Pfeffer but Pfeffer would not listen and he ad-
dressed Seidenfeld, "[W]e have all the people al-
ready signed cards. Do you want to-did you
receive one of our letters, the recognition letter
from our union. He says to me, yes but I'm going to
tell you, Garcia, sorry, I can't afford to pay union
wages and nothing I can do now. I said to him, if
you don't want to answer the letter, you don't want
to sign the contract, we have doing [going] over to
the Board and take these cards to the Board. He
said to me, do whatever you like to do." This con-
versation allegedly was held prior to the time that
the Union had turned some cards over to the
Board. (This is as good a place as any to refer to
the fact that both petitions filed with the Board
represent "NO REPLY RECEIVED" to the
Union's request for recognition.) Although, as
heretofore noted, the file papers show that one of
the petitions was filed December 6 and the other
was filed December 15, the witness now testifies
that the Union filed its petition on January 5. (I
shall not speculate as to what relation this error as
to date might have borne' to his prior testimony
about the third meeting having been held on
December 21, just before the Christmas party.) In
any event, the witness solidified his testimony to the
effect that there had been`a visit prior to the pre-
Christmas visit and prior to the filing of the,
representation petition with the Board.
After testifying as to the number of persons
working in the shop at the time of the Feldman-
Garcia visit (his second), at the time he visited just
prior to the filing of the representation petition, and
at the time of the pre-Christmas visit, he testified to
another visit (now a fifth visit) sometime in or at
the end of January. He said that he saw "new faces"
and did not "see the people that" he had seen in
November and this caused him to address Boss
Pfeffer, pointing to the fact that there were new
faces and that there was another cutter working in
the place of Acevedo. Pfeffer just laughed and said
he had no work for them now and when he got
work he would call them. Additional alleged re-
marks by Pfeffer at that meeting were that the
former employees had been good workers, broken
132 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
in by him in his own way, and that he would like to
call them back, but Garcia would have to leave
them alone for a year and, if Garcia did not leave
them alone, he would not call them back but would
get others in their places. Garcia continued that he
replied that he thought Pfeffer would have to call
them back because they were his workers but
Pfeffer said, "I don't need them anyway if you don't
leave me alone." (A reference to the payroll record
shows that in the week ending January 6, there
were only four employees and all these had been
working the week ending November 25; in the
week ending January 13, there were the same four
employees and two 'more, Cruz and Maldonado,
both alleged card signers and both also having
worked in the week ending November25; in the week
ending January 20, we find that Maldonado had
been lost but there was a replacement, Lopez. The
other five employees were the same and they had
worked in the week ending November 25, 1966.
Finally, in the week ending January 27, the same
employees were there as had been in the preceding
week while in the following week, ending February
3, one Spira had been replaced by one Minz.)
The witness proceeded to testify about alleged
conversations had during off-the-record meetings at
the offices of the Board while the parties were there
in connection with the representation case
hearings. As to these conversations, he was unable
to testify as to what Feldman said to either Pfeffer
or Seidenfeld because they were talking in Yiddish
and he does not understand that language but he
did give some testimony as to what Feldman al-
legedly told him of what the conversations had
been between Feldman and the others. Over
Respondent's attorney's objection, I permitted
some testimony by this witness, and later by Feld-
man, as to remarks allegedly made by Respondent's
officers on the theory that, even if made during the
course of settlement negotiations, admissions
against interest are admissible. Now, after carefully
examining the transcripts of the representation
proceeding, taking further note of the very frequent
off-the-record recesses and of the climate which
must have prevailed, I 'have decided to disregard all
alleged conversations at the Board offices. (My
reference to "climate" is based on my reading of
the transcripts and the following incident. Respond-
ent was not represented by an attorney-at-law at
the first two sessions but brought along one Mindel
to aid during the hearing. Mindel was not an attor-
ney-at-law and was merely a friend "from the
synagogue." For some unexplained reason, possibly
unfamiliarity with Board procedure and belief that
he had to show some interest, he stated he had an
interest as a silent partner and his appearance was
noted on the appearance sheet for December 28.
At this hearing and on the one held next day,
December 29, the Union was represented by an at-
torney (not the attorney who participated in the
trial of this proceeding). On the very first day of
that hearing, while the attorney then representing
the union was interrogating Seidenfeld on direct ex-
amination something which is not disclosed by the
record happened. It was probably some interrup-
tion by Mindel. The attorney then took control of
the hearing and made the following statement, "Mr.
Examiner [not an A.P.A. Hearing Examiner but a
Board Hearing Officer designated to sit in the
representation case], this man is not a lawyer and I
don't want him interfering anymore. When he is
called as a witness, we will listen to him gladly. In
the meantime I suggest he keep quiet." The Hear-
ing Officer made no comment or ruling and the in-
terrogation continued. It is clear that Mindel was
effectively squelched and there is no hint of par-
ticipation by him in the hearing at any time
thereafter. On the next day Pfeffer seems to have
been alone.)
Although three charges were filed prior to the is-
suance of the complaint, the last charge having
been filed at the opening of the Board's office on
the morning of February 3, 1967, Garcia testified
to another meeting (a sixth) with Pfeffer in Februa-
ry. This testimony was given in two installments.
In the first installment he said he made a visit in
February during which he saw new faces and failed
to see Maldonado or the others including Munoz.
He remarked about this to Boss Pfeffer who said,
"[S]o what did I need the union people over here. I
have these people working here. What did I need
the others for ... well, you want to be my friend,
will you please don't come inside the shop any-
more. If you want to see me outside, you can say
hello to me but not in the shop."
In the second installment about this meetinhe
enlarged upon his prior testimony. He testified-that
he had said jocularly to Pfeffer, ". . . [M]aybe you
want to sign a contract without no benefits. Maybe
we going to give you a year now," to which Pfeffer
allegedly responded, "[W]hat do I need a contract
now. You see, I got the whole shop working here."
