Snap Out Binding & Folding, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 316 (N.L.R.B. 1967)

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Snap Out Binding & Folding, Inc. and Automated
Folding & Binding Co . and Bookbinders and Bin-
dery Women's Union, Local No. 63, 63-A, Interna-
tional Brotherhood of Bookbinders , AFL-CIO.
Case 21-CA-7247
request that employee Hosey permit Respondents'
attorney to be present when Hosey gave a state-
ment to a Board agent. This precise issue was
neither alleged nor litigated.
June 29, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On March 30, 1967, Trial Examiner David F.
Doyle issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in unfair labor practices as 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, with a supporting brief, the Charging
Party filed exceptions, and the Respondent filed an
answering brief and a motion to strike various parts
of 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, the
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner. I
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.
MEMBER BROWN, dissenting in part:
I would find that, by distributing the January 28
"flyer," Respondents threatened a reduction of
hours and wages in the event of a union victory in
the election conducted that day and that Respond-
ents thereby violated Section 8(a)(1) of the Act. I
would accordingly issue a remedial order ap-
propriate to this case.
In affirming that portion of the Trial Examiner's
Decision described as "The affidavit incidents," I
consider it important to note that the Board does
not reach or pass on the lawfulness of Respondents'
In determining the employees to be included in the bargaining unit, for
the purpose of ascertaining the Union's majority status, the Trial Ex-
aminer concluded that Robert Aviles was a nonsupervisory employee and
therefore a member of the unit. In an earlier representation proceeding in-
volving this same unit, the Board had decided that Aviles was a supervisor
and, accordingly, not entitled to vote in the election. 160 NLRB 161.
Whether or not Aviles is now treated as a member of the unit, the General
Counsel would in either event be required to prove that the Union
represented 21'of the unit employees at the time of its demand for recogni-
tion, in order to prevail under the present 8(a)(5) complaint We therefore
find it unnecessary to pass on the status of Aviles or the propriety of
relitigating that question in this proceeding.
Similarly, there is no need to cinsider the Trial Examiner's disposition
of certain of the authorization cards offered by the General Counsel to
establish the Union's majority representation at the time of the demand
for recognition. Even assuming that the Union enjoyed majority status,
the other circumstances in the case, as found by the Trial Examiner, fall
short of establishing that Respondent's refusal to extend recognition was
motivated by an unlawful intention to forestall collective bargaining or
evade bargaining obligations. Aaron Brothers Company of California, 158
NLRB 1077; cf. H. & H. Plastics Mfg., Co., 158 NLRB 1395.
We note three factual errors in the Trial Examiner's Decision. The first
occurs in the penultimate sentence of the second paragraph of the section
entitled "a. The meeting of January 10." Margolin testified that he stated
at this meeting that employee Fisher, of all the girls, could easily qualify as
a,lourneywoman. He did not state, as found by the Trial Examiner, that he
did not think that any of the other girls could qualify. The other errors are
found in the sixth-from-last paragraph of his Concluding Findings. A total
of 21 employees, rather than the 20 inadvertently mentioned by the Trial
Examiner, signed cards for the Union, and employee Hosey, as well as
employee Medina, testified that the president of the Respondents had ut-
tered a threat about closing the plant. The Trial Examiner had earlier in
his Decision discussed and discredited Hosey's testimony None of these
errors mat°rially affects the findings and conclusions drawn by the Trial
Examiner and affirmed in this Decision and Order. In view of this af-
firmance, it is unnecessary to pass on Respondents' motion to strike por-
tions of General Counsel's exceptions and brief.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F. DoYLE, Trial Examiner: This proceeding,
with all parties represented by counsel, was heard before
me in Los Angeles, California, on November 15-21,
1966, on complaint of the General Counsel and answer of
the Respondents. The issues submitted for decision were
whether Respondents had violated Section 8(a)(1) and (5)
of the Act by certain conduct, more particularly
described hereinafter. i
1 The charge herein was filed by George E Smith , business representa-
tive, on June 22 , 1966 , and the complaint herein was issued by the Re-
gional Director, Region 21 (Los Angeles , California), on September 8,
1966.
In this-Decision , Bookbinders and Bindery Women's Union , Local No.
63, 63-A, International Brotherhood of Bookbinders , AFL-CIO, is
referred to as the Union , Snap Out Binding & Folding , Inc., and Auto-
mated Folding & Binding Co, which are found herein to be one em-
ployer, is referred to as the Company , the General Counsel of the Board
and his representative at the hearing , as the General Counsel, the Na-
tional Labor Relations Board , as the Board ; and the National Labor Rela-
tions Act , as amended , as the Act.
All dates in this report are in the year 1966 unless noted otherwise.
166 NLRB No. 21
SNAP OUT BINDING & FOLDING INC.
At the hearing all parties were represented by counsel,
who were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, to introduce
evidence bearing on the issues, to argue the issues orally
upon the record, and to file briefs and proposed findings.
The General Counsel and the Company have filed briefs
which have been carefully considered.
Upon the entire record of the case and upon my obser-
vation of the witnesses. I make the following-
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE COMPANY
It is admitted in the pleadings that Snap Out Binding &
Folding, Inc., is a California corporation with its principal
office and place of business at 44-45 South Santa Fe
Avenue, in Los Angeles, California, where it is engaged
in trade graphic finishing operations for customers in the
printing business.
Automated Folding & Binding Co. is a California cor-
poration with its principal office and place of business at
1361 East 16th Street, Los Angeles, California, where it
also is engaged in trade graphic finishing operations for
customers in the printing business.
Max Margolin is the president of both entities and
owns a majority of the stock in each. Margolin also has
overall control of all phases of the operations of both cor-
porations including finances, sales, and production, and
he is responsible for the labor relations policies of both
corporations.
The two corporations, in the course and conduct of
their business operations, annually sell and perform ser-
vices valued in excess of $50,000 for Rapid Blue Print
Company. The latter-named company, in the course and
conduct of its business as a trade printing establishment,
annually sells and causes to be shipped goods valued in
excess of $50,000 directly to commercial customers
located outside the State of California.
The pleadings establish, in addition to the above facts,
that the two corporations together form one integrated
business enterprise with common labor relations policies
and constitute a single employer for the purposes of the
Act, which is an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At the hearing the parties stipulated that the Union is
and at all times material herein had been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
The complaint, in substance, alleges that the Company
refused to recognize and bargain with the Union as the
exclusive bargaining representative of the Company's
employees in an appropriate unit after the Union made
due demand for such bargaining on January 20, upon
which date the Union represented a majority of the Com-
pany's employees in the said appropriate unit. The com-
plaint also alleges that the Company coerced employees
in the exercise of their rights guaranteed under Section 7
of the Act by certain statements made to employees by
317
company officials and that by this conduct the Company
violated Section 8(a)(1) and (5) of the Act.
The answer of the Company admitted that the two cor-
porations constituted a single employer which is engaged
in commerce within the meaning of the Act. At the hear-
ing, counsel for the parties stipulated that the unit set
forth in the complaint was appropriate for collective bar-
gaining.
At the hearing, the Company contended that the Union
did not at any time material to the controversy represent
a majority of the Company's employees since at least six
of the Union's authorization cards were invalid because
they had been obtained through misrepresentations or
coercion or both, and that the showing of authorization
cards at the hearing did not establish that the Union pos-
sessed 4 majority in the unit at the time of its demand for
recognition and bargaining.
The Company also claimed that the Union did not
represent a majority of the Company's employees, re-
gardless of how the authorization cards were obtained,
since two of the cards were obtained after the demand
and refusal of recognition. Also, that all the authorization
cards were obtained in an atmosphere of union coercion
to the extent that they could not be the basis for a bargain-
ing order.
The Company also denied that at any time it interfered
with, restrained, or coerced its employees in the exercise
of their rights under Section 7 of the Act.
The Representation Proceeding
The present proceeding is connected with a representa-
tion proceeding involving the parties which was docketed
as Case 21-RC-9894. In the representation proceeding,
the Union filed a petition for certification of representa-
tives with the Regional Office of the Board (Region 21,
Los Angeles, California) on January 7, 1966. On January
17, the parties, with the approval of the Regional
Director, executed an agreement for Stipulation for Cer-
tification Upon a Consent Election. In this agreement,
the appropriate unit was described in the same language
as set forth in the complaint. The description is as fol-
lows:
All bindery employees, shipping and receiving em-
ployees, and delivery drivers at Employer's Los Angeles,
California, plants, excluding office clerical employees,
professional employees, guards and supervisors as
defined in the Act.
