Fotomat Corp.

National Labor Relations Board - Board Decisions

Apr 16, 1980

248 N.L.R.B. 1151 (N.L.R.B. 1980)

FOTOMAT CORPORATION 1151
Fotomat Corporation and Retail Clerks' Union
Local 1500 a/w United Food and Commercial
Workers International Union, AFL-CIO.' Case
29-CA-6865 2
April 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On January 21, 1980, Administrative Law Judge
James F. Morton issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,3
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Fotomat Corporation, New York City, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Add the following as paragraph l(f):
The name of the Charging Party, formerly Retail Clerks' Union
Local 1500 a/w Retail Clerks' International Association, AFL-CIO, is
amended to reflect the change resulting from the merging of Retail
Clerks International Union and Amalgamated Meatcutters and Butcher
Workmen of North America on June 7, 1979.
2 Case 29-RC-4371, involving alleged objections to an election con-
ducted by the Regional Director for Region 29 pursuant to an Agree-
ment for Consent Election, had been consolidated with the instant case
for hearing. On January 21. 1980, the Acting Executive Secretary of the
Board issued an order which, inter alia, severed and remanded that case
to the aforesaid Regional Director for further processing pursuant to the
consent election agreement, and thus, Case 29-RC-4371 is not before us
for consideration or decision.
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
4 In his recommended Order and notice the Administrative Law Judge
failed to provide that Respondent shall cease and desist from in an) like
or related manner interfering with, restraining, or coercing the employees
in the exercise of the rights guaranteed them in Section 7 of the Act. We
shall, therefore, modify said Order and notice accordingly.
248 NLRB No. 150
"(f) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing at which all sides had the op-
porunity to present evidence, the National Labor
Relations Board has found that we violated the Na-
tional Labor Relations Act and has ordered us to
mail this signed notice to you at your home. We
will carry out the Order of the Board and the
judgment of any court enforcing that Order.
WE WILL NOT ask you about any of your
activities or support for Retail Clerks' Union
Local 1500, or any other labor organization.
WE WILL NOT threaten to close any of our
stores or to deprive you of any benefits in
order to discourage you from joining or sup-
porting Retail Clerks' Union Local 1500.
WE WILL NOT warn our employees that we
will not make a good-faith effort to reach an
agreement with Local 1500 if they select it as
their collective bargaining representative or
that we will force Local 1500 to call a strike
so that we can hire replacements for employ-
ees who strike.
WE WILL NOT tell our employees that they
may be given sick leave benefits in order to
discourage them from voting for Local 1500.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
FOTOMAT CORPORATION
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: These
consolidated cases were heard by me in Brooklyn, New
York, on September 24 and 25, 1979. The issues in Case
29-CA-6865 are whether Fotomat Corporation (herein
called the Respondent), in violation of Section 8(a)(1) of
the National Labor Relations Act, as amended (herein
called the Act), interrogated, impliedly promised benefits
to, and threatened its employees to induce them not to
vote for the Retail Clerks' Union Local 1500, a/w Retail
Clerks International Association, AFL-CIO (herein
FOTOMAT CORPORATION
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Union), in the election scheduled in Case 29-
RC-4371. Objections were filed by the Union after it lost
that election. The report on objections directed that a
hearing be held to resolve issues, including credibility
issues, identical to those in Case 29-CA-6865 and also to
determine whether Respondent, in a campaign talk to its
employees, given by its vice president for its eastern re-
gional operations, materially misrepresented the amount
of the Union's initiation fees and, if so, whether the
Union had an adequate opportunity, before the election,
to communicate with the voters in order to respond to
those remarks.
I have considered the entire record in these cases, the
oral arguments made at the hearing, the briefs filed by
Respondent and by the Union, and the demeanor of the
witnesses at the hearing. Based on these considerations, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and the Union is a labor organization within the
meaning of Section 2(5) of the Act.'