Then, although he testified further, "Nobody was
from the same people there when I signed the cards
that day," almost in the same breath, in response to
another question, he said, "I recognize only a few
people there. Miss Seidenfeld, the fellow that I see
cutting in the place, the cutter, he was an operator
and then he was cutter in Luey's [Acevedo's]
machine, I see the same fellow. And I see a mute
lady and a few new faces." [To review, Leah
Seidenfeld was the daughter of Boss Seidenfeld, the
cutter was Kupfer, and the mute lady was Schuster.
Except for these, all the other faces were supposed
to be new faces. An examination of the records
shows that in the week ending February 3, in addi-
tion to Kupfer, Leah, and Schuster, an alleged card
signer, Cruz, and two new employees were working;
in the week ending February 10, one of the two
new workers was replaced by another, but the
number of employees remained the same; in the
week ending February 17, the other of the first two
CHARM HANDBAGS, INC. 133
new workers was replaced by another new worker,
the old workers remained the same, but there was
still another addition to the payroll and this was Ivy
Matthews Boyd, another alleged card signer and
discriminatee; in the week ending February 24,
there were nine employees which included those al-
ready mentioned as well as the two alleged card
signers, Cruz and Matthews (Boyd); in the week
ending March 3, there was another increase by one
of the personnel but otherwise the payroll for this
week remained as before including Cruz and
Matthews (Boyd).]
The witness' direct examination was concluded
with his testimony about this alleged sixth visit in
February.
In summary, now, we have testimony from Gar-
cia presented for the purpose of establishing receipt
by the Union of a quantity of signed membership
cards allegedly sufficient to give it a majority in the
unit, a meeting in which an alleged demand based
on this majority was made but rejected, union
animus in the form of alleged statements made by
Bosses Pfeffer and Seidenfeld, confirmation by
them of the fact that employees had been
discharged because of union activities, defiance by
them of any obligation to reemploy persons al-
legedly laid off for lack of work, and unwarranted
and bad-faith refusal to recognize the Union and to
bargain collectively with it, following written and
subsequent oral demands (this last even though as
noted before two representation petitions were filed
and both said, in answer to box 7(a) that a demand
had, been made on November 21 to which, "NO
REPLY RECEIVED.")
Despite the inconsistencies already apparent in
Garcia's testimony, his answers during cross-ex-
amination become even more revealing.
The cross-examination started with a request by
Respondent's attorney that Garcia review the
meetings which he claimed to have had with Pfeffer
and/or Seidenfeld in the shop. As before, he
testified that the first meeting was early in
November, at which time he spoke to Boss
Seidenfeld whom he knew by that time and who
was introduced to him by Seidenfeld's daughter. He
next testified that the second meeting was on
November 16, along with Feldman, at which the
person with whom Feldman spoke was Seidenfeld.
So far he was testifying consistently with his initial
testimony on direct. However, things began to hap-
pen now. This time he testified that the third meet-
ing was on December27 or 28 and he remembered
this meeting particularly because of the fact that it
was after the Christmas party. (That there was an
alleged meeting in December and that it was the
third meeting also is consistent with Garcia's initial
testimony on direct except that this time that third
meeting was not before the Christmas party which
was the focal point for recollection by him then but
was after the Christmas party which was now the
point for recollection by him. He was very positive
about this and reaffirmed that it was after the
Christmas party, around December27, 1966.) This
alleged December 27 meeting was the meeting at
which he tried to speak to Boss Pfeffer but actually
spoke to Seidenfeld. On direct he did not tell with
whom he spoke at the alleged December 21 meet-
ing but the subject matter of what he claims he
spoke about was later related to an alleged conver-
sation not with Seidetifeld but with Pfeffer. Then as
on direct, the witness testified that there had been a
meeting in late January at which he spoke with
Pfeffer and one in February at which he spoke to
Seidenfeld. He summarized the number of the
meetings had as having been either five or six, he
was not sure. The meetings were reviewed again as
having been the alleged meeting in early
November, the alleged meeting on November 16,
the alleged meeting on December 27, the alleged
meeting in January, and finally the last meeting in
February; thus we now have a total of five
meetings.
He was now brought back to the alleged first
meeting in November and confirms, as he has
testified before, that he spoke only to Seidenfeld
and not to Pfeffer at that time. This time, however,
he said that he told Seidenfeld he could supply work-
ers to Respondent and get work from contractors
"to make his business more successful." (This is
quite interesting when compared to his initial
testimony about the conversation at the first meet-
ing and also with what Organizer Feldman testified
he had told the bosses.)
It was next brought out that although as he had
testified on direct, he had told Seidenfeld that the
workers had asked him to obtain benefits for them,
none had been signed at that time. It was here, on
being so reminded, that, despite the testimony he
had given only seconds before, he denied that he
had spoken during that meeting with Seidenfeld
about the advantages of his signing a union con-
tract.
He next was asked at which of the meeting dates
(early November, November 16, December 27, late
January, and mid-February) he had spoken to
either Seidenfeld or Pfeffer concerning the Union's
letter of November 21. He testified that he had
such a meeting "around 6 days after they send this
letter." Since this would have established a meeting
on or about November 27, he was reminded that he
had testified about a November 16 meeting and a
December 27 meeting and was asked whether there
had been other meetings "that we didn't know about
up until now?" He answered, "No." He was re-
minded that he had said there had been a meeting
"6 days after this letter was sent," but this time he
answered, "Maybe. I won't say exactly." Right after
that he reaffirmed,-as he first had testified on cross-
examination and contrary to what he had testified
on direct examination, that the next meeting after
the Feldman-Garcia meeting of November 16 was
on December 27, after the Christmas party. It was
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at this meeting, he said, that he tried to talk to
Seidenfeld and Pfeffer but Pfeffer left and he spoke
only to Seidenfeld, asking him whether he had
received the letter from the Union to which
Seidenfeld replied that, he was "never going to sign
a contract with the union because [he] can't afford
to pay union wages and if [he] see somebody want
to join this union, [he] don't think [he] going to
keep them over here."