On January 28, the Regional Director conducted a
secret-ballot election among the employees of the Com-
pany in the appropriate unit. On March 8, the ballots
were opened and counted with the following tally:
Approximate number of eligible voters 45
Void ballots 1
Votes cast for petitioner 15
Votes against participating
labor organization 15
Valid votes counted 30
Challenged ballots 9
Valid votes counted plus
challenged ballots 39
On March 15, the Union filed timely objections to the
conduct of the election and, thereafter, the Regional
Director initiated an investigation on the objections and
challenged ballots. The ballots of Oswaldo Fernandez,
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sr., Ervin!, Frederick, and Jo Ann Gutierrez were chal-
lenged by! the Board agent because their names did not
appear on the eligibility list submitted by the Company.
The Union challenged Robert C. Aviles, Oswaldo Fer-
nandez, Jr., and Isabell Fisher on the ground that those
employee were supervisors.
The Regional Director, in his report on challenged bal-
lots and objections to election, found that Robert C.
Aviles, Oswaldo Fernandez, Sr., and Isabell Fisher were
supervisors under the Act and were not eligible to par-
ticipate in the election. Upon appeal, the Board approved
this findin .2 The Board also found that Oswaldo Fernan-
dez, Jr., was an eligible voter. The Board also found that
certain of he objections of the election were well founded
and set aside the election. Thereafter, the Union
withdrew its petition and filed the instant charge. Also
prior tote opening of the hearing herein, another unfair
labor pra tice proceeding had established that Ervin
Frederick, was an eligible voter.
The Issu as to the Eligibility of Aviles, Fernandez, Sr.,
and Fisher
In this proceeding , counsel for the Company stated that
he desired to introduce evidence which would show that
the three named employees were not supervisors but
rank-and-rile employees . He also pointed out that the
Board 's d cision as to the three employees involved was
based on affidavits and not on the testimony of persons
under oat who were subject to cross-examination. After
some discussion of this subject , the General Counsel
stated that he was prepared to offer proof as to the super-
visory capacity of the three individuals , if I deemed it
necessaryL I then stated that since the proof on the issue
was available to both sides and the witnesses were availa-
ble, I thought the safer course of action would be to take
testimony on this point, and thus afford the Company a
hearing o the issue . Thereafter , counsel for the General
Counsel and counsel for the Company both presented
evidence and cross-examined the witnesses on this issue.
At the hearing , counsel for the parties agreed that 40
named employees were properly included in the ap-
propriate unit . 3 This isolated the issue of the supervisory
status of ernandez, Sr., Aviles , and Fisher.
As noted previously , the Regional Director , in his in-
vestigatio , found that the three employees were super-
visors within the meaning of the Act, and the Board, in its
Decision and Order , supra, affirmed the Regional
Director's findings . Upon the evidence presented in this
proceeding , I find that Fernandez , Sr., and Fisher are
each supervisors within the meaning of the Act. For
reasons later set forth I find that Aviles is a rank-and-file
employee.
Oswaldo Fernandez, Sr.
The principal witnesses as to the supervisory status of
Fernandes, Sr., were Fernandez, Sr., himself, and Max
Margolin,; the owner, and immediate supervisor of all ac-
tivities of the Company.
In the !course of his direct examination, Fernandez
testified that he was a "working foreman" and that he did
not have authority to hire, fire, or discipline employees.
He said that he performed the same functions as other
operators in the folding department with the exception
that he sets up some machines for employees with less ex-
perience. He also stated that on one occasion he had
recommended that Jose Medina, Jr., be given a raise in
pay which Margolin had previously denied the employee.
Fernandez explained that on this occasion the Company
had a large order to fill and he told Margolin that Medina,
Jr., was threatening to quit and that he was absolutely
needed to complete the big order. Under those circum-
stances, Margolin relented and kept the employee at hTS'
job by giving him the increase in pay.
On cross-examination, however, Fernandez said that
he assigns men to various jobs in the folding department,
checks the work in progress and makes sure that it is
being properly performed. In the assignment of jobs to
the employees, he uses his own judgment based on his ex-
perience. Fernandez also said that Margolin places much
reliance on his judgment; when a new employee is hired
on a probationary basis, he is retained or dismissed on the
basis of Fernandez' opinion of his ability or skill. Also
when layoffs become necessary due to lack of work, Fer-
nandez decides in the first instance which operators will
be retained and which shall be laid off. Margolin then per-
forms the actual layoff based upon the recommendations
of Fernandez. Fernandez also said that he was a salaried
employee and was changed from an hourly employee to
a salaried employee at the time he was made the working
foreman in the folding department.
Employee Ortiz stated that Margolin had personally in-
formed him that Fernandez was in charge of the folding
department.
Upon all the evidence on this point, it is found that Fer-
nandez, Sr., responsibly directs the employees in the fold-
ing department, effectively recommends the hiring or re-
tention of employees on a permanent basis, has effective-
ly recommended a salary increase, and has selected em-
ployees for layoff. I find, therefore, that he is a supervisor
within the meaning of the Act and is therefore excluded
from the appropriate unit.
Isabell Fisher
Isabell Fisher testified that she is the floorlady in the
bindery department. As the floorlady, she regularly as-
signed particular jobs to the employees in the bindery de-
partment. In this department, there are about six or seven
different operations. Fisher testified that some employees
are more skilled at one operation than in another. It is
part of her job to decide which employee shall operate
which machine on each particular job. She sets up the
machines for other employees. On some occasions, she
operates different machines in the bindery department
herself. Fisher testified that the women employees in her
department came to her with petty complaints or
grievances which she remedied herself. If the grievances
or complaints were of a serious nature, then she referred
them to higher authority in the person of Margolin or
Richard Kramer, the plant superintendent.
Fisher said that the girls brought these complaints to
her because they had been told to do so by Margolin.
Fisher is paid on an hourly basis as are the other em-
ployees in the bindery department, but she is paid more
2 Snap-O0 Binding & Folding, Inc., 160 NLRB 161, July 12, 1966.
3 These employees are listed in G. C Exh. 2.
SNAP OUT BINDING & FOLDING INC. 319
than the other employees . Fisher has, on occasion, given
employees permission to be absent from work or to leave
work early without consulting anyone else. She also has
informed employees when they were laid off or when
they were transferred to other departments or when to
work overtime.
Upon all of the evidence , I find that Fisher responsibly
directs the employees in the bindery department and ex-
ercises authority to adjust minor grievances and grant
minor deviations from the scheduled work hours . There-
fore, I find her to be a supervisor within the meaning of
the Act. She is therefore excluded from the appropriate
unit.
Robert C. Aviles
On direct examination , Aviles testified that he had
been employed by the Company for the past 12 years. At
the time of the organizational campaign he held a job
which was called expediter-processor . He explained that
in this job, his principal duty was to receive purchase or-
ders from customers on the telephone and write out these
orders with specific instructions as to how each job was
to be done . When he completed writing up the ticket, he
took it to Kramer , the superintendent, who then dis-
tributed the work order to the particular department
which was to perform the work . Sometimes he received
work orders through the mail, and on those occasions he
called the customer and inquired as to how the customer
wanted the job performed . The "job tickets" which
Aviles made out contain the instructions for completing
the job. Aviles said that there is no one who works under
his supervision. When he finishes writing up the job
ticket, he gives it to Kramer who distributes it. On some
occasions , Kramer has asked him to take the ticket to the
proper department , and on those occasions , which were
not frequent , he did so . For this work , Aviles has a desk
located in the shipping area. Sometimes he will do work
in the cutting , drilling, or general bindery departments.
He is capable of performing work in each of the depart-
ments such as cutting , binding, and folding, and on occa-
sion he works in these departments to demonstrate to the
employees how the customer wants the job done, or to
help out on a rush order . His job brings him in frequent
contact with the employees in the shipping department,
but only because of specific instructions from the
customers to him as to how the customer wants the
names of consignees , etc., affixed on their packages or
cartons for out-of-State or local shipment . In the shipping
department , there is a staff which varies from one to five.
When needed , other employees may be transferred into
the shipping department for a special job. Aviles testified
that he did not work the same regular hours as other em-
ployees, because on some days he received no work or-
ders and on other days might receive as many as 30. On
some days he worked over 8 hours, and on other days he
did not work that number of hours. He is paid a salary.
Aviles testified that he had no authority to hire, fire, lay
off, transfer , or discipline employees . He has the same
lunch period as other employees , but there are no em-
ployees assigned to work under his supervision. Some-
times employees come to him to ask more instructions
than are carried on the job ticket.