II. THE ALLEGED UNFAIR LABOR PRACTICES
2
A.Background
Respondent is engaged in the retail processing of pho-
tographic film. The approximately 125 of its employees
who are involved in these cases work in the boroughs of
Manhattan, Queens, and Brooklyn in New York City.
They are classified as fotomates and are assigned to nu-
merous small booths, stores, kiosks, and stands located
throughout these boroughs.
On October 31, 1978 (all dates below are for 1978
unless otherwise noted), an Agreement for Consent Elec-
tion, providing for a mail ballot election among the Man-
hattan, Queens, and Brooklyn fotomates, was entered
into by Respondent and the Union in Case 29-RC-4371
and was approved by the Regional Director. The ballots
were mailed on November 17 and were counted on De-
cember 16. The Union lost 89 to 11.
The issues in the consolidated cases arise from the con-
flicting accounts of three meetings, each of which lasted
about 2 hours. The meetings took place on November 3,
14, and 16.
B.The November 3 Incident
The Union had scheduled a meeting of the Manhattan
fotomates for November 2 but only one employee,
Robert D'Alessandro, attended. On the following day,
his supervisor, Roger Kasa, visited him while at work in
a kiosk on W. 14th Street in Manhattan. They talked for
about 2 hours. No one else was present during this dis-
I These findings are based on the allegations in the complaint which
are admitted by Respondent in its answer.
2 Although the Union's Objection 3 in Case 29-RC-4371 is not alleged
as an unfair labor practice, evidence thereon is set out in this section as it
is interwined with the testimony bearing on the alleged unfair labor prac-
tices.
cussion, except for the brief appearance of an occasional
customer.
D'Alessandro gave the following account of their con-
versation then. Kasa and he discussed business matters
for the first half hour. D'Alessandro then asked Kasa if
there was anything else Kasa wanted to talk about. Kasa
replied that Respondent wanted him to go around and to
talk with the employees about the Union and the elec-
tion. Kasa stated that the Union was having meetings3
and then said to D'Alessandro, "You were at the Man-
hattan meeting, right." D'Alessandro replied that, as far
as he knew, there was no meeting. He based his answer
on the fact that he was the only fotomate who had come
to the meeting, scheduled for the previous evening. Kasa
thereupon said that, if the Union won the election, Re-
spondent and the Union would get together to see if they
could reach an agreement but he personally felt that the
Union's promises, such as the demand for scheduled
wage increases, were so outrageous that the end result
would be that they would not be able to reach an agree-
ment, that the Union would then force the employees
out on strike, and that, as the employees were so un-
skilled, they would be easy to replace. Kasa then talked
about the Teamsters as a union that controlled the truck-
ing industry and about "another union" that was "really
screwing" its members. D'Alessandro and Kasa briefly
debated as to "good" and "bad" unions.
D'Alessandro continued his narrative account. Kasa
asked what D'Alessandro thought would make the em-
ployees vote for the Union; D'Alessandro replied that
they wanted better benefits, especially scheduled wage
increases and sick pay. Kasa said that he was thinking of
bringing up the subject of sick pay at the next manage-
ment meeting but, as to the matter of scheduled wage in-
creases, he said that the Union can promise them but
cannot guarantee them. D'Alessandro mentioned that su-
permarket contracts provide for scheduled wage in-
creases and he and Kasa discussed that point. Kasa then
expressed the view that the minimum wage law provided
for a sort of scheduled wage increase and said that Re-
spondent needed money to expand. D'Alessandro com-
mented that such moneys should not come out of the
wage section of Respondent's budget. They then re-
turned to discussing what would happen if the Union
won the election. Kasa said that the fotomates would be
replaced if an agreement could not be reached and that
"the agreement could drag on for 1, 2 years." When
D'Alessandro stated that there must be some alternative
to a strike, Kasa said that Respondent had been seriously
considering closing all of its Manhattan locations because
union deal generally with full-time employees, that Man-
hattan is the only area which Kasa knew of where Re-
spondent had full-time employees, and that Manhattan
was just too much trouble. Kasa observed that compa-
nies exist to make profits and that Respondent would
gladly replace the fotomates with machines, if it had the
chance. D'Alessandro ended the discussion by respond-
ing that that was why the employees wanted to be orga-
nized.