Several things were then firmed up by Respond-
ent's attorney-that this remark had been made
by Seidenfeld on December 27, that the representa-
tion petition already had been filed, and that
Baskin, Acevedo, Maldonado, Munoz, and
Matthews (Boyd), all had been laid off at the time
of this meeting. (If this meeting was on December
27, it was during Christmas week and only four per-
sons were working. If it was on December 21, as he
had testified on direct but not on cross, certainly
Maldonado, at the very least , was still working
there.)
Next, Garcia was asked, "Before this conversa-
tion which you just told us about, did you have
another conversation before it about that letter?"
He answered, "No." Right after this, the witness
said that every time he spoke to Respondent's of-
ficers they told him he would have to wait a year
before they would sign a contract but, "He didn't
say he wouldn't sign. He said maybe. He didn't say
yes, he didn't say no."
The witness was now confronted with the af-
fidavit he gave to the Board agent in January 1967.
He was asked to read from that affidavit and read:
"I have only been in Charm Handbag twice as I said
before." (Emphasis supplied.) So now, when he was
asked whether he had had two or three meetings
(two having been the quantity specified in the af-
fidavit, three having been the quantity specified on
cross, and four having been the quantity specified
on amended direct) he answered that he couldn't
remember exactly but that it was either two or
three, and that these were in early November,
November] 6, and December27. So now, contrary to
what had been brought out on amended direct to
the effect that there had been four meetings before
January, including a meeting toward the end of
November following the writing of the letter, he
testified positively that there had been at best only
three-in conformance with his testimony previ-
ously on cross-early November, November 16,
and December 27.
After some questions about the various conversa-
tions, he had testified he had, he was brought back
to the alleged first meeting which he had testified
had been with Seidenfeld. He was "very sure" of
that. He was then confronted with an affidavit
dated February 6, 1967, given to a Board agent fol-
lowing the time that he gave the first affidavit.
From the questions and answers which followed it
became clear that in that affidavit the meeting had
not been reported as having been held with
Seidenfeld. -
Although the witness tried very hard to evade an-
swering a question as to whether Boss Pfeffer ever
had told him that he had called the old people back
in January but that they didn't want to come he
finally admitted that Pfeffer had told him this. The
cross-examination was concluded with some
questions and answers involving Garcia's alleged
familiarity with or knowledge of the -work done by
employees in the shop. He testified that Acevedo
had been a cutter and "also general 'helper" and
"when- they haven't got too much work they put
him on the floor." This, in a sense, even though ul-
timately I discredit practically all of his testimony,
suggests that Respondent's business actually was
starting to slow down when Kupfer was put on
cutting and Acevedo was transferred to the floor.
This was accentuated further by a reference to Mal-
donado's work which was normally that of an
operator. He said, "As I say before, when they
haven't got any operator's job, they don't want to
lay-off the people and they put her on the floor."
And she did work on the floor.
The morass in which Garcia had entangled him-
self by his own testimony was so clear and disturb-
ing that the Charging Party's attorney, after counsel
supporting the complaint released the witness,
proceeded to try to put him back on the track. The
effort was valiant but, even with skillful leading
questions, the witness entangled himself only more
strongly. At first he seemed to be coming along all
right but then, when asked, "On what basis [did he]
recall it was 5 or 6 days" after the Union's
November 21' letter was sent, he answered, "It was
after Christmas, any way." (Emphasis supplied.)
Faced with this positive answer, the Charging Par-
ty's attorney then asked, "Will you look at GC-2
and the date-," which question' was interrupted by
Respondent's attorney objecting saying, "It appears
now that Mr. Bogen is attempting to 'impeach his
own witness." The Charging Party's attorney then
asked to be heard and, in response to the Respond-
ent's attorney's request that the witness be ex-
cused, I stated to-him, "You have got this locked
down a minimum of 4 times so I will allow Mr.
Bogen to continue." By this time, anything that
Garcia would have said was not going to make
much difference in the light of his-prior testimony
and I was anxious to get along with the case. Now
the witness had no difficulty remembering that the
union letter had been sent on November 21 and he
answered, with respect to ameeting at Respond-
ent's plant, "It was around 7 days after the 21st of
November. I was saying some month [sic] in
December. I know it was in November the 28th.
Around the 28 or the 27th." Further questions
sought to emphasize and they did bring out that the
witness was now testifying that this meeting had
been in November and not in December, the wit-
ness pleading that he had made a,'mistake when
CHARM HANDBAGS, INC. 135
previously he had answered December. The reason
given by him for having made the alleged mistake
was, "Because we filed this letter on the 21st and
about 7 days I went over to the (Union's office)
manager and the manager told me to come around
the shop." Next, continuing the redirect, the wit-
ness testified that during the alleged November 27
or 28 meeting he spoke to Boss Pfeffer inside the
shop with no one else present. Pfeffer took a
telephone call and then left and this resulted in his
talking to Seidenfeld, instead. No one else was
present at this conversation. He then testified that
after he had asked Seidenfeld whether he had
received the Union's letter Seidenfeld said, "[E]ven
though we received the letter we never going to
sign a contract because we can't afford to pay a
union dues and union wages. I mean union wages.
Sorry about the dues. Then I said to him, then I
have to send this cards to the Labor Board. He said,
do whatever you like to do." When asked if he had
related everything to which he had testified about
the conversation he said, "I think he told me that if
I leave them alone for a few-for one year, he is
going to lay-off all the people he got on and he not
going to call them back." After that answer was
read back to him, he interrupted another question
and said that Seidenfeld continued, "They are very
good workers and I break them as my way. They
are very good workers but if you don't going to
leave me alone for one year I never call them
back."