On cross-examination by the General Counsel , Aviles
said that he had brought the names of two prospective
employees , Navarrette and Lopez , to Margolin 's atten-
tion . These men were later hired . Aviles said that on one
occasion he had picked employees to work overtime and
initialed their timecards for that overtime . On redirect,
Aviles testified that Navarrette was a personal friend of
his with much less experience in the business , so Navar-
rette occasionally asked him a question about the work,
rather than to go to Margolin or to the superintendent.
Aviles explained that he had recommended Lopez for
hire to Margolin at the request of a fellow employee, Nor-
man Robarge. Aviles also said that his selection of people
to work overtime and his initialing of their timecards on
the one occasion referred to was done at the express
request of Superintendent Kramer , who knew that Aviles
was working overtime on that night , and Kramer wanted
to keep a personal appointment on that particualr even-
ing. Aviles said that the only time he had picked em-
ployees for overtime or initialed their overtime cards was
on this one occasion at the specific request of Kramer.
Aviles answered all questions on both direct and cross-
examination in a straight forward and candid manner. I
credit his testimony and find that he was the expediter-
processor for the Company whose principal duties were
to write up instructions as to how the customers wanted
their orders performed and to see that their instructions
were followed . There were no employees over whom he
exercised any routine supervisory authority. If he con-
ferred with employees or instructed them as to certain
jobs, it was merely to make clearer the customer's in-
structions as they had given them to Aviles. He appears
to be an experienced , valued, salaried employee who per-
forms one particular function for the Company, that of
the order-taker, whose duty it was to see that orders were
finished in accordance with the customers ' instructions
and to their satisfaction.
It has been said that the focus of inquiry into an em-
ployee's status must be centered on the existence of su-
pervisory power, which is to be distinguished from ab-
stract, theoretical, or "rule book" authority on the one
hand and from infrequent exercise of clearly delegated
authority on the other.4
And while it is well settled that the list of supervisory
powers in the Act's Section 2(11) must be read in the
disjunctive , the section also requires the exercise of "in-
dependence of judgment in the conjunctive ... with what
goes before. "5
It follows then that it is not enough that an individual
perform one of the functions listed in Section 2(11); he
must consistently display true independence of judgment
in implementing this authority. The exercise of some su-
pervisory tasks in a merely "routine," "clerical," "per-
functory," or "sporadic " manner does not elevate a rank-
and-file employee into the supervisory ranks. Nor will the
existence of independent judgment alone suffice ; for "the
decisive question is whether [the individuals involved]
have been found to possess authority to use their inde-
pendent judgment with respect to the exercise by them of
4 See N L.R B v. Southern Bleachery & Print Works, Inc., 257 F 2d
235, 239 (C.A. 4), cert. denied 359 U.S 911; N.L.R B v. Capital Transit
Company, 221 F 2d 864, 867 (C.A D.C.), Ohio Power Company v.
N L.R.B., 176 F.2d 385, 387 (C A. 6); N.L R B. v. Beaver Meadow
Creamery , Inc., 215 F .2d 247 , 251 (C.A 3), N L.R B. v. Whitin Machine
Works , 204 F 2d 883 , 886 (C.A 1).
5 Poultry Enterprises , Inc. v. N.L.R B , 216 F 2d 798 , 802 (C.A 5),
N L R.B v . Southern Bleachery & Print Works, supra
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some one or more of the specific authorities listed in §
2(11) of the Act, as amended." 6
Upon the above facts and the authorities cited, I find
that Aviles is not a supervisor as defined by the Act.
The Alleged Majority of the Union
As noted previously, counsel for the parties at the hear-
ing stipulated that 40 named employees were properly
members of the appropriate unit. By the finding above
that Aviles is not a supervisor, the number of eligible
voters in the appropriate unit was increased by 1 to a total
of 41 employees. Of the 41 employees, the Company con-
tends that the authorization cards of 7 employees should
not be counted. These employees are: Hans Schaer, Bur-
ton Chase, Jerry Alexander, Hazel Williams, Bill Hardi-
son, and Nancy and Edwin Webb, who are wife and
husband.
The Cards of Certain Employees
In deciding whether the card of each of the above-men-
tioned employees should be counted, the criterion for the
decision is set out in a series of Board decisions.' In
Bauer Welding & Metal Fabricators, Inc., 154 NLRB
954, 966-967, the Trial Examiner's decision, which was
adopted without comment by the Board, states the fol-
lowing:
Respondent would seem to misconceive the basis
of the doctrine on which it relies.... The doctrine,
in essence, is to the effect that where the facts taken
as a whole show that the employees were led to be-
lieve that by signing the cards they were not signify-
ing a desire to be represented by the Union for col-
lective-bargaining, but merely attesting to their
willingness to have a Board election, the cards
achieve a significance no greater than what the
Union led the employees to believe they had.
Thus in N.L.R.B. v. Harold W. Koehler, et al. dlbla
Koehler's Wholesale Restaurant Supply, 328 F.2d
770, 773 (C.A. 7), the employees were told that by
signing the cards "they were not selecting [the
Union] as their bargaining agent" (emphasis
supplied) but merely executing the formality
needed for having the Board conduct an elec-
tion. In N.L.R.B. v. Abrasive Salvage Company,
Inc., 285 F.2d 552, 555 (C.A. 7), the employees
signed under like belief that it was only for [the] pur-
pose of having the Board conduct an election, some
of the signers, when solicited, having "expressed
reluctance to join the union." In Abrasive Salvage,
also, the employees, upon learning the union was de-
manding recognition on the basis of the cards, asked
the union for their cards back, saying it-had "misin-
formed" them. In Englewood Lumber Company, 130
NLRB 384, the remaining case cited by Respondent,
the employees were led to believe the cards had no
significance other than to indicate their willingness
to have a Board election. [Emphasis supplied.]
6 N.L.R.B. v Brown & Sharpe Manufacturing Company, 169 F.2d
331, 334 (C.A 1). See also Poultry Enterprises, Inc. v N.L R B , 216
F 2d 798, 801-802 (C.A. 5), N L.R B. v Lindsay Newspapers, Inc., 315
F 2d 709,712 (C A 5), N.L R.B. v. City Yellow Cab Company, 344 F 2d
575, 579-582 (C A 6); N.L R B v Overnite Transportation Co , 308
F 2d 284, 289-290 (C A 4), N L.R B. v Southern Bleachery & Print
Works, Inc, 257 F.2d 235, 239 (C A. 4), cert demed 359 U S 911,
The decision of the Board in Peterson Brothers, Inc.,
144 NLRB 679, 683, states the criterion for acceptance
of an authorization card in a situation in which the words
"only" or "solely" are not used. In that case, the Board
stated:
We agree ... that the card signed by McElveen
does not validly designate the Union.... McElveen
had twice refused to sign a card at the solicitation of
union representatives. The third time he was sol-
icited they told him that signing a card would not af-
fect his views with respect to the Union, that it did
not mean that he would be voting for it, and that if he
wanted his card back he would be able to get it if
enough cards had been signed so as to get an elec-
tion. It is clear that representations were made ...
that the only reason he was being asked to sign a card
was to help obtain an election, and that his original
opposition to the Union would not in any way be
compromised if he signed a designation card.
Examination of the decision in the Peterson case illus-
trates that the words "only" or "solely" were not used by
the solicitors of the cards.
With the criterion for the judgment of the cards
established, we may turn to the pertinent testimony.
John Harris, a qualified handwriting expert, testified
that in his opinion each of the cards here involved was
written by the employee concerned. He had compared
each card with certain sample signatures obtained from
the Company's records. Harris was definite in his
testimony as to all employees, except one, whose card
was authenticated in another way and received in
evidence.
As mentioned previously, the General Counsel offered
evidence elicited from each employee as to the circum-
stances under which the employee had signed the card.
The Card of Hans Schaer
This employee was called as a witness by the General
Counsel. Schaer is an alert young man who is a recent im-
migrant from Switzerland. It would appear that he had a
good education in his native land because at the time he
testified he had been in this country less than a year but
spoke and understood plain, simple English quite well. As
one reads the typewritten record of his testimony, one
might be misled into thinking that this 'witness was con-
fused; that would be a mistake. The only confusion in
Schaer's testimony was not the fault of the witness but
the fault of counsel and the Trial Examiner, who occa-
sionally forgot that Schaer's English vocabulary was not
as extensive as those of us who were born to the lan-
guage. As he testified Schaer asked for clarifications of
such words as "status" and "discussed." When the
questions were propounded in simple, plain English the
witness answered intelligently, candidly, and to the point.