I On October 19, the Union had mailed a leaflet announcing the dates
times, and places of its meetings.
FOTOMAT CORPORATION 1153
Kasa's version of the November 3 meeting is as fol-
lows. He visited D'Alessandro to talk about how things
were at his store; he testified that, as there was the
Union "in the area," he tried to make it a point to see if
the employees had any questions he might answer. At
one point in his testimony, Kasa said that he did not visit
D'Alessandro particularly to discuss the Union with him
because he already knew of D'Alessandro's feelings
about the Union and that there would not be much point
to discussing it. Later in his testimony, Kasa said that he
had a feeling that D'Alessandro wanted the Union and
that he, Kasa, found this out in the course of his lengthy
discussion with D'Alessandro. According to Kasa, that
discussion was precipitated by his asking D'Alessandro if
he wanted "to discuss the latest union activity." When
asked by Respondent's counsel as to what he said to
D'Alessandro as to what might happen if the Union won
the election, Kasa replied that he told D'Alessandro that
it would be Respondent's responsibility to bargain in
good faith but,that he could not speculate on the out-
come of the negotiations. Kasa denied saying anything
about closing the Manhattan stores, and commented par-
enthetically that those stores are the most profitable. He
also said that all of the Manhattan fotomates are em-
ployed full time. Kasa further testified that he asked
D'Alessandro if he would like to discuss the Union and
also asked what was bothering him. When D'Alessandro
said that Respondent should extend sick leave to its em-
ployees, Kasa testified that he told D'Alessandro that
that subject was "being kicked around, so to speak, by
management" but that it was out of his control. He also
testified that he could not recall specifically the details of
his conversation with D'Alessandro and that his recollec-
tion was that the discussion was mostly based on gener-
alities as to what the goal of a business should be and
that his views on this matter and D'Alessandro's views
were very contradictory.
As noted above, there were no independent witnesses
to the November 3 discussion between D'Alessandro and
Kasa. D'Alessandro impressed me as one who was trying
to recall and to relate, as carefully as he could, the full
conversation he had with Kasa. Respondent waived
cross-examination of him. Kasa gave a very limited ac-
count of the conversation. On cross-examination, he ad-
mitted he initiated the discussion of the Union by asking
D'Alessandro whether he wanted to talk about the latest
activity of the Union. In an oblique manner, this tends to
corroborate D'Alessandro's statement that the discussion
of the Union began when Kasa asked him if he had at-
tended the union meeting, held the previous night. I also
note that Kasa's testimony, as to when he first was aware
that D'Alessandro supported the Union, was confused, if
not contradictory. Based on my observation of the de-
meanor of these witnesses and the foregoing analysis of
their testimony, I find that D'Alessandro's account is
more persuasive and I credit it.
C.The November 14 Meeting
D'Alessandro gave a detailed, narrative account of this
meeting, as follows. On November 10, he received a
letter from Respondent which stated that a mandatory
meeting4 for all Manhattan fotomates would be held by
Respondent on November 14 at a Holiday Inn located in
midtown Manhattan. The meeting took place in a private
room, was conducted by Joseph C. Kinkead, Jr., Re-
spondent's vice president in charge of its eastern regional
operations, and it was attended by Manhattan supervi-
sory personnel and by about 40 Manhattan fotomates.
Kinkead welcomed those in attendance, said he would
answer any questions they had, and spent about 5 min-
utes explaining how a mail ballot should be marked and
returned. Kinkead then discussed, one by one, 11 ques-
tions set out by the Union in a leaflet it had distributed
to the voters. After Kinkead commented on the Union's
demand for scheduled wage increases, D'Alessandro
raised his hand and stated that he had copies of union
contracts which provided for scheduled wage increases.