Still on redirect, he was asked what meeting, if
any, followed that November meeting and he said
that he was, sure there had been a meeting in
December around the 21st. He was reminded, how-
ever, that one cross he had testified December27 or
28 and he was asked, "Did you meet on the 21st or
did you meet, on the 27 or 28th?" He answered, ob-
viously to the chagrin of the interrogator, "I meet
the 27th" (emphasis supplied) and he emphasized
without letting the interrogator complete his
question, that it was in December! Finally, with dif-
ficulty and building-block questions the witness an-
swered, "It was on the 21st" and he explained his
prior lapse by saying again it was a mistake and he
remembered clearly that it was the 21st, "Because
we having a' Christmas party the next day and I
come the day before." Thus, after 7-1/2 pages of
struggle to rehabilitate, the witness finally reverted
to his original testimony that the December visit
was before the Christmas party and receded from
his later testimony, repeated several times in a most
emphatic manner, that it was after the Christmas
party.
Now he was brought to the alleged meeting on
December 21'st and said that during this meeting he
spoke to Seidenfeld and inquired why the "old
people" had not been recalled because he saw new
people there but Seidenfeld said, "[W]hen we get
work we call the new people-the old people I
mean . Excuse me." He said this was the entire con-
versation at that time but, that during the same
visit , he also spoke to Pfeffer . He testified that he
asked the same question of Pfeffer as to why the
"older people " had not been called back but that
Pfeffer said, "maybe when I-I got some more
work , I call them , maybe. I'm not sure about that."
This was entirely different from the testimony he
had given initially on direct . At that time he had
testified that he told " the owner" that the people
had signed the cards and had asked him to sign a
contract but had been put off ; also that". . . Baskin
wasn 't there at that time .... About the others I re-
member was the same faces." ( Emphasis supplied.)
Also, his initial testimony on direct had been that
at the meeting in January he had spoken to Pfeffer
and had remarked that there were "new people
there" and asked why the old ones were not called
back but that Pfeffer had laughed and said, "I am
slow now. I have no work for them now. So when I
get work I call them.... they very good workers
and I like to keep them over here because they-I
break them in in my way and I would like to call
them back but you have to leave me alone for one
year . If you don't leave me alone, I won 't call them
back no more. I am going to get somebody else and
I'm going to leave them out." However , on redirect,
when he was brought back to the January meeting,
he testified that at that time he spoke to Seidenfeld
(not Pfeffer ) and that Seidenfeld told him, in
response to his observation that new faces were
working, "I don 't have to call them anyway. I got
my shop working. Why did I have to call them? ...
even though I call a few of the people that was
working here, nobody show up."
Next he was brought to the alleged February
meeting at which he said he spoke to Pfeffer and
again referred to the fact that there were new faces
there and asked when the old people were going to
be called back but Pfeffer "laughed " and said,
"[W]hy do I have to call the old people. I have the
whole shop working . I don't think I have to call
them anyway. Who is going to give me the orders to
call everybody again , the old people again . I said to
him ...." But he was not permitted to continue
because the interrogator interrupted him saying,
"Have you finished your answer , Mr. Garcia?" To
which the witness answered , " I think he told me
something else but right now I forget." Next, in
response to a question as to whether " the subject of
the contract" was raised at that conversation he
said that he offered Pfeffer a contract for a year
without benefits but that Pfeffer answered,
"[W]hat did I have to sign a contract. And he
laughed ." That appears to have been the end of the
February visit and there were no further visits after
that.
To recapitulate : On direct the witness had
testified that during the alleged January meeting he
had spoken to Pfeffer and had observed that there
were new faces and inquired why the old ones were
not recalled but Pfeffer just " laughed." And said, "I
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
am slow now. I have no work for them now. So
when I get work I call them .... they very good
workers and I like to keep them over here because
they-I break them in in my way and I would like
to call them back but you have to leave me alone
for one year. If you don't leave me alone, I won't
call them back no more. I am going to get some-
body else and I'm going to leave them out." But, on
redirect, he said the January meeting was with
Seidenfeld, not Pfeffer, who had responded to an
observation about new faces working with remarks
to the effect that his shop was working and that
there was no need to call the old workers back and
that, although he had called a few, nobody had
come. Also on direct, he had testified that at the al-
leged February meeting he again spoke to Pfeffer
and asked about Maldonado, Munoz, and others
but Pfeffer said, "[S]o what did I need the union
people over here. I have these people working here.
What did I need the others for.... you want to be
my friend, will you please don't come inside the
shop anymore. If you want to see me outside, you
can say hello to me but not in the shop." According
to that initial testimony on direct, this was the con-
versation during the February meeting. On redirect,
however, in addition to giving a different version of
this conversation he was prompted to testify to the
effect that he had offered Pfeffer a contract for a
year without benefits but Pfeffer said, "What did I
have to sign a contract? and he laughed." On cross
after firmly fixing the time of the meeting in
December as having been after Christmas, he
testified that he -spoke to Seidenfeld and asked him
whether he had received the letter from the Union
and Seidenfeld said, "I received this letter anyway
but I never going to sign a contract with the union
because I can't afford to pay union wages and if I
see somebody want to join this union, I don't think
I going to keep them over here." He added later,
"He [previously identified as Seidenfeld] always
told me that ... he had to wait for a year because
he hasn't got no money to pay union wages."