On direct examination by the General Counsel, Schaer
as shown an authorization card purportedly signed by
him. The card of Schaer is in the same form as the
N.L.R.B. v. Parma Water Lifter Co, 211 F.2d 258, 261 (C.A. 9), cert
denied 348 U.S 829, San Manuel Copper Corporation, 120 NLRB 174;
English Lumber Company, 106 NLRB 1152, Forest Oil Corporation,
14-RC-1455 [not reported in NLRB volumes]
9 See Englewood Lumber Company, 130 NLRB 394; N L R.B v
Harold W. Koehler, et al d/b/a Koehler's Wholesale Restaurant Supply,
328 F.2d 770,773 (C A. 7).
SNAP OUT BINDING & FOLDING INC. 321
authorization cards of all other employees. This card is
unequivocal and reads as follows:
AUTHORIZATION FOR REPRESENTATION
I, THE UNDERSIGNED, EMPLOYEE OF
AUTOMATED FOLD. & BIN.
COMPANY
ADDRESS
AUTHORIZE THE BOOKBINDING & BIND-
ERYWOMEN'S UNION LOCAL NO. 63-63 A
to represent me in negotiations for better wages and
working conditions . This authorization supersedes
any similar authority previously given to any persons
or organizations.
MY SIGNATURE H. R. Schaer Date 1.6.66
My Address 12216 Sproul Phone -
City Norwalk
Kind of Work Perfect-Binder-Oper.
Dept. Stitcher/Perfect-Binder Mechanic
Present Wage Scale 3.35$ Shift: Day X Swing
Graveyard
On direct examination Schaer readily identified the
card, his signature, and the date. On cross-examination
Schaer said that he signed the card at a union meeting and
he thought that employee Jose Medina, Jr., was the per-
son who gave the card to him to sign. This meeting was
held in the back room of a tavern. Schaer said that
George Smith, the business representative of the Union,
and other employees were present. When he was asked if
other authorization cards were passed out to people at the
meeting, Schaer explained that he did not know, because
he had another appointment so he left the meeting early.
At the moment when he received his card, he was the
only one who was given a card. Schaer explained that he
started to leave the meeting early to keep his other ap-
pointment, when Jose Medina, Jr., gave him the card. At
that point Schaer's testimony is as follows:
Q. (By Mr. Yacullo) Were you told that that
authorization card was only to get an election?
A. That is all what I know, but I don't know who
told me this, but I know -I have known this already
before when I heard this from other people, that this
card is to get an election. That is all what I know
about this card.
A moment later Schaer testified as follows:
Q. (By Mr. Yacullo) Did anyone at that meeting
tell you that your signing of the card was only to get
an election?
A. Right.
Q. They told you that?
A. Right.
Q. Did more than one person , as you remember,
tell you that?
A. Yes.
Q. Do you remember Joe Medina, Jr., saying that
to you?
A. It is possible, but I cannot remember exactly.
Schaer then said that he was not sure that Jose Medina,
Jr., was the person who told him that the card was only
for the purpose of having an election. On further
questioning Schaer answered as follows:
Q. (By Mr. Yacullo) But you are sure that more
than one employee at that meeting told you that it
was only to get an election?
A. Right.
A moment or two later Schaer , in answer to questions
by the Trial Examiner , testified that he started to leave
the meeting to keep his other appointment when he was
called back by a person who he thought was Jose Medina,
Jr. In regard to Jose Medina, Jr., Schaer testified as fol-
lows:
THE WITNESS: Somebody called me back, but I
don't know-I think it was Joe Medina, Jr., who
called me back.
And he was talking about this, signing the card,
and I say, "Now, I will think it over until tomorrow."
And he say, "Oh, you don't have to be - " he say,
"We want this card. It has nothing to do with the
votes." That means that I vote for the Union, that is
only to get this election.
At that point Schaer signed the card on the table at which
Smith, the business representative, and the other mem-
bers of the group were sitting. After he signed the card he
gave it back to Jose Medina, Jr.
Schaer said that he did not pay much attention to the
writing on the card because he could not read English
very well and that he relied on what Jose Medina, Jr., and
others had told him about the card.
On redirect examination, Schaer was asked if he had a
conversation with Smith on that evening in regard to what
would be done with the card after he signed it. Schaer
then testified as follows:
A. He told me that this card is only for the Union
so that nobody else would see the card later, and that
is -as far as I know, that the -card, after the vote, it
get throwed away. Nobody except the Union sees
this card, in other words.
Employee Jose Medina, Jr., testified as to the same in-
cident as follows:
Q. (By Mr. Gora) Do you recall whether there
was a meeting held on that day?
A. I believe there was.
Q. Do you recall whether this was the meeting
where you gave Mr. Schaer a card?
A. I did, yes.
Q. Did you explain to Mr. Schaer the purpose of
the card?
A. I did.
Q. What did you say to Mr. Schaer, and what did
Mr. Schaer say to you?
A. I told him that this card gave the union the
right to represent him, and he did not fully un-
322 DECISIONS OF NATIONAL ]LABOR RELATIONS BOARD
derstand that, so I tried to explain it to him in that
these cards would be sent into the Labor Board, and
if we could show a majority, then we possibly could
get an election.
Q. Yes?
A. And he was kind of still hesitant.
So I told him that Max would not see these cards,
and I think this is what sold him. So he did sign it just
before he left the meeting.
Q. And he returned the card to you?
A. No. At that time, he had walked around the
table and he was directly in front of me when he was
filling it out, and he handed it to Mr. George Smith.
Q. At any time did you tell Mr. Schaer that the
only reason for the card was to both-to obtain an
election?
A. No, I did not. [Emphasis supplied.]
In the above, it should be noted that George Smith was
the business representative of the Union who was present
during all the conversation of Schaer and Medina, Jr.
Smith did not testify in this proceeding. Since he was in
the courtroom and available to testify on this point, and
did not, I draw the inference that if he did testify his
testimony would not be favorable to the position of the
General Counsel or the Union. In my judgment, Schaer
was an honest, truthful witness who found himself slightly
handicapped in testifying in English. Upon his testimony
which certainly seems to be buttressed by that of Medina,
I find that Schaer's authorization card should not be
counted. From the testimony of both Schaer and Medina,
it is clear that Medina told Schaer that "these cards would
be sent into the Labor Board," and if the Union "could
show a majority then [the Union] possibly could get an
election." He was also told that these cards would not be
shown to the Employer. There is no evidence in the
testimony of either witness that by signing the card,
Schaer authorized the Union to do more than seek an
election. The promise of Smith to Schaer that the card
would not be shown to Margolin, the Employer, pre-
cluded in good faith any showing of it to Margolin as
the basis for a claim for recognition and bargaining.
The Card of Burton Chase; the Series of Threats
Directed to Chase; -Chase's Communication of
Threats to Employees
This employee was called as a witness for the Re-
spondent. Chase stated that his relationship with the
Union was marked by a series of threats. He testified
that when he was originally invited to attend the union
meetings by employee Edwin L. Webb, he asked Webb
what would happen if he did not go to the meetings.
Webb replied that things would be made so unpleasant
for Chase in the plant that he would be forced to quit.
Chase testified that he went to a couple of union meetings
and at one of them he signed an authorization card.
On direct examination he testified that he signed his
card in the course of a talk by Smith, the Union's
business representative. He testified as follows:
Q. Did Mr. Smith say that this card was only to
authorize an election?
A. I could not say that he said it in those exact
words, but it was so stated more or less that it was
only to authorize an election; that it had no binding
effect on me if there was not an election, or if the
shop did not become union, but this was not said
directly to me; it was said to everybody that was
present.
Chase was cross-examined on this aspect of his
testimony but it remained unshaken.
Chase also testified that at another union meeting
Smith, the business representative, Webb, and other lead-
ing union adherents were checking over the names of em-
ployees who could be counted upon to vote in favor of the
Union. When they came to the names of employees Cid-
dio and Hans Schaer, previously mentioned, Smith and
Webb agreed that the two named employees were not for
the Union and "must be gotten rid of." Chase asked
Webb how Ciddio and Schaer could be gotten rid of and
Webb replied by asking if Chase had ever heard of
sabotage. Webb then suggested that Chase "turn away"
from the machine some of Ciddio's paper which would
cause him to foul up the work of the machine.