Kinkead said that such increases are negotiable and that
the Union could not guarantee them. In responding to
that part of the Union's leaflet which questioned whether
Respondent guaranteed sick pay, Kinkead said that Re-
spondent was thinking about it. After discussing all 11 of
the Union's points, Kinkead asked if anyone knew the
amount of the Union's initiation fees. One of the foto-
mates said she had been told by the Union's organizer,
Leonard Salvo, that it was $250 and that "she had it on
tape to prove it." Kinkead said that the fotomates do not
have to pay such fees. (The parties stipulated at the hear-
ing that the Union had waived the payment of initiation
fees by the fotomates and that the fotomates were aware
of the waiver before November 14. It is also noted that
the uncontroverted direct evidence at the hearing estab-
lishes that the amount of the Union's initiation fee for a
part-time employee is $50; for a full-time employee, $75.)
Kinkead further said it would not be fair for fotomates
who became employed after the election to pay such
high initiation fees; i.e., $250. Kinkead then discussed va-
cation pay, medical insurance, profit sharing, and other
benefits available to the fotomates. Then Kinkead talked
of what would happen if the Union won the election. He
said that Respondent would try to reach an agreement
and that the Union could not guarantee its promises.
Kinkead said that there never has been a contract be-
tween any union and Respondent although unions have
won three elections "against Respondent," one of which
involved the fotomates in its Cleveland stores and which
took place over a year ago. Kinkead then said that, if
there is no agreement reached, the Union would prob-
ably take the fotomates out on strike and that, since they
were unskilled, they would be replaced. Kinkead said it
could take a long time for an agreement to be reached.
He also stated that fotomates who had been replaced
while on strike would have priority in getting jobs when
there were openings. Kinkead asked the fotomates to
look at their benefits and to consider the Union's prom-
ises and the fact that, in negotiations, everything is nego-
tiable. Kinkead then asked them according to D'Alessan-
dro's quote, "Are you willing to endanger your present
benefits?" Kinkead stated that, during negotiations, ev-
' The fotomates who attended were paid Nothing was offered at the
hearing to indicate what steps, if any, were taken to compel attendace. In
any event, there is no contention that the fotomates were unlawfully
threatened to insure their attendance
FOTOMAT CORPORATION
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erything would be "left hanging," that Respondent and
the Union would be running the whole show and that
the employees would have no say in the outcome.
D'Alessandro raised his hand and held up a copy of the
Union's constitution while he stated that the constitution
provided for a strike vote. Kinkead ignored the remark.
Kinkead said that unions, like companies, exist to make
profits and he named a supermarket chain with which
the Union had a contract and which went bankrupt. At
the conclusion of the meeting, D'Alessandro asked Kin-
kead where he got the figure $250 as the amount of the
Union's initiation fee and Kinkead said that one of the
fotomates present had mentioned it. The fotomate, who
earlier had answered Kinkead's question as to whether
anyone knew the amount, said that she had the statement
of the Union's organizer on tape and that another foto-
mate who was present also had heard the organizer men-
tion the $250 figure. The meeting then ended.
Respondent offered the testimony of Kinkead, Kasa,
and another supervisor, Richard Laskowski, to rebut
D'Alessandro's account. Kinkead testified as follows. He
talked about how much the fotomates would have to pay
the Union and a girl in the back of the room said the ini-
tiation fee was $250. He commented that he did not
know what the amount was. He told the employees that,
if Respondent lost the election, it was required by law to
bargain. He denied making any statement that Respon-
dent would not bargain with the Union if it won. He
could not recall any specific statement or question at the
meeting which related to the subject of bargaining with
the Union. On cross-examination, he said that another fo-
tomate at the November 14 meeting had said that the
Union's initiation fee was $50 and that he did not know
if that figure or the $250 figure was correct. He also said
that, in the past year, he gave about five campaign
speeches, including three given to the fotomates during
the Union's campaign. He denied discussing the loss of
benefits if employees joined the Union and stated he told
them that, if they called an economic strike, Respondent
was allowed by law to replace them. He defined an eco-
nomic strike for the fotomates as one over pay, benefits,
and the like.