The witness was released from redirect and there
was additional cross-examination. He was asked
whether, in any of his conversations with either
Pfeffer or Seidenfeld, he ever explained the phrase,
"I am going to bring the cards to the Board." His
answer was that it had been done in the November
27 or November 28 ^ meeting with Pfeffer. Then
when asked what his explanation had been he said,
"My explanation was, I tell him you received this
letter being a recognition from the workers as they
like to have a union here. He [Pfeffer] says to me,
well, what's the reason? If they want the union but I
don't want the union. How come I going to put the
union over here even though I can't afford to pay
the union wage. He says to me, I tell him anyway,
then I have to take these cards over to the Board.
He says to me, do whatever you like." The witness,
responsively to the next question, testified that he
had told Pfeffer, "I have to take it over to the
Board." The recross was now concluded.
The foregoing shows a long series of inconsisten-
cies. I shall refer to but a few. One of the most im-
portant involves the effort to bring out during the
hearing the fact that there had been a November
meeting following the November 21 "demand"
letter. The January affidavit given- by Garcia to the
Board agent had been given at a time closer to the
happening of the events. In that affidavit he had
stated, "I had only been at Charm Handbags twice
as I said before." Any visits he had made to Charm
would have included his solo meeting early in
November and his meeting -accompanied by Feld-
man on November 16. No matter how bad his
memory or how confused he might have been, he
had to remember the November 16 meeting
because he used it as the base for the cards. This
adds up only to the two meetings which were so
firmly averred by him in the affidavit procured ex
parte and presumably under ideal conditions. In
contrast, his trial testimony flip-flops all-around ad-
ditional meetings-one just -before the Christmas
party later changed to just after the Christmas party
and another, into which he had to be pushed, late
in November, a few days after the sending. of the
November 21 letter. Another interesting facet of
his testimony is the fortuitous similarity of the re-
marks allegedly made to him by both Pfeffer and
Seidenfeld at varying times and those to which
Feldman had testified had been made to him alone,
presumably in Yiddish.
In the light of all the testimony given by him, my
comparison of it with testimony given by others
called in support of the complaint, and my observa-
tion of him on the witness stand, I am unable to ac-
cord to it any credence whatever and I reject it all,
including that concerned with the meetings at the
Board's office during the representation case
proceedings.
Apart from Pfeffer's 5-day ordeal as an adverse
witness called in support of the case-in-chief, there
remains only the testimony given by Feldman, the
Union's general organizer. Considering the state of
the record as it exists, without referring to the
testimony of these two witnesses, it seems rather
unnecessary for me to continue further. I shall refer
to it briefly, however, more for the sake of
completeness than anything else.
Feldman testified only to two meetings- at
Respondent's premises and to various alleged con-
versations held at the offices of the Board during
the recesses of and before and after the formal
representation case hearings. These sessions were
held December 28 and 29, 1966, and January 12
and 23, 1967.
Feldman's first meeting at Respondent's premises
was sometime during September 1966 when, while
visiting the building, he accidentally observed that
there was a handbag factory there with which he
was not, familiar. This' appeared to be "Brooklyn
CHARM HANDBAGS , INC. 137
Handbags." He walked into its shop and observed
some workers whom he recognized as being union
members, particularly one Baskin. He also recog-
nized Pfeffer and Seidenfeld whom he had "known
as workers in our industry." He testified that they
came up to him and he asked them whether they
were working but they said they were the bosses
and that they were " in business ." He told them that
this was very nice, wished them luck, offered to
assist them, referred to the fact that there were 550
union shops in the industry which was 99 percent
organized and informed them that the Union had
many workers it could send them to help them out.
Pfeffer appeared to be the spokesman, said that was
very nice, asked Feldman for his card, and com-
mented, "We know the Union but you give me your
card and we will call you if we need any help."
The second meeting, Feldman continued, was in
the early part of November at which time, as ap-
pears above, it is claimed that Garcia accompanied
him. At that time the conversation was with
Seidenfeld, who was there without Pfeffer. Feldman
said he remarked to Seidenfeld that he had not
heard from him for two months and was everything
all right, to which Seidenfeld replied, "[Y]es. Our
workers are very,good, we have broken them in the
way we want them. Some of them are experienced
workers...." Feldman testified that he repeated
that he had not heard from them and Seidenfeld
said, "[W]ell, I intended to keep these people and
if I need any additional, I know where to get them. I
may call you." It also was brought out a little later
that Seidenfeld had said, "[O]ne thing I want to ask
you, you got to give us a chance. Don't bother the
people, don't talk to the people, don't bother them
for at least a year. I've got to have a year to build
the shop. When I'll have about 25, 30 people, then
we can see what we can do." Feldman said he
replied to this, "Mr. Seidenfeld, that's not the way
it's being done. These people want a union shop be-,
fore that time, it will be before. We are going to
solicit these people." To this, he testified,
Seidenfeld replied, "If you do, these people are not
going to work for me," to which Feldman says he
retorted, "Well, you told me they are good people.
Why are you objecting. You were a member the
union yourself. You were working in a union shop."
(Although it is not important, it is doubtful whether
Seidenfeld ever was a member of the Union. Except
for Feldman's testimony as to former union mem-
bership of Pfeffer and Seidenfeld, there is no affirm-
ative ^ proof of this. Pfeffer specifically denied ' that
he ever had been a member and asserted that he
was unaware` whether Seidenfeld had been.)
In anticipation of a possible economic defense,
counsel supporting the complaint then entered into
a new line of questioning. She inquired whether
there were seasons in the pocketbook industry.
Feldman said there were but not for the jobbers'
type handbag which Respondent manufactured. In
this connection he testified (and this will become
important later) that on a second visit to Respond-
ent's shop in November, "[H]e already made
white stuff. He already made light colors , which is
for the spring season , which the jobbers must have
in their possession by the end of December and the
beginning of January for distribution." He added, a
few questions later , that at the time of the second
visit in November, he recognized from the work
with which he was familiar that Respondent was
doing contract work for Dandy Handbag Company.