Chase further testified that a few days before the elec-
tion Webb called him on the phone and said that he had
heard that Chase had "finked" on the Union. Then Webb
said that he had better be sure, which way he voted,
because he might find himself out of a job. Chase asked if
Webb was threatening him and Webb then replied that he
was not threatening. The men then discussed whether
Chase had made an affidavit to the attorney for the
Respondent. Webb accused Chase of doing that, but
Chase denied it. Then Webb said that Chase had better
make up his mind as to how he would vote because Webb
would hate to see Chase come home sometime and find
that his wife and baby had been in an accident. Chase
then told Webb that if he was threatening him, that Chase
would be happy to meet Webb in the street and fight it
out.
Chase said that he glanced at the card but did not read
it before he signed it.
When Edwin L. Webb was called to the stand on the
first occasion as a witness for the General Counsel, he
was asked only to identify his authorization card. When
Chase testified as to the various threats made against him
by Webb, I suggested to the General Counsel that Webb
should be recalled to give his version of those events. On
direct examination on his recall, Webb testified that at
one meeting Schaer's name had come up and had been
discussed. At that meeting Business Representative
Smith asked Webb how Schaer felt about the Union, was
he for the Union or against it? Webb testified that he an-
swered the question by saying that he thought Schaer
"wanted to think about it" Webb testified that no one
said that Schaer should be "gotten rid of" because Schaer
up to that point had never said that he was for or against
the Union. Webb also said that Ciddio's name came up
under the same circumstances of reviewing the prospec-
tive voters. When Ciddio's name came up, Smith, the
business representative, said that Ciddio had a business
of his own at one time and, although he was a member of
the Union before that, he had given up his membership.
Webb said that a few days before the election he made
a phone call to Chase. Webb explained that he was told 2
days before the election that Burton Chase had evidently
switched sides, so he called Chase. He asked Chase if he
had changed sides. Chase replied that he had not changed
sides, but that he did not know what to do; Chase said
that when he talked to the union men he thought the
Union made sense, but when he talked to Margolin, the
Employer, he was not sure. Then Chase said that
SNAP OUT BINDING & FOLDING INC. 323
whichever way the shop went, he thought he would lose
his job. Then Webb told Chase that because Chase
changed sides the Union would no longer support Chase
with Margolin, because Margolin had told Webb on at
least three occasions that he wanted to fire Chase. Then
Chase said that the only thing he could do was not vote.
Webb testified that when the first conversation was
finished, he waited a half hour and called Chase again. In
this conversation Webb charged Chase with signing an af-
fidavit for Margolin, which Chase denied. When Webb
said that Chase had signed such an affidavit, Chase took
offense at being called a liar and said he would be willing
to meet Webb in the street and fight it out. Webb denied
that he ever threatened bodily harm to Chase's wife or
child.
Chase also testified, and this was confirmed by Mar-
golin, that Chase reported the first two incidents of
threats to Margolin. Margolin, at one of the employee
meetings run by the Company, asked Chase to tell the
employees of Webb's threats and the so-called suggestion
of sabotage. Chase related the facts of these incidents to
the assembled employees.
It is noteworthy that the General Counsel offered no
evidence as to the fact of Chase's communication of these
threats to the assembled employees at the meeting.
It is also noteworthy again that Business Agent Smith
did not testify concerning what took place at the meeting
in which the union adherents were counting prospective
votes for and against the Union.
The Card of Hazel Williams
This employee was called by the General Counsel. She
testified on the subject of her authorization card, the
meeting of the union adherents at which her card and that
of employee Alexander were signed, and she then
described the duties of Isabel Fisher in the bindery de-
partment. On cross-examination, further facts concerning
her signing of her authorization card were elicited. She
testified that the card was passed to her in the course of
a meeting and that Smith, the business representative,
told her that she "was not obligated under any conditions
by this card only that it was authorizing the union to
speak for us for better wages and working conditions.
That is what I was told-all that I was told." Williams
then admitted that on August 23 she gave an affidavit to
a Board agent in which he had asked her a question rela-
tive to the circumstances under which she had signed her
authorization card. The witness was then shown the fol-
lowing paragraph in her statement, which she
acknowledged she had given to the Board agent:
A. I have been shown an authorization card by
the Board agent, and the signature appearing thereon
is my signature. I signed the card on October 28,
1965, at Little Siberia. The card was given to me by
George Smith, who said that the signature on the
card was to have an election, that signing the card, it
would authorize the union to have an election for the
union to come in. Smith said no one would see the
cards, because they would be on file, and I believe he
said Washington. He did not say that the union
would use the card for any further purpose, any pur-
pose other than an election.
On the basis of the testimony of Williams, I find that
her card should not be counted. In Morris & Associates,
Inc., 138 NLRB 1160, 1164, the Board stated that cards
"secured on a representation of the union agent that
`other than for the election, cards were not binding on
people that signed them,' . . . were unreliable for the pur-
pose of establishing the Union's majority status."
The Card of Bill Hardison
This employee was called as a witness by the General
Counsel. Hardison said that he signed his card at a meet-
ing of union adherents on October 28, 1965. He said that
George Smith gave the cards to the persons present who
passed them around. When asked what Smith said about
the purpose of the cards, Hardison testified, "He said that
he had to have enough signatures on the cards for him to
go down and get an election." The General Counsel, a
moment later, repaired the damage of the last answer by
asking if Smith said "the only purpose for this card
was - or this card is only to get an election." The witness
replied in the negative. However, on further cross-ex-
amination the witness answered as follows:
Q. (By Mr. Yacullo) In the conversation you had
with me on Monday, isn't it a fact that you told me
that the only purpose for which you signed the card
and which Mr. Smith told you, was to get an elec-
tion?
A. That's right. The only reason I heard.
Q. Then he did say to you that it was only to get
an election?
MR. GORA: Objection.
The question has been asked and answered.
TRIAL EXAMINER: I am not sure. I will overrule
the objection and let him answer.
Q. Is that right?
A. That's right.
In the light of all the evidence as to the signing of these
cards, I find that this uncertain and contradictory
testimony of Hardison is insufficient to establish by a pre-
ponderance of the evidence that the card authorized the
Union to represent Hardison. Therefore, I find that
Hardison's card should not be counted.
The Card of Jerry Alexander
This employee's card was submitted in evidence upon
the testimony of Hazel Williams that she saw Alexander
appearing to fill out his card at the same time as she filled
out her card at a union meeting. The signature of Alex-
ander was also authenticated by John Harris, a qualified
handwriting expert. Alexander was unavailable as a wit-
ness because he is presently on duty with the Army in
Korea.
Upon all the evidence in the case, I find that the card of
Alexander should be counted.
The Untimely Signatures on the Cards of Herbert
Gorman and Carmie McKay
The Company contends that the authorization cards of
these two employees were obtained at a time which was
after the Union's demand for recognition and the Com-
pany's refusal of recognition and bargaining. At the hear-
ing, counsel stipulated that the demand letter of the
Union was sent by George Smith on January 20 and
received by Margolin in the ordinary course of the mail
on January 21. Margolin testified credibly and without
contradiction that he actually received the demand letter
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"in the early morning mail" and went to his attorney's of-
fice where the reply letter was written and mailed that
day. The testimony of counsel for the Company cor-
roborated this testimony of Margolin and further pin-
pointed the drafting and sending of the reply letter to
sometime around 11:30 a.m. on January 21.
The authorization cards of Herbert Gorman and his
stepson, Carmie McKay, were not signed until around 4
or 5 p. in. on J anuary 21.
Edwin L. Webb testified that he went to the home of
Gorman, accompanied by his wife, for the purpose of
signing up Gorman and his stepson, Carmie McKay.
Webb said that they arrived at the Gorman home
sometime between 3 and 5 p.m. Gorman was home but
his stepson, Carmie McKay, was not. So Webb and his
wife waited for McKay to return. When Carmie McKay
arrived at the home, he was given a card which he
signed and returned to Webb's wife. Nancy Webb
testified that she and her husband reached the Gorman
home around 3 or 4 p.m. and that they waited approxi-
mately an hour for Carmie McKay to return home.
On this visit both Gorman and McKay signed cards
for the Union. However, it seems crystal clear that
the signatures of Gorman and McKay were obtained
at least 4 or 5 hours after the demand of the Union
for recognition and bargaining was received by the
Company, and, indeed, some hours after recognition
and bargaining had been refused by the Company.