Roger Kasa's testimony as to the events of the No-
vember 14 meeting is as follows. A fotomate who was
present, a girl, said that the Union's initiation fee was
$250. Kinkead said that that was possible but he had no
idea what it was. Kinkead suggested that the fotomates
go to the Union to find out and noted that, while it did
not directly affect them as the Union had waived the ini-
tiation fees for the fotomates, it was something they
should consider if they had friends who might want to
work for Respondent.
Richard Laskowski testified for Respondent as follows.
He stated on direct examination that he is employed by
Respondent as a fotomate, that his job is the same as
D'Alessandro's and that he has never been a supervisor
for Respondent. On cross-examination, he said that he
has been a supervisor for Respondent since March 1979.
With respect to the November 14 meeting, Laskowski
testified that Kinkead said nothing about what would
happen if the Union won the election; on cross-examina-
tion, he testified that Kinkead said that, if the Union
won, Respondent would have to negotiate. Laskowski
further testified that a fotomate mentioned a figure of
$250 as the amount of the Union's initiation fee, that a
man next to her "agreed" with it, and that Kinkead was
not aware of the amount.
I credit D'Alessandro's account. Here again, he im-
pressed me as one who was trying to recall accurately as
many of the details of the meeting as he could. He re-
called Kinkead's remark pertaining to the reinstatement
rights of economic strikers. Kinkead's account, on the
other hand, was summary and unpersuasive. I note also
that Kasa offered no testimony to corroborate Kinkead's
denial that he discussed the prospects of the fotomates'
losing their benefits if the Union won the election. I give
no weight to Laskowski's testimony in view of his confu-
sion as to whether or not he is a supervisor and his
almost total lack of recall of the events at the meeting.
Kasa's account is also not credible. It was far too sum-
mary and vague. I have already rejected his version of
the November 3 meeting and nothing he said about the
November 14 meeting would warrant reconsideration of
that resolution.
D. The November 16 Meeting
The General Counsel called Dorina Rosa to testify as
to this meeting. Her account follows. The meeting was
held at the Adria Motel in Queens on November 16 and
was attended by about 40 fotomates. 5 Kinkead began the
meeting by saying that the meeting was about the Union
but that matter was not as important as the actual voting
process. Rosa interrupted him to ask why he took the
trouble to call a meeting about the Union if it was not
important. She characterized his answer as totally irrele-
vant. Kinkead then discussed the voting procedures, after
which he said that the Union's initiation fee was $250. A
fotomate present, a young lady, interrupted and said that
the fee was only $50. Kinkead said that he heard it was
$250 but, as he had not read the Union's bylaws, he did
not really know the amount of the fee. The same young
lady said she had a copy of the Union's constitution and
bylaws with her. Kinkead ignored her and used the $250
figure as the amount of the Union's initiation fee several
times thereafter. Kinkead discussed the benefits available
to the fotomates and told them that, if the Union won,
they could not get anything from Respondent until there
was collective bargaining and, until then, the fotomates
would have no benefits. Kinkead said that, in the collec-
tive-bargaining process, Respondent does not have to
bargain, that the Government will not allow Respondent
to go out of business if the fotomates went on strike but
that, instead, Respondent would hire other employees to
keep its stores open. Rosa became very angry; at this
point, she walked out of the meeting.
Kinkead testified that, at the Queens meeting, he used
only the $250 figure as the amount of the Union's initi-
ation fee although he said he was told, at the Manhattan
meeting 2 days before, that the correct figure was $50.
Kinkead testified he followed the same procedures that
I D'Alessandro testified he was physically prevented from attending
that meeting by Respondent's manager, Roy Campa. That testimony was
offered only to verify the date of the meeting and not for any other
reason.
FOTOMAT CORPORATION 1155
were followed at the Manhattan meeting but that he did
not necessarily get the same questions or make the same
responses.