Just a little later, in response to another question
from the General Counsel as to whether it was true
that on both visits Respondent was making hand-
bags for Dandy, he said, "No. At the beginning I
didn't-the bags that I saw looked to me like they
were sold on 37th Street in the-jobber's stores [the
millinery center]," such as Star Line and other job-
bers. But he repeated, on, "My second visit, I knew
that they were the Dandee Handbags." ( Emphasis
supplied.)_
On cross-examination, contrary to what he had
testified on direct about what he had observed was
being manufactured on Respondent' s premises on
his first and second visits, he testified that in Sep-
tember, on the first visit, Respondent was working
on contract work for Dandy and emphasized in
response to another question, as to whether it
wasn't the other way, "No. It was September."
(Emphasis supplied.) He now described the Sep-
tember production as "Not summer [ bags but 1]ight
colors. Gray, green, red, blue, black." Then in the
second visit, the November visit, he said Respondent
was not doing contract work for Dandy and, when
reminded that he had testified on direct that the
November production was light colors, he insisted
that on both visits the production had been the
same and that Respondent was making "all colors."
Although on direct he had testified that the rule
for seasons did not apply in the portion of the in-
dustry in which jobbers' type handbags were manu-
factured and moreover that there were no busy and
slow seasons today because of the plenitude of
work, he became difficult on this issue during cross-
examination but was forced ultimately to admit that
the pattern of union contracts in the industry is to
have vacations fall during the 4th of July and
Christmas weeks.
Another sharp discrepancy involves Feldman's
testimony about the Baskin union card. (It should
be borne in mind that Baskin was not called to tes-
tify.) The Baskin card is dated November 16, 1966,
yet Feldman testified he received it from Baskin
sometime during September, two days or two weeks
after he visited the shop and that the date on the
card was the date Baskin signed it. Two days or two
weeks after a meeting in September could be no
later than the middle of October-certainly NOT
November 16. Compare this with other testimony
that it had been found by Garcia on his desk on the
morning after the November 16 meeting-not two
days or tv o weeks after that meeting either! The
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter was brought up again on redirect. The wit-
ness was asked by counsel supporting the complaint
(after directing his attention to the date of the
Baskin card), "[D]oes it refresh your recollection
as to whether the November 16, '66 date was the
date of signing or the date of payment into the
union or something else?" However, he did not
swallow the suggestion sought to be conveyed by
the question and answered, "No, I wouldn't know
that because he came to the office, I don't re-
member the date. It might have been 2 weeks, a
week, a day, a month, I don't know, from the time I
saw him in September. And he put the card on the
table and he said give this to Garcia, because I
didn't give it to him downstairs in front of the shop.
We have his old application as a old member of the
union." (Emphasis supplied.) When asked about
the date on the card he said that he didn't look at
the card and saw only that it bore Baskin 's signa-
ture and "took it for granted that he signed an ap-
plication."
Obviously, if it were true that Baskin gave Feld-
man this signed union card within days or a week or
even a month after the September meeting he
couldn't have given him the card on November 16,
the date which the card bears. Just another element
against credibility of both Feldman and Garcia.
The witness showed his evasiveness and unrelia-
bility in still another respect. A question had arisen
as to the number of employees in the shop in Sep-
tember-whether there had been seven excluding
the two bosses, Pfeffer and Seidenfeld. This in itself
was not important but the incident which followed
was revealing. Feldman was asked to read aloud
from the affidavit he had given to a Board agent.
He exhibited either a strange inability or a strange
unwillingness to read correctly from it. It took four
questions before he was willing to read the follow-
ing:
Upon entering the premises I saw 7 people in
the shop. 2 of them came over to see me who I
thought were members of our union and they
introduced themselves as Mr. Pfeffer and Mr.
Seidenfeld. And they are partners and started
manufacturing handbags.
As I have said, the discrepancy between five and
seven or nine employees at the time of the Sep-
tember meeting is of little significance. However, it
is of material significance, as a basis for judging his
attitude, conduct, and demeanor, on the witness
stand , to find that, despite the insignificance of the
discrepancy, the witness balked most stubbornly at
reading the actual contents of the paragraph to
which his attention was directed because he real-
ized that the contents indicated that the total
number of employees or persons at the premises
were seven including, not excluding, both
Seidenfeld and Pfeffer.
Most of Feldman's other testimony concerned al-
leged conversations held at the Board offices during
the time that the representation case hearings were
in progress. In the portion of this decision con-
cerned with Garcia's testimony I have expressed my
opinion of the evidentiary value of these conversa-
tions. It should be recalled also that Respondent's
attorney consistently objected to the reception of
testimony concerning alleged conversations at the
Board's offices during the pendency of the
representation case. Furthermore, it was charac-
terized by the Charging Party's attorney, during the
course of his summing up, as "of such a nature that
[he] can't possibly summarize it." The testimony
was indeed barely, if at all, comprehensible. It was
brought into the record in response to this broad-
side introductory question by counsel supporting
the complaint (!):
Mr. Feldman, did you on December 28 or
December 29, 1966, or January 12 or January
23, 1967, those being the days that the hearing
on the RC petition were being held, have a
conversation with Mr. Seidenfeld or Mr.
Pfeffer or both concerning the company's
recognition of the union or terms or conditions
of the contract or the discharge of any em-
ployees or the reason for that statement or
failure to reinstate any employees?
He testified that the first conversation was not at
a hearing but when Seidenfeld and Pfeffer had been
asked to come down to the Board following the
Union's request for an election. He said, " [ W ] e
told him to stop discharging the workers because of
signing application cards and why don't he get
together with the union. We have a majority of the
workers and 550 manufacturers, 99 percent of the
industry is unionized. We can sign an agreement
with him for decent conditions as everybody else in
the industry has. And he [Pfeffer] told us at that
time he is not going to have a union shop for at
least a year, at least more than a year. When he will
have a big shop with 25, 30 people and he will,
make money, he will get together with the union.