The Board has traditionally held that a union's majority
status in a unit must be determined as of the time that the
union demands recognition, and if the request for recogni-
tion and bargaining is made by letter that the all important
time for determination of the union's majority status is the
time at which the company receives the letter.8
The record in this proceeding is barren of any later de-
mand for bargaining made by the Union upon the Com-
pany subsequent to the receipt of the original demand
during the morning of January 21. Therefore, the cards of
Gorman and McKay may not be counted. All cases on
the point hold that the fact that the Union may have sub-
sequently secured cards from employees in the unit is
irrelevant.9 The Scott case, supra, appears to be on all
fours with the instant case.
The Cards of Ed and Nancy Webb
The basis of challenging these cards is found in the
testimony of Margolin and employees Santiago and
Thomas. Margolin testified that some days after the elec-
tion, Nancy Webb approached him in front of the plant
and said she was sorry for all the trouble her husband and
she had caused Margolin. She then said that they were
forced to do what they did because Business Agent Smith
had said to her husband and her that they were far behind
in their union dues and if they did not help in organizing
the Company, they would be blackballed by the Union
and they would not be able to get a job in the Los Angeles
area. If they assisted the Union, these back dues would
be cancelled.
Employees Mary Santiago and Nadine Thomas
testified to similar conversations with Nancy Webb.
Nancy Webb denied that she had told Margolin or the
employees that she was threatened as stated.
8 Rea Construction Company, 137 NLRB 1769; Spitzer Motor Sales,
Inc., 102 NLRB 437.
Obviously, Ed and Nancy Webb had been members of
the Union for a long time before the Union attempted to
organize the Company. Without making a finding as to
the fact of whether the threats related were made, I find
that as longtime members of the Union their cards should
be counted.
The Alleged 8(a)(1) Conduct
a. The meeting of January 10
Jose Medina, Jr., was one of the leading adherents of
the Union. He was called as a witness by the General
Counsel. His testimony as to his signing of his authoriza-
tion card has been referred to previously. Medina said he
was a folder operator at the time of the election. Medina
testified that on approximately January 10, which date is
a few days after the Union filed its petition in the
representation case, Kramer, the superintendent of the
plant, told him and other employees that Max Margolin,
the Employer, wanted to talk to the employees. Accord-
ing to Medina, Margolin began by saying that he knew
about the union meetings that the employees were having
with George Smith and that he knew where these
meetings were held, at Mary's Cafe. He then said that
unions were good and in fact his father had worked many
hours per day before unions were established. He said
that the United States needed both union shops and nonu-
nion shops. Margolin then said that if the Union came in
to his shop the employees, excluding Dick Kramer and
Isabell Fisher, would be found not qualified to meet the
standards of the Union; that the employees were not jour-
neymen and journeywomen and that the Union would
replace them with members of the Union who were not
working at the time. Then Margolin said that unions were
prejudiced toward Mexicans and Negroes and he quoted
some statistics concerning Negro membership in unions
in general and he pointed directly towards Medina and
asked him if he knew the percentage of Mexicans in the
Union. Medina spoke up saying that he thought about 80
percent of the Union's membership was Mexican, but
Medina's wife Tess said that he did not know what he was
talking about. Medina became angry and lost track of
what Margolin was saying, but when he started to listen
again he heard Margolin say as far as he was concerned
he would close his doors if the Union came in. Employees
Williams, Birdsong, and Santiago corroborated the
testimony of Medina, Jr., except to that part about Mar-
golin saying that he would close his doors. Medina is the
only witness who testified to that statement.
Called as a witness on behalf of the Company, Max
Margolin, its president, stated that early in January he
called a meeting of his employees. According to Margolin
he told the assembled employees that he had tried to build
the business on integrity and in treating all individuals
without prejudice, that he had always tried to find skilled
workers for his plant and he had no objection to any man
or woman because of race, color, association, clubs, reli-
gion, or union membership. Margolin said that he told the
employees about an article which he had recently read in
one of the national magazines, which stated that in the
overall picture of unions in the United States, there was
a very small number of minority groups admitted as mem-
B N L.R.B v Rural Electric Co, Inc., 296 F 2d 523, 524-525 (C.A.
10). See also N L R B v Scott & Scott, 245 F 2d 926, 927-928 (C A 9).
SNAP OUT BINDING & FOLDING INC. 325
bers to the unions. When Margolin said this, Jose Medina,
Jr., seemed to take offense, and Medina said that in the
Union in Los Angeles minority groups had a preponde-
rance of 80 percent in the membership. Robarge, another
folding machine operator, rose and told Medina, Jr., that
was nonsense. Robarge said it was not true and was not
close to being true. When order was restored, Margolin
continued saying that his father had been a union man and
a dedicated Socialist, who believed in fair pay for a day's
wages and that all men were entitled to that. He then said
that there was good and bad in everything including
unions. He then told them they had to figure out what was
good for themselves. Margolin then said that he was well
aware of the Union and its rules and regulations concern-
ing apprenticeship and journeymen. He then told the em-
ployees that in order to become a journeyman, that an
employee had to have 5 years of experience at the trade.
A male had to know how to handle more than one piece
of equipment and he had to be able to check out on the
equipment and do a professional job. He told the em-
ployees that a female had to be a member in good stand-
ing for 3 years and had to qualify in all categories of her
particular field. Margolin then said that he thought Isabell
Fisher, whose experience had been extensive, would be
able to qualify as a journeywoman, but he did not think
that any of the other girls could qualify. He said that at
that time he estimated that the Company had at least six
apprentices for each journeyman.
As the basis for his knowledge on these points Mar-
golin said that he received information periodically from
the Printers Institute of America, an employer organiza-
tion which sent material to employers. He said that he
had obtained the present scale of wages of the Union in
the Los Angeles area from Forbus, of the Printers In-
stitute of America. At this point in his testimony the wit-
ness produced a document entitled "Wage Scale and
Agreement, Bookbinders and Bindery Women's Local
No. 63, 63-A" and pointed out that section 10, covering
apprentices, said the following:
APPRENTICES
The Employer shall not employ boys or girls as ap-
prentices who are under 16 years of age.
The ratio of male apprentices shall be based on
the number of journeymen regularly employed. The
ratio of female apprentices shall be based on the
number ofjourneywomen regularly employed.
The ratio of apprentices to journeymen, including
proprietor members regularly working at the trade,
shall be as follows:
One (I) apprentice to 4 journeymen.
Two (2) apprentices to 8 journeymen.
Three (3) apprentices to 12 or more jour-
neymen. Except that for each additional five (5)
journeywomen employed over fifteen (15), one
(1) additional apprentice may be added.
Male apprentices shall be required to serve five (5)
years apprenticeship, and female apprentices three
(3) years apprenticeship; except as provided in Sec-
tion 3 for specialized work. 10
Margolin testified that he told the employees that they
should give serious thought to this aspect of the area con-
tract of the Union, since its enforcement might mean that
they would be ineligible to work in the shop if the Union
came in.
Margolin denied that in the course of this speech he
mentioned Mary's Cafe or any other meeting place. He
also denied that he said he would close the plant if the
Union came in.
b. The Alameda Inn incident
Ruth T. Brown, named Varrin prior to her divorce,
testified as a witness for the General Counsel. She
identified her authorization card and to some extent
described the work which Isabell Fisher performed.
Brown testified that around the first of January, Margolin
invited her and some other female employees to have
dinner with him at a restaurant known as The Alameda
Inn. At this dinner Margolin told all the girls that he
wanted them to know that he had taken a 25-cent-per-
hour raise away from Brown. Margolin had given Brown
such a raise some 3-4 weeks before. When this dinner
meeting was over, Brown had a conversation with Mar-
golin in his car in the parking lot. In this conversation
Margolin said that he figured that Brown had something
to do with the Union and that he knew Jose Medina, Jr.,
did, and that he was the one that was causing all the trou-
ble. Then Margolin said that it just wouldn't work
because he would close the plant down before he would
let the Union get in.
Margolin's version of this incident is far different. Mar-
golin in his testimony stated that in approximately early
December, Brown came to him and said that she was hav-
ing a "rough time" because of the divorce she was getting,
etc. Margolin knew of her straitened circumstances.