Respondent also called a fotomate, Kevin Kearns, as a
witness to the events of the Queens meeting. He testified,
on direct examination, that Kinkead stated that he heard
the Union's initiation fee was $250, that a young girl ob-
jected and said it was only $50, and that Kinkead then
said that he did not know what the amount was. On
cross-examination, he testified that he signed an affidavit
shortly after the meeting and that the affidavit related
that he did not know what figure Kinkead used. He fur-
ther testified that he since remembered that Kinkead
used the $250 figure. Kearns testified, when asked as to
whether and what Kinkead said as to what would
happen if the Union won that election, that Kinkead said
that Respondent would then be forced to bargain but
would not be forced to give the fotomates more money
or to reach an agreement on the issues the Union
wanted.
Rosa's account of the meeting of the Queens foto-
mates, from its start and until just before she left it in
anger, was vivid, detailed, and credible. Her account that
another fotomate challenged Kinkead's use of the $250
figure as the amount of the Union's initiation fee was
corroborated by Kearns' testimony. Respondent elicited
no testimony from Kearns to corroborate Kinkead's
statement that he followed the format of the November
14 meeting, i.e., particularly that he never told the foto-
mates that they would lose their benefits if the Union
won the election. Based on her demeanor, I credit virtu-
ally the whole of her account. However, I do not accept
as accurate her recollection that Kinkead told the
Queens fotomates that Respondent does not have to bar-
gain with the Union if it wins. She herself admitted that
she was very angry at this point in the meeting and it is
apparent that her "paraphrase," as she termed it, of what
was said at that point, was confused. Kearns' testimony,
as to what Kinkead said respecting Respondent's duty to
bargain, was clear. I am satisfied that he gave objective
responses to the questions put to him and I credit those.
The fact that there may be a minor conflict between his
affidavit and his truthful testimony at the hearing, con-
cerning the figure used by Kinkead for the initiation fees,
does not warrant rejection of his testimony in toto.
E. Summary of Findings
Based on the credibility resolutions made above, I find
that, on November 3, Respondent's supervisor, Roger
Kasa, asked fotomate Robert D'Alessandro whether he
had attended the meeting the Union had scheduled for
the previous night, indicated to him that a strike was in-
evitable if the Union won the election, asked what would
make the employees vote for the Union, suggested that
sick pay may be made available to employees to remove
it as a reason for supporting the Union, threatened that
Respondent would drag the negotiations on for years if
the Union won and that it would force a strike in order
to replace the employees who supported the Union, and
threatened that Respondent would close its Manhattan
stores because of the Union's interest in representing the
full-time employees assigned to those stores.
I further find that, on November 14, the Respondent's
vice president, Joseph C. Kinkead, Jr., (a) informed the
Manhattan fotomates that, while Respondent would try
to reach an agreement with the Union if it won the elec-
tion, no union ever got a contract from Respondent, al-
though three won elections against Respondent; (b) told
the fotomates that it could take a long time for an agree-
ment to be reached and that the Union would probably
take the fotomates out on strike which would result in
their being replaced; (c) asked them if they were willing
to endanger their present benefits by supporting the
Union; and (d) told them that everything would be "left
hanging" during negotiations.
I further find that, at the November 16 meeting of the
Queens fotomates, Kinkead told them that, if the Union
won the election, they would not receive any of their
normal benefits until collective bargaining takes place
but he never said at that meeting that Respondent did
not have to bargain with the Union if it won.