And he don't care what the people say." When I
expressed my dissatisfaction with the fixing of the
time the witness answered, "Well, I would say that
it took place on 3 or 4 occasions. He was without
an attorney at that time. He brought along a gent-
leman from the synagogue to be a so-called in-
terpreter and was on 3 or 4 occasions before he
brought Mr. Pollack [Respondent's present attor-
ney] into the picture." In response to my specific
question as to whether he claimed that he actually
made the same remark and that Pfeffer also made
the same remark on each of 3 or 4 occasions the
witness answered, "Yes, sir." I repeated, "And that
it happened 3 or 4 different times?" He answered,
"Yes, sir." I then asked, "And this happened
everytime at an office of the Labor Relations
Board?" He answered, "At a hearing at the office.
At hearings and at an office.... On lone occasion
when ... Mr. Katz was sitting on the judge's chair
and he had Mr. Pfeffer and Mr. Seidenfeld here and
this gentleman from the synagogue who was sup-
CHARM HANDBAGS, INC. 139
posed to speak for them. There was suggestions
made. Why- can't we get together." (Emphasis sup-
plied.)
This last remark certainly supports Respondent's
attorney's objection that these were settlement
negotiations. Moreover, the representation case
hearing transcripts do not show a Mr. Katz as hav-
ing been the Hearing Officer. The Hearing Officer
was Mr. Kenneth Hagood at all four sessions. One
well may wonder at and have serious misgivings as
to what sort of atmosphere was caused by making it
appear that an investigator, Mr. Katz, was a judge
presiding at a settlement conference!
Feldman continued that Pfeffer answered, "We
can't afford-to have a union shop at this time. We
aren't going to have a union shop. Even though you
have the cards ...." Then again, without stating
when, the witness continued his testimony, "At the
hearings when it was brought out that we can't go
to an election when he laid off all the workers, he
laid-off most of the 7 people-most of the people
that were there originally, we asked him, we told
him that it was wrong to do that. And we told him
that he is keeping his promise, he said he is not
going to have-if the people sign application cards,
they are not going to work there, even though he
told me they were good workers. His excuse was at
that time that he hasn't-it's slow in the industry.
That's why he laid off the workers." (Emphasis sup-
plied.) (Note that the witness started to tell us what
I infer was Pfeffer's denial of the charges but that
he quickly stopped. Yet he did say that the witness
had explained that the layoffs were because it was
slow.)
Then Feldman continued, "[A]t another hearing
... we asked [an unspecified] him, when are you
going to call the workers back. He said, `Well, I
don't know if I can use any of these workers. They
may want to work elsewhere. But we may call back
one or two people."'
There then followed quite a bit of testimony
which obviously involved settlement negotiations.
Respondent's attorney's prior objection was
sustained and this was stricken. Next, anticipating a
possible defense, counsel supporting the complaint
obtained Feldman's testimony that no question ever
was raised as to majority status and that Respond-
ent's officers never asked him to exhibit signed
authorization cards-all in response to leading
questions. The witness then added, however, that at
one of the meetings at the Board offices he men-
tioned the names of the card signers to Respond-
ent's officers and was told, "I know you have
them."
Apart from the weaknesses of all this testimony
as to what had transpired at the Board offices, no
matter how bad-sounding, upon a superficial read-
ing, the alleged refusals to make a contract at the
time of the representation case hearings, or the al-
leged demonstrations of the union animus to a
union organizer-not the employees-or the al-
leged refusal to recognize the Union in response to
demands made at the representation case meetings,
all may appear, it is clear that they were made dur-
ing efforts to resolve a pending representation
proceeding with skilled union organizers and an at-
torney on the one side and two $91-a-week pocket-
book makers, whose friend was told to keep quiet, on
the other side. I am unable to accept this sort of
proof in support of any remedial order in this
proceeding. Moreover, this testimony was given by
Feldman whose answers on other matters were
clearly to be discredited. I do not accept as true his
version of the statements allegedly made at the
Board offices and, as a consequence, apart from the
inherent doubts as to the relevancy and propriety of
that evidence, I reject it as unworthy of belief. I re-
ject as well all other testimony given by Feldman
because I have concluded, both on the basis of my
observation of him on the witness stand and all the
contradictions and discrepancies in his testimony
that no reliance may be placed upon it. (The vari-
ous hypotheses which I have set forth in the first
sentence of this paragraph were effectively denied
or relegated to their proper places in the time
sequences which would have had to be considered
had it become necessary to determine whether, in
fact, there had been conduct in violation of the law.
By time sequences I refer to the various times
which would have had to be considered-
November 21, December 27, 1966, and numerous
days in January 1967.)
There remains only the question whether I should
spend any time at all analyzing Pfeffer's testimony.
He is assailed both by the General Counsel and by
the Charging Party's attorney as an untruthful, eva-
sive witness. While I do find some discrepancies in
his testimony, much of it is demonstrated to be in-
controvertibly true particularly in relation to frag-
mentary testimony given by some of the other wit-
nesses and the payroll records which, in my
opinion, have been shown to be absolutely correct
in every respect, despite the charges repeatedly
made during the hearing that they had been fal-
sified. That there were not more discrepancies in
Pfeffer's testimony, or that he did not ultimately
break down physically as a witness seems remarka-
ble to me in view of the facts that he attended the
hearing every day all day and was on the witness
stand from 1:45 to 4:30 p.m. on Monday, May 22;
again on Thursday, May 25 for a good part of the
time between 4 and 5 o'clock, after, having at-
tended all that day; then all day on Friday, May 26,
from 10 o'clock to almost 3:30 p.m.; then again on
Wednesday, May 31, for a short period and ex-
cused only for the purpose of taking the testimony
of a witness on jurisdiction; then on Thursday, June
1, from shortly after 10 o'clock -until 1:10'p.m. and
again on that day at 3:15 p.m. until approximately
5:30 p.m. An idea of the extent and, quantity of his
testimony may be formed from the fact that my
summary of it from the transcript has consumed
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about twenty pages of legal sized paper, double-
spaced, typewritten. I should add that the allega-
tions of claimed violations not only have- been de-
nied by Pfeffer in his testimony but such denials
were supported by reasonable and completely un-
derstandable explanations to which he testified of
firmatively and responsively to questions
propounded to him by hostile counsel (not one but
two).