Brown asked Margolin for a personal loan. Margolin re-
jected the idea of the loan, but agreed to give Brown a
raise of 25 cents per hour, on condition that she keep the
raise secret because he didn't want the other female em-
ployees to become discontented. According to Margolin
the raise went into effect, but a few weeks later he noticed
that the other female employees were cool to him and
didn't give him their usual friendly greeting in the morn-
ing. He inquired what was wrong and Isabell Fisher said
that the girls were unhappy with Margolin because he had
given a raise to Brown of 25 cents an hour more than the
other girls, and in their opinion Brown did not deserve
that kind of money. Margolin decided to ask the girls to
meet with him at the Alameda Inn because he wanted to
explain to them why he had given Brown the raise. When
the girls met on this night, he asked Brown to tell the girls
in her own words the reason why Margolin had given her
the extra money; that he did not wish to speak, but
wished her to. Brown then went on to tell the girls of her
personal troubles and her involvement in a divorce in
which her husband had left her destitute. Brown ex-
plained that Margolin had agreed to give her a raise tem-
porarily to help her out of her financial difficulties. At the
meeting Margolin asked Brown if he hadn't asked her to
keep quiet about the raise because it had nothing to do
with her ability relative to the other girls ability. Brown
admitted that Margolin had made such a request. When
10 Section 18 entitled "Conditions" and section 2 entitled "Employ-
ment" should also be noted.
308-926 0-70-22
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown finished, Margolin told Brown and the other girls
that he felt that he had made a mistake, and for that
reason he was taking back the 25-cent raise he had given
Brown and he wanted the girls to know that they were all
on an equal basis.
Margolin said that as he left the restaurant, Brown
called him aside and asked to talk to him. They went out-
side of the inn and because it was cold they both got into
his car. Brown proceeded to tell Margolin how sorry she
was about the whole incident. Margolin asked her why
she had told the other girls about the raise after he had
asked her not to. She said that she was very sorry that
she had done so, but had no excuse. Margolin denied
that he had threatened to discharge Brown in the con-
versation in the car or had threatened to close the
plant, or that he said Medina, Jr., was the,cause of the
union trouble.
c. The late January meeting
Late in January, Margolin held another meeting of
employees, this time at Automated. In his speech he
told the employees that the Company was losing or-
ders, which it previously received, because of union
pressure on the Company's customers.
A few days later, according to employee Birdsong,
Margolin told a group of employees that the Union was
responsible for their layoffs. According to employee
Hosey, Margolin said that the Union would replace them
with more experienced union members and that the
Union did not want any Negroes or Puerto Ricans as
members. Hosey also testified that Margolin said that the
Union was made up of gangsters and that he would close
down both of his shops before he would allow it to come
into his business.
For his part, Margolin testified that he had escorted
these employees through the plant on this occasion
because they had told him that they had some doubts
about whether or not their layoffs were due to lack of
work. He showed them that operations in the plant were
practically at a standstill and he told them that the Union
had been going to customers of the Company and bring-
ing pressure on the customers not to give their business
to the Company; that this boycott had been effective; and
that they had lost a good deal of business. Margolin told
them that their layoff was due to this activity on the part
of the Union (not the employee's activity as stated in the
complaint). In his testimony Margolin said he was reluc-
tant to name those customers who had withdrawn busi-
ness from the Company at the request of the Union
because those companies did not want to be drawn into
this controversy, but when he was directed to name the
companies by the Trial Examiner he said that Lubin of
Parker and Sons, Steve Wirtzel of Western Lithograph
Company, and Miss Janet Gallagher of Moore Business
Firms, had all told him that they were forced to withhold
orders from his plants because of pressure from the
Union, with whom these firms had labor contracts. The
General Counsel offered no evidence contrary to this
testimony.
Margolin denied that he had made the statements at-
tributed to him by employees Hosey and Birdsong.
In the course of his testimony, Margolin admitted that
on January 26 he distributed a flyer or leaflet to the em-
ployees. This leaflet was signed by an "Employee Com-
mittee to Vote No." Margolin admitted that there was no
such committee but that he received the flyer from the
Printers Institute and had distributed the flyer in the in-
terest of management. This flyer issued by the nonex-
istent committee urged the employees to vote against the
Union but I cannot perceive in it any threat of reprisal or
promise of benefit which would make it a violation of Sec-
tion 8(a)(1) of the Act. Certainly this flyer constituted
grounds for setting aside the election, but falls short of
being a violation of Section 8(a)(1) of the Act. 11
d. The affidavit incidents
The election was held on January 28 and thereafter the
Union filed objections. In investigating company charges
against the Union, counsel for the Company had inter-
views with employees Birdsong and Hosey.
Shirley Birdsong testified that after the election she
was called to the office and introduced to Victor F.
Yacullo, counsel for the Company, by Margolin who then
left. Yacullo assured her that the interview was con-
fidential, and then asked her if the Union had threatened
her in any way before the election. She answered, "No,"
but Yacullo acted as if he didn't believe her and continued
to ask her questions. She told him that at the union
meetings everybody had treated her nicely. Meanwhile,
Yacullo was writing out a statement which he asked her
to sign. She said that she would not sign anything. After
she left the office she met Margolin and told him she had
not signed the statement, and everything seemed to be
"tense" and Margolin appeared "upset." He said
something about her being ungrateful, as she went back
to her job.
Employee Lorraine B. Hosey testified that she
received two phone calls from Margolin in January or
February. In the first conversation, Margolin asked her
if his lawyer could be present when she gave her state-
ment to an agent of the Board. She said that he could.
About a week later, Margolin called a second time and
asked if she had given a statement to the Board. She said
that she had. Then Margolin reminded her of her promise
and asked her why she had not called him when she
received an inquiry from the Board. She replied that she
had changed her mind. Then he said, "After all I have
done for you." Hosey said he had not done anything for
her. Then Margolin said, "As far as I am concerned, I
have washed my hands of you, and Miss Birdsong, and
you are through." She asked him if he was threatening her
and he replied, "No. No. I am not trying to threaten you,"
but, "you better not go down to the Labor Board and tell
those people that I threatened you, because I have my
wife here, and my lawyer here, and a tape recorder."
Hosey said she was not going to tell anyone anything that
was not true.
Victor F. Yacullo, counsel for the Company, testified
that he interviewed Birdsong in his investigation of Case
21-CB-2680, which the Company had filed against the
Union. He said that in his interview Birdsong told him
that at a union meeting Business Representative Smith
had told the people that if the Union got in, the people
11 Blue Flash Express, Inc , 109 NLRB 591
SNAP OUT BINDING & FOLDING INC. 327
who did not vote for the Union would lose their jobs.
Hosey had been with her on that occasion. Birdsong told
Yacullo that she would not sign an affidavit to that effect
until she had talked it over with Hosey. Yacullo said that
he did not draft any statement in the course of the inter-
view and he did not on that occasion ask Birdsong to sign
any affidavit. Yacullo testified in a straightforward
manner. I credit his testimony. In his testimony Margolin
stated that at one employee meeting Birdsong and Hard-
ison asked him if it was true that if the Union got in the
plant, those employees who voted against it would be
discharged.
As to Hosey, Margolin in his testimony said that
Hosey had said that his lawyer could be present when she
gave her statement to a Board agent. Later he heard that
she had given her statement to the Board agent without
his lawyer being present. He phoned Hosey and asked
her what had happened. Hosey said she had tried to noti-
fy Margolin that the interview was coming up but could
not locate him. Margolin said he could not understand
that because he was at either plant 10 to 12 hours per day.
Then Hosey said, "Are you threatening me?" and per-
sisted in that question. He denied that he threatened to
discharge Hosey at any time.
In his testimony employee Robarge said that about 2
weeks before the election Margolin stopped at his
machine and asked him what he thought of the election
coming up. Robarge replied that he did not "know much
one way or the other." In the course of further remarks
Margolin said that he felt the Union was cutting off work
from the shop and if he could prove it, he would have a
good lawsuit against the Union.
In his testimony Margolin said that when he hired
Robarge, both men knew that Robarge was a member of
the Union. Margolin had asked about Robarge's ex-
perience and it all was obtained in union shops. Margolin
said that he never cared whether Robarge was a member
of the Union or not, and that his observation at this time
was a casual remark to Robarge about an item of interest
to both men.
It is undisputed that in one of the meetings during
January conducted by Margolin for employees that he
asked Burton Chase to relate how he had been threatened
by an adherent of the Union. Chase related the conversa-
tion that he had with Webb concerning sabotage of the
work of employees who were not in favor of the Union.
In his speech Chase did not name Webb but otherwise he
gave the contents of that conversation.
The summary of evidence, set forth above, is not in-
tended to be an extensive or exhaustive narrative of all
the testimony introduced by opposing counsel in this
proceeding which lasted for 5 trial days, and is spread in
five transcript volumes of testimony. It is, however, a
narration of the high points of testimony designed to give
the reader a fair picture of the opposing testimony, and
the important evidence upon which the case must turn.