CONCLUSIONS OF LAW
I. Respondent, in violation of Section 8(a)( ) of the
Act, interfered with, restrained, and coerced its employ-
ees in the exercise of the rights given them under Section
7 of the Act by Kasa's interrogation of D'Alessandro on
November 3 about his union activities and as to why the
fotomates wanted the Union, by Kasa's offer then to rec-
ommend to Respondent's higher management officials
that sick pay benefits be provided to fotomates in order
to discourage their support for the Union, by Kasa's
statement on that same day that Respondent would drag
negotiations on for a long time and that the Union would
thus be forced to call a strike which would result in the
replacement of the strikers, and by Kasa's further threat
that Respondent would close its Manhattan stores if the
Union won the election. Respondent similarly impinged
on the Section 7 rights of its employees when Vice
President Kinkead asked the fotomates on November 14
if they were willing to endanger their present benefits by
supporting the Union. There remains for consideration
the import of Kinkead's remarks on November 14 and 16
respecting the position Respondent would take as to col-
lective bargaining if the Union won the election. On No-
vember 14, according to the credited testimony, Kinkead
made it clear that it would take a long time, and likely a
strike too, before there could be an agreement, that the
strikers would then be replaced, and that no union ever
succeeded in getting a contract from Respondent. Those
remarks, in the context of his having asked the fotomates
whether they would endanger their present benefits by
supporting the Union, establish that he was effectively
telling the employees that Respondent did not intend to
make a good-faith effort to reach an agreement with the
Union if it won. Kinkead's statement that, if the Union
won, Respondent and the Union would have to get to-
gether to try to reach an agreement carries little weight,
not enough to affect the clear meaning of his overall re-
marks. 6 Those remarks are violative of Section 8(a)(1).
6 In Visador Co., 245 NLRB No. 71 (1979), the respondent there violat-
ed Sec. 8(a)(l) by threatening plant closure and by warning that selection
of the union there would result in lower wages and working conditions.
Continued
FOTOMAT CORPORATION 5
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As found above, Kinkead told the Queens fotomates
on November 16 that, if the Union won the election,
they would not receive their benefits until there was col-
lective bargaining. The language he used does not indi-
cate that a permanent loss of benefits was threatened.
Nevertheless, it is obvious that Kinkead told those foto-
mates that, as soon as a majority voted for the Union
their benefits would stop. His conduct thus infringed
upon the Section 7 rights of Respondent's employees and
constitutes a violation of Section 8(a)(1).
2. Respondent did not tell the Queens fotomates on
November 16 that it would not bargain with the Union if
it won the election and thus the 8(a)(1) allegation thereof
in the complaint is dismissed.
3. The unfair labor practices set out in paragraph 1,
above, are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices proscribed by the Act,
I recommend that it be required to cease and desist from
such conduct and to take the affirmative action set out
below, which is necessary to effectuate the policies of
the Act. The notice to employees, provided for below,
should be sent by Respondent by mail to each of the fo-
tomates it employs in the boroughs of Manhattan,
Queens, and Brooklyn at their respective home address-
es.
II. THE REPRESENTATION PROCEEDING
A. Objections 2 and 47
Pursuant to the Agreement for Consent Election ap-
proved in Case 29-RC-437 1, the Regional Director
issued a report on objections in which he directed that a
hearing be held to resolve substantial and material factual
issues, including issues of credibility, which were raised
as a result of the administrative investigation conducted
into the Union's Objections 2 and 4. Those issues are
identical to those which existed in Case 29-CA-6865 and
had been consolidated with them for the purposes of
hearing, ruling, and decision. In view of my findings of
fact and conclusions of law, set out above, in Case 29-
CA-6865, I find that Fotomat Corporation interfered
with the right of its employees, employed as fotomates in
Manhattan, Brooklyn, and Queens in New York City, to
select freely whether or not they wished to be represent-
ed by the Union. Accordingly, these objections should
be sustained, the results of the election held last year be
set aside, and a new election held when, in the judgment
of the Regional Director, the employees are free to make
However, the latter statement, which Chairman Fanning would find to
be tantamount to a statement that it was futile for the employees to select
the union, was held by the majority insufficient to establish that the em-
ployer there would not bargain with the union. The majority view on
this point seems to be based on the employer's assertions, elsewhere in
the speech, that it would pay wages and benefits competitive with those
in the area. In the instant case, Kinkead's remarks contained few subtle-
ties and there are no nuances of language to be measured.
I Objection I had been withdrawn. Objection 3 is dismissed separately.
an uncoerced choice as to whether or not they wish to
be represented by Retail Clerks' Union Local 1500.