As I may have noted elsewhere, Pfeffer gave his
testimony as an adverse witness under Fed. R. Civ.
P. 43(b) called in support of the complaint. The
finger is pointed accusingly at ,the Respondent as to
why Seidenfeld was not called by it. In so doing,
counsel overlook the fact that Respondent rested at
the conclusion of the General Counsel's case. It was
not required to undertake the defense of a proceed-
ing of this nature if it was advised that there was
not sufficient in the case-in-chief upon which the
Board would be justified in issuing a remedial
order. As a matter of fact, when counsel supporting
the complaint exhibited some displeasure with an-
swers being given by Pfeffer, I inquired whether the
subpeona ad testificandum had been issued to him
or to Seidenfeld. Her answer was that it had been
issued only to Pfeffer. If it turned out, as counsel
seem to suggest, that Pfeffer did not know enough
or did not remember enough to serve as an
adequate witness, there was nothing to stop her or
the Charging Party from requesting the issuance of
a subpoena ad testificandum to Seidenfeld. No such
request was made.
In any event the interrogation of Pfeffer was
more like a third degree than Fed. R. Civ. P. 43(b)
examination in an administrative law proceeding. I
cite only two instances to aid the reader in un-
derstanding why I make this remark. Although it
had been stipulated that the Union's letter of
November 21 had been received by the Respond-
ent, and the counsel supporting the complaint well
knew that no other letter had been sent by the Union
to the Respondent, and that the Respondent had sent
no letter to the Union, she persisted in asking Pfeffer
questions as to whether there were other letters or
communications. (Although this letter had been the
subject of exhaustive interrogation addressed to
Pfeffer on the first day of the hearing, under the
guise of direct examination under rule 43(b), it
became the subject of additional searching inter-
rogation addressed to him, also under the same
rule, in the' late afternoon of the last day of the
hearing.) Then, on the last day of the hearing, just
before counsel supporting the complaint rested, in
an effort to cast doubt upon the payroll records, the
witness was interrogated as to whether he remem-
bered a Mr. Lew from the National Labor Relations
Board coming to see him in connection with the
records. He answered, "No." The clear implication
from the question is that such a person did come to
see him for the purpose of examining Respondent's
payroll records and his denial, without more, would
have left the record pregnant with the suggestion
that he had lied. It was, however, stipulated later
that no such person ever came to the Respondent's
premises. -
Very much has been made of the, fact that there
were distinct differences between the contents of
Pfeffer's "affidavit," which had been mailed-to the
Board, and his testimony at the hearing. While Pfef-
fer's explanation does not result in legal exculpa-
tion, it is perfectly understandable. He testified that'
his lawyer prepared the affidavit, sent it to him, and
assured him that its contents were,all right, and for
that reason he signed it and returned it. This does
not seem strange to me, a lawyer' who engaged in
the private practice of law for many years, both in
New York and in Washington, and has observed
that it is quite the usual thing for litigants to assume
that if a paper has been prepared by their lawyer it
is appropriate for them to sign it as prepared.
Much is made also of the fact that while Pfeffer
declined for religious reasons to be sworn prior to
giving testimony and gave his testimony only under
affirmation, the affidavit, below his signature, bore
a jurat in the usual form, "Sworn to before me ......
etc., which jurat was signed by a notary public.
Pfeffer's testimony was that he had signed the
paper and returned it to his lawyer. While ordinari-
ly the appearance of a jurat on a piece of paper is
presumptive evidence that the deponent appeared
before the notary public and swore to its contents,
when there is affirmative testimony to the effect
that the signer of the paper did not so appear, the
presumption no longer exists..
In any event if, as is contended both by counsel
supporting the complaint and the Charging Party's
attorney, Pfeffer's testimony is wholly or substan-
tially false (to which I do not subscribe), this is en-
tirely immaterial as far as the ultimate outcome of
this case is concerned. Such a conclusion as to Pfef-
fer's testimony would mean only that all the wit-
nesses in this case gave false testimony or testimony
not worthy of belief.
To the extent that. any of Pfeffer's testimony
could be regarded as lending any support to the
charges against Respondent, such testimony is at
best negligible and subject to controversial in-
terpretation. Moreover, there is not sufficient sub-
stantial and credible evidence of probative value in
the rest of the case which, when put together with
any of Pfeffer's testimony, would be sufficient to
make out a case of violation in any of the respects
alleged in the complaint.
CONCLUSION
There is a complete lack of "reliable, probative
and substantial evidence" from which it is-possible
CHARM HANDBAGS, INC. 141
to form an opinion "upon the preponderance of the therein alleged and, as a consequence, the follow-
testimony taken" that the Respondent has engaged ing is my recommended
in or is engaging in any unfair labor practice. On
the other hand, "upon the preponderance of the
testimony taken," as I have set forth in my findings ORDER
of fact in the preceding portions of this decision, it
is my conclusion that the Respondent named in the It is hereby ordered that the complaint in this
complaint has not been shown to have engaged in proceeding be and the same hereby is dismissed in
or to be engaging in any unfair labor practice all respects.