Whether any certain testimony or document is mentioned
in this narrative or not, all testimony ano all documents
have been carefully considered. If any such are not men-
tioned herein, the omission is only in the interest of brevi-
ty.
Concluding Findings
It"has been set forth earlier in this report that I have
found Aviles to be a rank-and-file employee and found
that several of the authorization cards could not, under
existing law, be counted as valid designations of the
Union. Therefore, it is found that at the time of the
Union's demand for recognition and bargaining it did not
possess majority status in the appropriate unit.
It is also found that on January 21, 1966, the Company
refused to recognize and negotiate with the Union
because it did "not believe that the Union represented an
uncoerced majority of the Company's employees." It is
found that this refusal, for the reason stated, was in
good faith. For the. above reasons the paragraphs
of the complaint alleging a violation of Section 8(a)(5)
of the Act should be and hereby are dismissed.
The 8(a)(1) violations present varying problems.
I find that the Company committed no violation of
Section 8(a)(1) by Margolin's discussion of the area
contract of the Union with the employees and pointing
out to the employees that under the area contract
many employees might not qualify to retain their jobs.
It is undisputed that if the area contract, concerning
the required number of journeymen to be employed in
relation to apprentices, were applied to the Company's
operations that many of the employees could not qualify
for work under the contract. George Smith, business
representative of the Union, was present all through the
hearing and he did not testify as to any special arrange-
ments by which the employees could continue to hold
their jobs. Nor did the General Counsel show in any
other way how they could retain their jobs under the
working rules set forth in the area contract. I find that the
discussion of this phase of the situation by Margolin was
protected by Section 8(c) of the Act and by the free
speech provision of the United States Constitution.
In discussing unions in general and their acceptance of
Negroes and Mexicans into membership, Margolin cer-
tainly ventured upon very dangerous ground, but I can
find no allegation in the complaint that his introduction of
that topic in his speech constituted a violation of Section
8(a)(1). The topic seems to have been discussed by the
employees but Margolin's participation is not alleged to
be a violation in the complaint. In my judgment, this
discussion too is protected by Section 8(c) of the Act, for
it is a notorious fact that many unions do not accept as
members persons of some minorities. Until' unions have
a better record in that regard, they will be plagued by ad-
verse comment on the subject by employers and others.
I can perceive no intimidation, restraint, or coercion in
Margolin's introduction of this topic in his speech.
It is undisputed that on January 26, 1966, Margolin
distributed to employees a one-page "flyer" or "dodger"
purporting to be issued by an "Employee Committee to
Vote No." This urged the employees to vote against the
Union. As previously stated, while the distribution of this
flyer might be cause for setting the election aside, I find
it does not constitute a violation of Section 8(a)(1) of the
Act.
In the distribution of this flyer, Margolin, according to
the testimony of employee Nancy Webb, refused to give
her a copy of the flyer. The General Counsel alleged and
contended that this refusal by Margolin was an unfair
labor practice. I cannot perceive how this refusal could be
an unfair labor practice violation of Section 8(a)(1). It
might have been a discourtesy on the part of Margolin,
but there is certainly no threat or promise in his conduct
on this occasion.
It is undisputed that on January 28 the Company
distributed to the employees a one-sheet campaign
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pamphlet over Margolin's signature. This pamphlet
stated what purported to be a comparison of the take-
home pay of each unit employee as of that date and the
take-home pay of each unit employee if the Union won
the election. The current pay was based on the 40-hour
workweek at straight time at the employee's current
rate. The projected paycheck was based upon a 35-hour
workweek at straight time at the same hourly rate,
minus deduction of union dues, initiation fees, and
assessments. These pamphlets could have been inter-
preted by unit employees to mean that by selecting the
Union, the employees would lower their own wages
but the pamphlet, on its face, was campaign literature,
and while its argument might appear to be patently
fallacious, that does not constitute a violation of Section
8(a)(1).
Margolin as a witness testified in a frank and candid
manner. I credit his testimony fully as to what was said
and done on the occasions on which he made speeches to
employees. I do not credit the testimony of employee
Jose Medina, Jr., that in one of the speeches Margolin
said that "he would close the plant if the Union came in"
and that Margolin stated that he knew the union meetings
were being held at Mary's Cafe. In contrast with this, em-
ployees Brissette, Stevens, Fernandez, Aviles, and
Fisher, in addition to Margolin, testified credibly that
Margolin did not mention the closing of the plant or the
fact that union meetings were being held at Mary's Cafe.
On these points I find that Medina's partisanship has led
him into false testimony.
The testimony of Mrs. Brown as to the incident at the
Alameda Inn is also rejected. As a witness her demeanor
and bearing were not such as to impress one favorably.
She seemed to be a disgruntled employee, who was vin-
dictive toward Margolin, who had befriended her in the
first instance, but who had found it necessary to take back
her temporary raise. I do not credit her testimony.
Employee Hosey testified that Margolin told her and
other employees that the Union did not want any
Negroes or Puerto Ricans as members, that the Union
was not composed of anybody but gangsters, and that "he
would close down both shops" rather than have the
Union come in. Hosey's bearing and demeanor did not in-
spire confidence and she appeared hostile to Margolin
and the statements she attributes to Margolin are not con-
firmed by other witnesses. I do not accept Hosey's
testimony.
On the conflict of testimony between Edwin L. Webb
and Burton Chase, I must resolve that in favor of Chase.
As a witness Chase was straightforward, candid, and per-
suasive. Webb admitted that meetings, conversations,
and phone calls were made at the time and place related
by Chase, but he tried to give these an innocent aspect. I
am not persuaded that they were innocent. On the contra-
ry, I believe that Webb threatened Chase, just as Chase
related. I deem this fact important, because part of
Webb's threat was imparted to all the employees in the
appropriate unit in the course of Chase's remarks at one
of the company-employee meetings. Thus, the election at-
mosphere for all employees was tainted by both the Em-
ployer's objectionable election conduct and by the
Union's coercive threats, which were equally objectiona-
ble. The Act guarantees that employees may choose their
representative without such conduct by either the em-
ployer or the union.
I also find that Margolin's conversation with Robarge
did not constitute a violation of Section 8(a)(1).12
There has been much testimony reviewed in this case
but there has been a "thundering silence" from the vast
majority of employees. There were 41 employees; 20 of
them signed cards for the Union. Strangely enough, the
only segment of these who heard threats from manage-
ment was Medina, the union leader, who of all the em-
ployees is the only one who heard Margolin at any meet-
ing raise the traditional claim of organizing unions, "He
said if the Union came in, he'd close the plant."
Of course, Brown said that Margolin also used the
same slogan-"that he would close the plant if the Union
came in," but this occurred only at a time when Brown
and Margolin were alone, in the car at the Alameda Inn
after the other girls had left the meeting. It is highly sig-
nificant that no other employee corroborated the
testimony of either Medina or Brown in this regard. I ap-
praise their testimony as false and therefore reject it.
In like manner, employee Hosey attributed to Margolin
certain statements; Birdsong, also a certain statement;
and Hardison another statement, but none of these cor-
roborated the other. The General Counsel apparently
gathered scraps of testimony from the bottom of the bar-
rel to buttress his case, but the only employee-accusers of
Margolin are the leading union adherents, two of the girls
first laid off for lack of work because of the union boycott,
and Brown, the destitute employee who talked too much
about Margolin's charitable raise to her, which forced him
to withdraw it.
The employee witnesses produced by the Company did
not corroborate these employees in any particular. Nor
did the union-oriented employees who testified as to their
authorization cards and the duties of supervisors. The
remainder of the employees who voted in the secret elec-
tion did not testify. Their silence is a factor when we view
the case as a whole. I am sure that the General Counsel
in his investigation of this case interviewed practically all
employees, so, when the strongest items of evidence
which he can produce are these isolated witnesses of du-
bious veracity to isolated, uncorroborated statements, the
trier of the fact must conclude that the pattern of threats,
coercion, and intimidation is more imagined than real;
e.g., Birdsong's testimony in the affidavit incident that
Margolin was "upset." Nothing can transform being "up-
set" into an unfair labor practice. This is not the kind of
testimony upon which any person should be found guilty
of a violation of Federal law. This testimony has the
clunk of contriviance and not the ring of truth.
By inadvertence, earlier in this Decision it was not
found, as it is now, that the authorization card of Burton
Chase was not a free, voluntary designation of the
Union and should not be counted in the determination
of majority.
RECOMMENDED ORDER
Therefore, for reasons stated above, the complaint
herein should be and hereby is dismissed in its entirety.
12 Blue Flash Express, Inc, 109 NLRB 591