B. Objection 3
It was alleged in this objection that Fotomat Corpora-
tion's vice president, Kinkead, misrepresented to the eli-
gible voters the amount of the Union's initiation fee and
that he did so at a time when the Union could not make
an effective response. A hearing was directed to resolve
the factual issues, including credibility issues, disclosed as
a result of the administrative investigation into this ob-
jection.
The relevant facts are brief. On November 14, Kin-
kead asked the Manhattan fotomates what the initiation
fee was and a fotomate said it amounted to $250 when in
reality it was $50 for part-time employees and $75 for
full-time employees. Kinkead stated that he did not know
the correct amount but he said then that the employees
should not vote for the Union when, among other things,
its initiation fee was $250. The Union's representative
was made aware of these comments on November 14.
On November 15, the Union sent a campaign leaflet to
the voters reminding them inter alia, that the Union had
waived initiation fees for them. The Union did not make
any reference in that leaflet to Kinkead's comments at
the meeting of the Manhattan fotomates.
On November 16, Kinkead again used the $250 figure
in seeking to dissuade the Queens fotomates from voting
for the Union, saying that they should consider whether
anyone, hired as a fotomate after the election and if the
Union won it, should be required to pay $250 as an initi-
ation fee. Kinkead also stated at the November 16 meet-
ing that he got the $250 figure from a fotomate on No-
vember 14 and that he did not know whether that figure
or a figure of $50 was correct.
I find that Kinkead's use of the $250 figure given him
by a fotomate during the November 14 meeting was not
a misrepresentation of fact as he made it clear that he did
not know if the figure was correct. Even if his state-
ments on November 14 and 16 on the amount of the
Union's initiation fee could be considered misrepresenta-
tions, I find that they would not have been material mis-
representations as the Union had waived the payment of
its initiation fee for all the voters. It is most unlikely that
the use of the $250 figure had any significant impact by
reason of the possible concern of the fotomates for em-
ployees hired after the election and also where that con-
cern would first have to be based on the Union's win-
ning the election. In any event, even were the statements
material misrepresentations, it is obvious that the Union
was aware of them on November 14 and could have
countered them in its November 15 campaign leaflet. I
thus conclude that this objection does not raise substan-
tial or material issues affecting the results of the election
and it should be overruled.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
FOTOMAT CORPORATION 1157
ORDER8
The Respondent, Fotomat Corporation, New York,
New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees with respect
to their activities on behalf of, their sympathy for, or the
reasons they support Retail Clerks' Union Local 1500, a/
w Retail Clerks International Association, AFL-CIO, or
any other labor organization.
(b) Threatening to close any of its locations to discour-
age its employees from joining or supporting Retail
Clerks' Union Local 1500, or any other labor organiza-
tion.
(c) Threatening its employees with loss of benefits to
discourage them from voting for Retail Clerks' Union
Local 1500, or any other labor organization.
(d) Telling its employees in effect that it will not make
a good-faith effort to reach agreement with a labor orga-
nization selected by them or that it will force any such
labor organization to call a strike which would result in
the replacement of the striking employees.
s In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(e) Telling its employees that they might be given sick
leave benefits or other benefits, in order to discourage
them from voting for Retail Clerks' Local 1500, or any
other labor organization.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Mail a copy of the attached notice marked "Ap-
pendix" 9 to each of its employees employed as fotomates
in the boroughs of Manhattan, Queens, and Brooklyn in
the city of New York. Each such copy shall be signed
by an authorized representative of the Respondent and
shall be mailed to the home address of each such em-
ployee. Copies of the attached notice shall be on forms
provided by the Board's Regional Director for Region
29, Brooklyn, New York.
(b) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of this Order, what steps it
has taken to comply with this Order.
IT IS FURTHER RECOMMENDED that Case 29-RC-4371
be severed from Case 29-CA-6865 and returned to the
Regional Director for Region 29 for disposition in accor-
dance with the provisions of the Agreement for Consent
Election he approved.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
FOTOMAT CORPORATION